Attachment 2
Bid Summary
2024 ANNUAL STREET PAVEMENT MAINTENANCE
AND REHABILITATION PROJECT (CE 23-24-05)
BID SUMMARY Bid Opening Date: March 28, 2024
ENGINEER’S ESTIMATE: $ 3,267,100.00
Contractor Total Bid ($) Percentage above/below
Engineer’s Estimate
A. Teichert & Son, Inc. dba
Teichert Construction $ 2,732,831.00 16.4% below
O’Grady Paving, Inc. $ 2,940,445.90 10.0% below
Radius Earthwork Inc. $ 3,332,234.15 2.0% above
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-449 Agenda Date: 5/7/2024
REPORT TO COUNCIL AND SUCCESSOR AGENCY TO THE FORMER
REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA
SUBJECT
Action on Resolution Approving a Purchase and Sale Agreement and Other Documents and Actions Necessary to Implement the Sale of the Hyatt Building Parcel Located at 5101 Great America Parkway [APN: 104-55-012] to XHR Acquisitions LLC at a Sales Price of $25 million
BACKGROUND
California Redevelopment Dissolution Laws require all successor agencies to sell all of their assets pursuant to a Department of Finance approved Long Range Property Management Plan (LRPMP).
The Successor Agency to the Former Redevelopment Agency of the City of Santa Clara (Successor Agency) has sold several parcels as required by law including: Santa Clara Gateway Parcel #2, Santa Clara Hilton, the North South parcel, and Great America Theme Park. Proceeds from the sale of these assets were first used to retire Successor Agency debt. Now that all Successor Agency debt has been retired, all land sale proceeds are being distributed to taxing agencies upon closing.
As provided in Health and Safety Code Section 34179(j), on July 1, 2016, oversight of Successor Agency activities was transferred to the Countywide Oversight Board (Oversight Board). The Oversight Board appointed two of its members (Glen Williams, County of Santa Clara and Ngoc Chim, West Valley-Mission Community College District) as a subcommittee to work with the Successor Agency to complete the sale of all its properties.
The Successor Agency owns approximately 1.75 acres of land located at 5101 Great America Parkway [APN: 104-55-012] (Property). The Property is encumbered by a long-term ground lease with I.A. Lodging Santa Clara LLC (Tenant) and is currently being operated as the Hyatt Hotel. The Successor Agency owns the land and the Tenant owns the building improvements.
The Ground Lease was first executed by the Redevelopment Agency in 1985.
The existing Ground Lease provides for several terms of note:
· The primary term of the lease expires in April 2035. There are four additional 10-year options to extend the term and 1 9-year option. The remaining term of the lease plus extensions is approximately 60 years (2084).
· Expansion Rights: Hyatt has a right to lease additional space to expand hotel for up to an additional 283 hotel rooms.
· The operation of the Property is supported by the property owned by the City of Santa Clara (Common Area). The Common Area includes the Convention Center Garage, all surface parking areas, sidewalks and driveways within the Convention Center Complex. The Lease provides the Tenant with rights to 500 parking spaces within the Common Area.
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As part of the 2016 Settlement Agreement with the County of Santa Clara, Santa Clara Unified School District, et al., the Tenant’s Common Area rights per the Lease were to be documented in Covenants, Conditions and Restrictions (CC&Rs). Under the oversight of the Superior Court, CC&Rs were prepared and recorded on the City-owned Common Area property on December 21, 2020.
In compliance with the Surplus Land Act, Gov’t Code § 54220 et seq., on October 19, 2021, the City Council, acting as the governing body of the Successor Agency, adopted Resolution 21-1 declaring the Property as surplus pursuant to Government Code Section 54221(b)(1) and authorized the issuance of a Notice of Availability (NOA). On January 22, 2022, the NOA was issued to provide sixty (60) days for affordable housing interests to notify the Successor Agency of their interest in acquiring the Property. The Successor Agency did not receive any notifications of interest by the March 26, 2022 deadline.
With the concurrence of the Countywide Oversight Board subcommittee, in June 2023, the Successor Agency’s broker, Eastdil Secured, commenced marketing the site to potential buyers. In July and August 2023, two bidding rounds were conducted. At the conclusion of the first round, potential buyers were requested to provide the Successor Agency with their highest and best offer.
Final offers from three firms were submitted in September 2023. The highest offer submitted was from XHR Acquisitions LLC with a purchase price of $25,000,000. XHR Acquisitions LLC is an affiliate of the current Tenant, I.A. Lodging Santa Clara LLC.
DISCUSSION
Key terms of the proposed Purchase and Sale Agreement (Agreement) between the Successor Agency and XHR Acquisitions LLC, a Delaware limited liability company. (Buyer) for the Property include:
Purchase Price: $25,000,000
Deposit: A deposit of $1,000,000 (Deposit) to be deposited into escrow, three days following the execution of Purchase and Sale Agreement. The Deposit will become non-refundable after the expiration of the Diligence Period.
Diligence Period: Approximately twenty (20) days following the execution of the Agreement.
Reps and Warranties: Buyer is purchasing property “as is” with all faults and limitations. Buyer warrants and represents that it is in good standing and has authority to enter into the purchase sale agreement.
Seller represents and warrants to Buyer the authority sell the property and that the property’s existing lease and agreements are in good standing.
Additionally, Seller warrants that it has not aware of any violation of Hazardous Material Laws.
Closing: Closing to fifteen (15) days following the expiration of the Diligence Period.
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Estoppel: Seller will deliver a Seller’s Estoppel prior to Closing. Buyer has requested that Seller deliver a Tenant Estoppel prior to Closing. Successor Agency will work with Hudson Pacific to deliver the Tenant in a form acceptable to Buyer.
Replacement Declaration: CC&Rs will be amended to update the references to the City obligations.
Ballroom License: Ballroom License will be amended to remove the Successor Agency as being referenced as a party to the Hyatt Lease.
The Surplus Land Act also requires that all dispositions of surplus land record an affordability covenant against the land. As no entity responded to the Successor Agency’s NOA in 2022, an affordability covenant is required to be recorded against the Property providing that 15% of the units for any future housing project on the Property must be set aside for lower income households as defined by Section 50079.5 of the California Health and Safety Code for a period of 55 years. The Successor Agency’s requirement to record this covenant prior to the close of escrow is included in the Agreement.
A draft form of Agreement is attached to this Report. Final execution of the Agreement is subject to the approval of the Countywide Oversight Board anticipated to occur in May 2024.
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to the CEQA Guidelines section 15378(a) as it has no potential for resulting in either direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.
FISCAL IMPACT
The sale of the Hyatt Parcel will provide $25,000,000 in sales proceeds (less customary closing costs and broker fees) to the Successor Agency. Sale proceeds will be distributed from the County to the taxing entities. The City of Santa Clara, as a taxing entity will receive approximately 10% of any sale proceeds. Once received, those funds would be included for recommended allocation as part of a future budget process.
COORDINATION
This report has been coordinated with the Finance Department and the City Attorney’s Office.
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
That the City Council, acting as the governing board of the Successor Agency to the Redevelopment Agency of the City of Santa Clara, adopt a Resolution authorizing the City Manager/Executive Officer City of Santa Clara Page 3 of 4 Printed on 5/3/2024
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24-449 Agenda Date: 5/7/2024
to negotiate and execute a Purchase and Sale Agreement between the Successor Agency to the Redevelopment Agency of the City of Santa Clara and XHR Acquisitions LLC for the Hyatt Parcel located at 5101 Great America Parkway (APN: 104-55-012) at a purchase price of $25,000,000 and authorizing the City Manager to execute all documents necessary, including a replacement declaration, amendment to the ballroom lease, affordability covenant and minor modifying amendments, in final forms approved by the City Attorney, to implement the Purchase and Sale Agreement and close escrow.
Reviewed by: Liz Klotz, City Attorney’s Office
Approved by: Jovan D. Grogan, City Manager/Executive Officer
ATTACHMENTS
1. Form of Purchase and Sale Agreement
2. Resolution
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AGREEMENT FOR PURCHASE AND SALE OF PROPERTY
SELLER:
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY
OF SANTA CLARA
and
BUYER:
XHR ACQUISITIONS, LLC, A DELAWARE LIMITED LIABILITY COMPANY PROPERTY:
ADDRESS: 5101 Great America Parkway, Santa Clara,
EXECUTION DATE: _______________, 2024
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AGREEMENT FOR PURCHASE AND SALE OF PROPERTY
This Agreement for Purchase and Sale of Property (this "Agreement") is executed by and between Seller, as identified in the Key Terms (as set forth below), and Buyer, as identified in the Key Terms as of the Execution Date (as defined in the Defined Terms Below). Buyer and Seller hereby agree that Seller shall sell to Buyer and Buyer shall purchase from Seller, upon the following terms and conditions and for the Purchase Price set forth in the Key Terms, the Property, as defined in the Defined Terms.
LIMITATION OF SELLER’S LIABILITY AND BUYER’S WAIVER OF
IMPORTANT RIGHTS:
BUYER AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT AND THE DOCUMENTS TO BE DELIVERED BY SELLER
PURSUANT TO THIS AGREEMENT, BUYER IS BUYING THE PROPERTY ON THE CLOSING DATE "AS IS, WHERE IS WITH ALL FAULTS AND LIMITATIONS" (AS MORE FULLY SET FORTH IN THIS AGREEMENT).
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS
AGREEMENT, SELLER’S LIABILITY AND BUYER’S SOLE AND EXCLUSIVE
REMEDY IN ALL CIRCUMSTANCES AND FOR ALL CLAIMS (AS THAT TERM IS
DEFINED IN THE DEFINED TERMS, AND ALL REFERENCES IN THIS AGREEMENT TO "CLAIMS," "CLAIM," "Claims," or "Claim" SHALL HAVE SUCH
MEANING) ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT
OR THE SALE OF THE PROPERTY TO BUYER INCLUDING, BUT NOT LIMITED TO, SELLER’S BREACH OR TERMINATION OF THIS AGREEMENT, THE CONDITION OR QUALITY OF THE PROPERTY, SELLER’S TITLE TO THE
PROPERTY, THE OCCUPANCY STATUS OF THE PROPERTY, THE SIZE, SQUARE
FOOTAGE, BOUNDARIES, OR LOCATION OF THE PROPERTY, ANY COST OR
EXPENSE INCURRED BY BUYER IN CONDUCTING ITS INVESTIGATION AND/OR
DUE DILIGENCE IN PREPARATION FOR THE PURCHASE OF THE PROPERTY,
OBTAINING OTHER ACCOMMODATIONS, MOVING, STORAGE OR
RELOCATION EXPENSES, OR ANY OTHER COSTS OR EXPENSES INCURRED BY
BUYER IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED AS PROVIDED IN SECTION 11.2 OF THIS AGREEMENT.
FOLLOWING THE DELIVERY OF AN APPROVAL NOTICE, THE BUYER SHALL
NOT BE ENTITLED TO A RETURN OF THE DEPOSIT (AS DEFINED IN THE KEY
TERMS) IN THE EVENT THAT THIS AGREEMENT IS TERMINATED BY SELLER AS RESULT OF BUYER’S BREACH OF THE TERMS OF THIS AGREEMENT;
PROVIDED THAT (A) ANY CONDITIONS PRECEDENT BENEFITING BUYER
HEREUNDER HAVE BEEN SATISFIED OR WAIVED, (B) SELLER HAS
PERFORMED FULLY OR TENDERED PERFORMANCE OF ITS MATERIAL
CLOSING OBLIGATIONS HEREUNDER, (C) SELLER IS OTHERWISE WILLING TO
CONVEY THE PROPERTY PURSUANT TO THIS AGREEMENT AND (D) THE ACTIVE/124809171.12
TERMS OF SECTIONS 4.1, 6.2 AND/OR 13.1 OF THIS AGREEMENT DO NOT OTHERWISE PROVIDE FOR THE RETURN OF THE DEPOSIT TO BUYER.
EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9.6, EACH PARTY AGREES
THAT THE PARTIES SHALL NOT BE LIABLE TO EACH OTHER UNDER ANY
CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, OR PUNITIVE
DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL OR
EQUITABLE PRINCIPLE, THEORY, OR CAUSE OF ACTION ARISING OUT OF OR
RELATED IN ANY WAY TO ANY CLAIM, INCLUDING, BUT NOT LIMITED TO, THE AFOREMENTIONED CLAIMS.
ANY REFERENCE TO A RETURN OF THE DEPOSIT CONTAINED IN THIS
AGREEMENT SHALL MEAN A RETURN OF THE DEPOSIT, LESS ANY ESCROW
CANCELLATION FEES APPLICABLE TO BUYER UNDER THIS AGREEMENT,
PLUS ANY AND ALL INTEREST EARNED ON THE DEPOSIT, AND LESS FEES AND
COSTS PAYABLE FOR SERVICES AND PRODUCTS PROVIDED DURING ESCROW AT BUYER’S REQUEST. UPON RETURN OF THE DEPOSIT TO BUYER PURSUANT
TO THE TERMS OF THIS AGREEMENT, THIS AGREEMENT SHALL BE
TERMINATED, AND BUYER AND SELLER SHALL HAVE NO FURTHER
LIABILITY, OBLIGATION, OR RESPONSIBILITY TO EACH OTHER IN
CONNECTION WITH THIS AGREEMENT, EXCEPT FOR ANY OBLIGATIONS, WHICH SURVIVE TERMINATION OF THIS AGREEMENT. IF THE SALE TO
BUYER CLOSES, THEN BUYER AND SELLER SHALL HAVE NO FURTHER
LIABILITY, OBLIGATION, OR RESPONSIBILITY TO EACH OTHER IN
CONNECTION WITH THIS AGREEMENT EXCEPT AS TO ANY PROVISIONS OF THIS AGREEMENT WHICH EXPRESSLY SURVIVE CLOSING.
SELLER’S LIMITATION OF LIABILITY AND BUYER’S WAIVERS PROVIDED IN
THIS AGREEMENT ARE A MATERIAL PART OF THE CONSIDERATION TO BE
RECEIVED BY SELLER UNDER THIS AGREEMENT AS AGREED TO BY BUYER AND SELLER.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER FURTHER WAIVES THE FOLLOWING, TO THE FULLEST EXTENT PERMITTED BY LAW:
(A) ALL RIGHTS TO FILE AND MAINTAIN AN ACTION AGAINST
SELLER FOR SPECIFIC PERFORMANCE;
(B) RIGHT TO RECORD A LIS PENDENS AGAINST THE PROPERTY OR
TO RECORD THIS AGREEMENT OR A MEMORANDUM THEREOF IN
THE REAL PROPERTY RECORDS (OTHER THAN IN CONNECTION
WITH AN ACTION FOR SPECIFIC PERFORMANCE PERMITTED
HEREUNDER);
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(C) ANY RIGHT TO INVOKE ANY EQUITABLE REMEDY THAT WOULD
PREVENT SELLER FROM CONVEYING THE PROPERTY TO A
THIRD-PARTY BUYER;
(D) ANY CLAIMS ARISING FROM THE ADJUSTMENTS OR PRORATIONS
OR ERRORS IN CALCULATING THE ADJUSTMENTS OR
PRORATIONS THAT ARE OR MAY BE DISCOVERED AFTER
CLOSING, WHICH CLAIMS SHALL BE RESOLVED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.2(F) OF THIS AGREEMENT; (E) ANY REMEDY OF ANY KIND THAT BUYER MIGHT OTHERWISE BE
ENTITLED TO AT LAW OR EQUITY (INCLUDING, BUT NOT
LIMITED TO, RESCISSION OF THIS AGREEMENT), EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT;
(F) ANY RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING FROM OR RELATED IN ANY WAY TO THIS AGREEMENT;
(G) ANY RIGHT TO AVOID THE SALE OF THE PROPERTY OR REDUCE
THE PRICE OR HOLD SELLER LIABLE FOR ANY CLAIMS ARISING
OUT OF OR RELATED IN ANY WAY TO THE CONDITION,
CONSTRUCTION, REPAIR, OR TREATMENT OF THE PROPERTY, OR
ANY DEFECTS, APPARENT OR LATENT, THAT MAY NOW OR
HEREAFTER EXIST WITH RESPECT TO THE PROPERTY,
INCLUDING BUT NOT LIMITED TO ANY CLAIMS RELATING TO
ANY ORDINANCES AND ANY REPAIR COSTS REQUIRED
THEREUNDER;
(H) ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO
ENCROACHMENTS, EASEMENTS, BOUNDARIES, SHORTAGES IN
AREA OR ANY OTHER MATTER THAT WOULD BE DISCLOSED OR
REVEALED BY A SURVEY OR INSPECTION OF THE PROPERTY OR
SEARCH OF PUBLIC RECORDS;
(I) ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO THE
SQUARE FOOTAGE, SIZE, OR LOCATION OF THE PROPERTY, OR
ANY INFORMATION PROVIDED ON THE MULTIPLE LISTING
SERVICE, OR BROCHURES OR WEB SITES OF SELLER OR
SELLER’S AGENT OR LISTING BROKER OR ANY STATEMENTS,
ACTIONS OR CONDUCT OF SELLER’S AGENT OR LISTING
BROKER; AND
(J) ANY CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO
TENANTS OR OCCUPANTS OF THE PROPERTY OR INCOME, IF
ANY, TO BE DERIVED FROM THE PROPERTY OR HAZARDOUS
MATERIALS (AS DEFINED IN THE DEFINED TERMS OF THIS
AGREEMENT).
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THE ABOVE PROVISIONS SHALL SURVIVE THE CLOSING OF THE
TRANSACTION CONTEMPLATED HEREBY, OR THE EARLIER
TERMINATION OF THE AGREEMENT, IF PERMITTED. IF THERE IS A
CONFLICT BETWEEN THE ABOVE PROVISIONS AND THE REMAINDER
OF THIS AGREEMENT, THE PROVISIONS OF THE REMAINDER OF THIS AGREEMENT SHALL PREVAIL.
SELLER'S INITIALS /__ BUYER'S INITIALS /__
[REMAINDER OF PAGE INTENTIALLY LEFT BLANK.]
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ARTICLE I.
KEY TERMS
The following "Key Terms" shall apply to this Agreement:
1.1 "Seller": Successor Agency to the Redevelopment Agency of the City of Santa Clara
"Seller's Contact Person":
"Seller's Notice Address":
City Manager’s Office
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Attn: Jovan Grogan ([email protected])
With copies to:
City Attorney’s Office
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Attn: Glen R. Googins ([email protected])
1.2 "Buyer": XHR Acquisitions, LLC
"Specify Buyer Entity Type": Delaware limited liability company "Buyer's Contact Person": Shamir Kanji
"Buyer's Notice Address":
c/o Xenia Hotels & Resorts, Inc.
200 South Orange Avenue, Suite 2700
Orlando, Florida
Attention: Shamir Kanji
Telephone: 407-246-8145
Email: [email protected]
and to:
c/o Xenia Hotels & Resorts, Inc.
200 South Orange Avenue, Suite 2700
Orlando, Florida 32801
Attention: Taylor Kessel, Esq.
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Telephone: (407) 246-8112
Email: [email protected]
with a copy to:
Goodwin Procter LLP
3 Embarcadero Center, 27th Floor
San Francisco, California 94111
Attention: Teresa K. Goebel
Telephone: (415) 733-6052
Email: [email protected]
1.3 "Purchase Price": Twenty-Five Million Dollars ($25,000,000.00).
1.4 "Deposit": A deposit in an amount equal to One Million Dollars ($1,000,000.00) shall be required to be delivered to Escrow Agent by wire transfer no later than three (3) Business Days after the Execution Date. Upon expiration of the Diligence Period, the Deposit will be non-refundable, except as specifically provided hereunder. In addition to, and not in lieu of the delivery to the Escrow Agent of the Deposit, concurrently with the execution of this Agreement, Buyer shall also wire transfer to the Escrow Agent, for delivery to Seller, the amount of One hundred and no/100 dollars ($100.00) (the "Independent Consideration"), which Independent Consideration Seller and Buyer hereby mutually acknowledge and agree represents adequate bargained for consideration for Seller's execution and delivery of this Agreement and Buyer's right to elect to purchase the Property as provided herein. Said Independent Consideration is in addition to and independent of any other consideration or payment provided for in this Agreement, is nonrefundable to Buyer in all events and shall not be applied to the Purchase Price at Closing. The Independent Consideration shall immediately be released by the Escrow Agent and delivered by wire transfer to Seller. The Escrow Agent is hereby authorized and directed by Buyer and Seller to release the Independent Consideration to Seller immediately upon the Escrow Agent's receipt thereof, without further direction.
1.5 "Closing Date": Fifteen (15) days after expiration of the Diligence Period, or such earlier date as Buyer may elect in its sole discretion by delivering written notice to Seller (provided that the Closing Date shall not be earlier than five (5) Business Days after expiration of the Diligence Period), as such Closing Date may be extended pursuant to the terms of this Agreement.
1.6 "County": Santa Clara County located in the State.
1.7 "State": California.
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ARTICLE II.
DEFINED TERMS
2.1 Definitions. The following "Defined Terms" shall have the following meanings when used in this Agreement:
(a) “Affordability Covenant”: as defined in Section 7.3. (b) "Agreement": This Agreement for Purchase and Sale of Property executed by both Seller and Buyer.
(c) "Assignment of Lease": As defined in Section 7.3.
(d) "Bid Package": All documentation and information made available to Buyer on Seller’s due diligence website located at https://protectus.mimecast.com/s/V1MeC9r23BTkR0oAMI3Cl9?domain=esi.eastdilsecured.com at least two (2) Business Days prior to execution of this Agreement, by Seller or Seller’s agent. (e) "Bill of Sale": As defined in Section 7.3.
(f) "Business Day": Any day, other than a Saturday, Sunday or legal holiday, on which business is conducted by national banking institutions in San Francisco, California.
(g) "Claims": Any and all claims, demands, causes of action, whether administrative or judicial, losses, costs (including any and all reasonable attorneys' fees, court costs, and reasonable costs of investigation, litigation, and settlement), expenses, sanctions, orders, curtailments, interest, liabilities, penalties, fines, expenses, liens, judgments, compensation, fees, loss of profits, injuries, death, response costs and/or damages, of any kind whatsoever, whether direct or indirect, known or unknown, fixed or contingent, joint or several, criminal or civil, or in law or in equity.
(h) "Closing": The closing of the transaction contemplated by this Agreement.
(i) “Convention Center Campus CC&Rs”: That certain Declaration of Covenants, Conditions and Restrictions by the City of Santa Clara and the Successor Agency to the Redevelopment Agency of the City of Santa Clara, collectively, the Declarant, recorded on December 14, 2020 as Instrument No. 24756283.
(j) "Deed": The grant deed in the form of Exhibit B hereto conveying fee title to the Real Property to Buyer, duly executed by Seller and acknowledged and in proper form for recordation in the County.
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(k) "Diligence Period": The period commencing on the Execution Date and ending at 5:00 p.m. Pacific time on the date twenty (20) days following the Execution Date1.
(l) "Escrow Agent": First American Title Insurance Company, National Commercial Services, 333 W. Santa Clara Street, Suite 220, San Jose, CA 95113, Attention: Debby (Zankich) Magliocco, Email:
[email protected] Direct: 408.797.4452
(m) "Event": Any fire or other casualty affecting the Property or any actual or threatened (to the extent that Seller has current actual knowledge thereof) taking or condemnation of all or any portion of the Property. (n) "Execution Date": The date set forth on the cover page of this Agreement, which date shall be the later of the date Buyer and Seller have each executed this Agreement.
(o) "Hazardous Materials": Any toxic, radioactive, caustic or otherwise hazardous substance, including petroleum, its derivatives, by-products and other hydrocarbons, or any substance having any constituent elements displaying any of the foregoing characteristics. The term "Hazardous Materials" includes, without limitation, any substance regulated under any and all federal, state and local statutes, laws (including case law), regulations, ordinances, rules, judgments, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions, whether now or hereafter in effect, relating to human health, the environment or to emissions, discharges or releases of pollutants, contaminants, toxic substances, hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous materials or wastes or the clean-up or other remediation thereof.
(p) "Hazardous Materials Laws": all federal, state and local laws, ordinances, rules and regulations now or hereafter in force, as amended from time to time, and all federal and state court decisions, consent decrees and orders interpreting or enforcing any of the foregoing, in any way relating to or regulating human health or safety, or industrial hygiene or environmental conditions, or protection of the environment, or pollution or contamination of the air, soil, surface water or groundwater, and includes, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 United States Code section 9601, et seq., the Resource Conservation and
1 NTD: To be updated with specific date.
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Recovery Act, 42 United States Code section 6901, et seq., and the Clean Water Act, 33 United States Code section 1251, et seq.; the California Hazardous Waste Control Act, California Health & Safety Code ("H.&S.C.") §§25100 et seq.; California Hazardous Substance Account Act, H.&S.C. §§25300 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, H.&S.C. §§25249 et seq.; the California Hazardous Waste Management Act, H.&S.C. §§25170.1 et seq.; H.&S.C. §§25501 et seq (Hazardous Materials Response Plans and Inventory); the Porter Cologne Water Control Act, Ca. Water Code §§13000 et seq.; H&S.C. §§25280, et seq. (Underground Storage of Hazardous Substances); H&S.C. §25915 et seq; H.&S.C. § 25359.7; H.&S.C. §§2595 et seq.; Cal Labor Code §§ 6501.5 et seq.; and Title 22 of the California Code of Regulations, all as amended to the date hereof. (q) "Hazardous Materials Reports": Any and all studies, reports, analyses, information, or other written records regarding the presence or absence of Hazardous Materials at, on, in, under or relating to the Land. (r) "Hyatt Lease": That certain lease entered into by and between the former Redevelopment Agency of the City of Santa Clara as lessor, and SCCC Associates, as lessee, dated April 30, 1985, and recorded on May 16, 1985 as Instrument No. 8411269, as supplemented by that certain Supplement to Hotel Ground Lease between Former RDA and SCCC Associates dated May 10, 1985, recorded on May 16, 1985, as Instrument No. 8411271, as modified by that certain Assignment and Assumption Agreement dated October 31, 1986 by and between SCCC Associates and SCCHLP, recorded November 12, 1986 as Instrument No. 9026982, as amended by that certain Amendment to Hotel Ground Lease between Former RDA and SCCHLP dated January 13, 1987, and recorded on December 2, 1987 as Instrument No. 9524015, as further amended by that certain Second Amendment to Hotel Ground Lease between the Former RDA and SCCHLP dated November 24, 1987, and recorded on December 2, 1987 as Instrument No. 9524016, as further amended by that certain Third Amendment to Hotel Ground Lease between Former RDA and SCCHLP dated April 25, 1988, and recorded on July 13, 1988 as Instrument No. 9755389, as modified by that certain Assignment and Assumption Agreement dated December 22, 1997, by and between Travelers Casualty and Surety Company and T-W Santa Clara LLC, and recorded on December 22, 1997 as Instrument No. 13986588, as supplemented by that certain First Amended and Restated Supplement to Hotel Ground Lease between Former RDA and TWSC dated March 17, 1998, and recorded on April 21, 1998 as Instrument No. 14150275, as further amended by that certain Fourth Amendment to Hotel Ground Lease between the Former RDA and TWSC dated March 17, 1998, and recorded on April 21, 1998 as Instrument No. 14150278, as further amended by that certain Fifth Amendment to Hotel Ground Lease between Former RDA and TWSC dated May 14, 1998, and ACTIVE/124809171.12
recorded on May 15, 1998 as Instrument No. 14185858, as modified by that certain Assignment and Assumption of Hotel Lease dated December 1, 1999, by and between T-W Santa Clara LLC and SHC-W Santa Clara, L.L.C, recorded on December 3, 1999 as Instrument No. 15077819, as further supplemented by that certain Second Supplement to Hotel Ground Lease made by the Former RDA and dated February 13, 2001, and recorded on February 16, 2001 as Instrument No. 15563483, as modified by that certain Assignment and Assumption of Hotel Ground Lease dated June 29, 2004, by and between SHC-W Santa Clara LLC and SHC New Santa Clara L.L.C., recorded July 8, 2004 as Instrument No. 17886492, and further modified by that certain Assignment and Assumption of Ground Lease, Ballroom License Agreement, and Recreation Facilities Agreement, and Deed of Improvements dated December 15, 2005, by and between SHC New Santa Clara, L.L.C and Hyatt Equities, L.L.C, recorded on December 15, 2005 as Instrument No. 18721549, as further amended by that certain Sixth Amendment to Hotel Ground Lease between the former RDA and SHC New Santa Clara L.L.C. dated December 13, 2005 and recorded on July 14, 2006 as Instrument No. 19016251; and as further supplemented by the Third Supplement to Hotel Ground Lease between the Former RDA and Hyatt Equities LLC dated April 10, 2007 and recorded on April 11, 2007 as Instrument No. 19379342, as modified by that certain Assignment and Assumption Agreement (Convention Complex Properties) dated March 8, 2011, by and between Santa Clara Redevelopment Agency and the City, recorded on June 23, 2011 as Instrument No. 21216114, and as further modified by that certain Assignment and Assumption of Ground Lease, Ballroom License Agreement and Recreational Facilities Agreement and Deed of Improvements dated September 23, 2013, by and between Hyatt Equities, L.L.C and IA Lodging Santa Clara L.L.C, recorded on September 26, 2013 as Instrument No. 22397821. The lessor’s interest under the lease was conveyed to the Successor Agency to the Redevelopment Agency of the City of Santa Clara, a public entity, by that certain quitclaim deed recorded on December 17, 2015 as Instrument No. 23175557 of Official Records.
(s) "Intangible Property": The Permits and any other personal property of worth that is not physical in nature that is owned by Seller and that relates to or involves the Real Property, including, without limitation, intellectual property, goodwill, permits, approvals, entitlements and other intangible property owned by Seller, if any, and used solely in connection with the Property, including, without limitation, all of Seller’s right, title and interest in any warranties and guaranties. (t) "Land": Fee title to the parcel of real property, as more particularly described on the attached Exhibit A.
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(u) "Leases": The Hyatt Lease and any and all other leases, tenancies, licenses and other rights of occupancy or use of or for any portion of the Real Property or the Personal Property (including all amendments and renewals thereof).
(v) "Net Proceeds": The Proceeds less any sums reasonably incurred by Seller prior to and/or after Closing to process and resolve a claim with Seller's insurance company or any condemning authority, including but not limited to reasonable attorneys' fees and costs, up to and equal to the Purchase Price.
(w) "Permits": Any and all licenses, permits, authorizations, certificates of occupancy and other approvals that are in effect for the current use and operation of the Property.
(x) "Personal Property": All tangible personal property and fixtures owned by Seller and located on or attached to the Real Property. "Personal Property" does not include property owned by others such as Tenants under Leases. The term "Personal Property" shall not include insurance policies, utility deposits or bank accounts.
(y) "Pre-Existing Insurance Claims": Any insurance claims made or to be made by Seller for any Event occurring prior to the Execution Date relating to the Property.
(z) "Proceeds": Any insurance proceeds or condemnation awards payable to Seller on account of any Event.
(aa) "Proceeds from Pre-Existing Insurance Claims": Any proceeds resulting from any Pre-Existing Insurance Claims, regardless of whether such proceeds are received prior to or after Closing.
(bb) "Property": Collectively, the Real Property, the Personal Property and the Intangible Property.
(cc) "Prorations Date": The day prior to the Closing Date. (dd) "Pursuit Costs": those reasonable, out of pocket costs incurred by Buyer in connection with its investigation and efforts to purchase the Property, including, without limitation, reasonable fees and costs of counsel and consultants, all of which shall be evidenced by written documentation reasonably acceptable to Seller, but in no event shall the Pursuit Costs payable by Seller to Buyer exceed One Hundred Thousand and No/100 Dollars ($100,000.00).
(ee) "Real Property": The Land, together with Seller's interest in the buildings and other improvements and fixtures located thereon or ACTIVE/124809171.12
attached thereto, together with Seller's interest in all rights of ways, streets, alleys, air rights, developments, water rights, riparian rights and to water stock, ingress and egress, easements, rights, privileges, hereditaments and appurtenances thereto or in any way appertaining thereto.
(ff) “Recreational Facilities Agreement” an Agreement date dated April 30, 1985,‘ between the City of Santa Clara’s predecessor in interest, the Sports and Open Space Authority of the City of Santa Clara, and Defendant IA Lodging Santa Clara, LLC’s predecessor in interest, SCCC Associates, which Recreation Facilities Agreement was recorded in the Official Records on May 16, 1985, as Instrument No. 8411277 in Book 1348, Page 1, as amended by that certain First Amendment to Recreation Facilities Agreement, dated November 24, 1987 recorded in the Official Records on December 2, 1987 in Book K377, Page 638 and as further amended by that certain Second Amendment to Recreation Facilities Agreement dated March 17, 1998 recorded in the Official Records on April 21, 1998, as Instrument No. 14150277 and as further amended by that certain First Supplement to Recreation Facilities Agreement, recorded in the Official Records on February 16, 2001 as Instrument No. 15563487, and condemned on September 27, 2021 to the City of Santa Clara.
(gg) "Service Contracts": Any and all management, service, maintenance, supply or operating contracts, or other agreements, however termed, written or oral, affecting the use, ownership, maintenance or operation of all or any part of the Property (but specifically excluding any Leases and any management agreements).
(hh) “Taxes”: State taxes, personal property taxes, special assessments (and installments thereof), and other governmental taxes and charges relating to the Property, including annual or periodic permit fees (but excluding, for clarity, income taxes and Taxes payable by Tenants). (ii) "Tenants": The tenant under the Hyatt Lease and those other persons or entities holding rights of tenants under Leases, if any. (jj) "Title Commitment": The commitment for issuance of an owner's title insurance policy issued by the Title Company in favor of Buyer in the full amount of the Purchase Price.
(kk) "Title Company": First American Title Insurance Company at the office selected by the Escrow Agent.
(ll) “Title Policy”; A 2021 ALTA Form extended Owner’s Title Insurance Policy insuring Buyer in the amount of the Purchase Price, subject only to the Acceptable Encumbrances.
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(mm) “Title Report”: The First American Title Insurance Company Preliminary Report dated as of October 17, 2023; Order Number: NCS997300-SC.
2.2 Other Defined Terms. Other capitalized terms contained in this Agreement shall have the meanings assigned to them herein.
ARTICLE III.
CONDITION
3.1 Information Regarding Property. Seller has provided and may in the future provide to Buyer documents and information pertaining to the Property, including without limitation, the Bid Package. To the extent available, Seller shall provide or make available to Buyer all construction documents, books, records, financials, and other items reasonably requested by Buyer relating to the operation and construction of the Property. All of such information is provided simply as an accommodation to Buyer, and except as otherwise provided in this Agreement or in any documents delivered by Seller pursuant to this Agreement at Closing (including, without limitation, pursuant to Section 7.3), Seller makes no representations as to their accuracy or completeness. Buyer understands that some of the foregoing documents and information were provided by others to Seller and were not prepared by or verified by Seller. In no event shall Seller be obligated to deliver or make available to Buyer any of Seller's internal memoranda, attorneyclient privileged materials or appraisals of the Property, if any.
3.2 Diligence Period. Buyer's obligation to purchase the Property is conditioned upon Buyer's review and approval, prior to the expiration of the Diligence Period and in Buyer's sole discretion, of all matters pertaining to the physical, structural, electrical, mechanical, soil, drainage, environmental, economic, tenancy, zoning, land use and other governmental compliance matters and conditions respecting the Property, including without limitation the items included in the Bid Package.
If, prior to the expiration of the Diligence Period, based upon Buyer's review, examination and/or inspection of the Property, Buyer determines in its sole and absolute discretion, for any reason or for no reason, that it no longer intends to acquire the Property, then Buyer shall promptly notify Seller of such determination in writing, whereupon this Agreement, and the obligations of the parties to purchase and sell the Property hereunder, shall terminate, and Escrow Agent shall promptly release the Deposit and interest accrued thereon to Buyer. If, however, on or before the expiration of the Diligence Period, Buyer determines to proceed with the acquisition of the Property at Closing, then Buyer shall promptly notify Seller of such determination in writing ("Approval Notice"). If Buyer fails to deliver the Approval Notice to Seller on or before the expiration of the Diligence Period, Buyer shall be deemed to have elected to terminate this Agreement, and this Agreement and the obligations of the parties hereunder shall terminate (subject to the survival of any obligations that expressly survive ACTIVE/124809171.12
termination of this Agreement), and Escrow Agent shall promptly release the Deposit and interest accrued thereon to Buyer.
3.3 Access. Subject to the rights of the Tenant pursuant to the Hyatt Lease, until the Closing Date, provided this Agreement is not earlier terminated as permitted herein, Buyer and Buyer’s agents and contractors (collectively, “Buyer’s Representatives”) shall be entitled to enter upon the Property at all reasonable times, but only for the purpose of conducting tests and making site inspections and investigations. In doing so, however, Buyer agrees (a) that no invasive testing may be conducted without Seller's prior consent, which may be withheld by Seller in its sole discretion, (b) not to cause any damage or make any physical changes to the Property and (c) not to interfere with the rights of Tenants or others who may have a legal right to use or occupy the Property. Seller or its representative shall have the right to be present to observe any testing or other inspection performed on the Property. Under no circumstances shall the right of entry granted herein be interpreted as delivery of possession of the Property prior to Closing. Buyer’s Representatives accessing the Real Property shall maintain (or cause to be maintained) at all times during their entry upon the Property, commercial general liability insurance with limits of not less than Two Million Dollars ($2,000,000) combined single limit, bodily injury, death and property damage insurance per occurrence with proper endorsements naming Seller as an additional insured. At Seller's request, Buyer’s Representatives accessing the Real Property shall each deliver a certificate issued by the insurance carrier of each such policy to Seller evidencing the endorsements naming Seller as an additional insured prior to entry upon the Property. Nothing in this Section 3.3. shall impact Buyer’s affiliate’s rights as Tenant under the Hyatt Lease.
3.4 Indemnification. Buyer hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to Seller) Seller, its board members, its officers, its employees and its Oversight Board members from and against any and all Claims to the extent resulting from, arising from, or occasioned in whole or in part by any act or omission by Buyer’s Representatives resulting from Buyer's inspection, examination and inquiry of or on the Property (but not including any claims resulting from the discovery or disclosure of pre-existing physical or environmental conditions or the non-negligent aggravation of preexisting physical or environmental conditions on, in, under or about the Property), except to the extent resulting from, arising from, or occasioned in whole or in part by any negligence or willful misconduct of Seller, its board members, officers and/or employees, or any of their respective affiliates. Nothing in this Section 3.4 shall impact Buyer’s affiliate’s rights or obligations as Tenant under the Hyatt Lease. The provisions of this Section shall survive Closing or termination of this Agreement.
3.5 Estoppels. Prior to the expiration of the Diligence Period, and as a condition precedent to Closing for the benefit of Buyer, Seller shall have obtained and delivered to Buyer (i) an estoppel certificate, addressed to Buyer and such other parties as Buyer may reasonably designate, from Seller in the form ACTIVE/124809171.12
attached hereto as Exhibit D-1 (the "Hyatt Estoppel"), (ii) an estoppel certificate, addressed to Buyer and such other parties as Buyer may reasonably designate from each counterparty under the Convention Center Campus CC&Rs in the form attached hereto as Exhibit D-2 (“CC&R Estoppel”) and (iii) an estoppel certificated, addressed to Buyer and such other parties as Buyer may reasonably designated in the form attached hereto as Exhibit D-3 (the “Ballroom Estoppel” and together with the Hyatt Estoppel and the CC&R Estoppels, the “Required Estoppels”). In no event shall the Hyatt Estoppel, CC&R Estoppel, nor the Ballroom Estoppel delivered at Closing be dated earlier than 45 days prior to Closing. The Required Estoppels shall not contain any information that is materially inconsistent with Seller's representations and warranties contained in this Agreement, the Hyatt Lease, the Convention Center Campus CC&Rs or that certain Ballroom License Agreement recorded May 16, 1985 as Instrument No. 8411276 in Book J347, Page 2253 (as amended and assigned, the “Ballroom License”) (as applicable), and shall not claim any default by Seller or outstanding indemnity obligation of Seller under the Hyatt Lease, the Convention Center Campus CC&Rs, or the Ballroom License as applicable.
Neither the CC&R Estoppel nor the Ballroom Estoppel shall be subject to the limitations in Section 9.4 and Section 9.5. The immediately preceding sentence shall survive Closing.
3.6 Buyer's Obligations with Respect to Inspections. Promptly after Buyer's physical examinations of the Property, but in no event later than ten (10) Business Days after Seller’s written notice of any damage to the Property caused by Buyer’s Representative, Buyer shall repair the damage, if any, caused by such physical examinations to substantially the same condition that existed prior to Buyer’s access to the Property. Buyer shall promptly pay for all inspections and shall use commercially reasonable efforts to prevent the filing of any liens arising from such inspections against the Property. If any such liens are filed, Buyer shall promptly cause them to be released or otherwise eliminated from being a lien upon the Property. In the event the transaction contemplated by this Agreement is not closed for any reason whatsoever, Buyer shall remain obligated with respect to the indemnities contained in Section 3.4 and the repair obligations set forth in this Section 3.6. The provisions of this Section shall survive termination of this Agreement.
3.7 Condition of the Property. Buyer hereby acknowledges that prior to the expiration of the Diligence Period Seller is obligated to have provided Buyer sufficient opportunity make such independent factual, physical and legal examinations and inquiries as Buyer deems necessary and desirable with respect to the Property and the transaction contemplated by this Agreement. Any inspections conducted by Buyer after the expiration of the Diligence Period do not and shall not in any way relieve Buyer of any of its obligations under this Agreement, and the following provisions shall survive Closing:
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(a) Based upon Buyer’s familiarity with, and due diligence relating to the Property and pertinent knowledge as to the market in which the Property is situated and in direct consideration of Seller’s decision to sell the Property to Buyer for the Purchase Price, Buyer does hereby acknowledge, represent, warrant and agree to and with Seller that, except as otherwise expressly provided in this Agreement and the Deed and the other documents to be delivered at Closing by Seller (including pursuant to Section 7.3): (i) Buyer is expressly purchasing the Property in its existing condition "AS IS, WHERE IS, AND WITH ALL FAULTS" whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) Seller specifically bargained for the assumption by Buyer of all responsibility to inspect and investigate the Property and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (iv) as of Closing Buyer shall have undertaken all such inspections and investigations of the Property as Buyer deems necessary or appropriate with respect to the Property and the suitability of the Property for Buyer's intended use, and based upon same, Buyer is relying strictly and solely upon such inspections and examinations (and Seller’s representations, warranties and covenants included herein) and the advice and counsel of its own consultants, agents, legal counsel and officers and Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property; (v) Seller is not making and has not made any warranty or representation with respect to any materials, any marketing information, or offering memoranda, or pamphlets listing or describing the property, or other data provided by Seller or others on behalf of Seller to Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or quality or any other aspect of all or any part of the Property as an inducement to Buyer to enter into this Agreement and thereafter to purchase the Property or for any other purpose; (vi) prior to the Execution Date, Buyer had full access to the Bid Package and thoroughly reviewed or had a reasonable opportunity to review this Agreement and the contents of the Bid Package and freely consulted with persons of Buyer's own choosing regarding the terms and conditions of this Agreement and the Bid Package, including but not limited to consultation with legal counsel of its own choosing; and (vii) by reason of all the foregoing, Buyer is assuming the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the Property.
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DEED, AND THE OTHER DOCUMENTS TO
BE DELIVERED AT CLOSING BY SELLER (INCLUDING,
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PURSUANT TO SECTION 7.3), SELLER HEREBY DISCLAIMS
ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER
(INCLUDING WARRANTIES OF HABITABILITY AND FITNESS
FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES
WITH RESPECT TO THE PROPERTY, TAX LIABILITIES,
ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR
UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL
APPROVALS, OR THE SOIL CONDITIONS OF THE LAND.
BUYER FURTHER ACKNOWLEDGES THAT BUYER IS BUYING
THE PROPERTY "AS IS" AND IN ITS PRESENT CONDITION AND
THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DEED AND THE OTHER DOCUMENTS TO
BE DELIVERED AT CLOSING BY SELLER (INCLUDING
PURSUANT TO SECTION 7.3), BUYER IS NOT RELYING UPON
ANY REPRESENTATION OF ANY KIND OR NATURE MADE BY
SELLER, OR ANY OF ITS EMPLOYEES OR AGENTS WITH
RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN
FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DEED AND
THE OTHER DOCUMENTS TO BE DELIVERED AT CLOSING BY
SELLER (INCLUDING, PURSUANT TO SECTION 7.3).
(c) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DEED, AND THE OTHER DOCUMENTS TO
BE DELIVERED PURSUANT TO SECTION 7.3, SELLER MAKES
NO WARRANTY WITH RESPECT TO THE PRESENCE ON OR
BENEATH THE LAND (OR ANY PARCEL IN PROXIMITY
THERETO) OF HAZARDOUS MATERIALS. BY ACCEPTANCE OF
THIS AGREEMENT AND THE DEED, BUYER ACKNOWLEDGES
THAT BUYER'S OPPORTUNITY FOR INSPECTION AND
INVESTIGATION OF SUCH LAND HAS BEEN ADEQUATE TO
ENABLE BUYER TO MAKE BUYER'S OWN DETERMINATION
WITH RESPECT TO THE PRESENCE ON OR BENEATH THE
LAND OF SUCH HAZARDOUS MATERIALS.
(d) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DEED, AND THE OTHER DOCUMENTS TO
BE DELIVERED PURSUANT TO SECTION 7.3, BUYER
ACKNOWLEDGES AND AGREES THAT, THE SELLER SHALL
NOT BE RESPONSIBLE FOR ANY CLAIMS ARISING OUT OF OR
RELATING TO MOLD AND/OR OTHER MICROSCOPIC
ORGANISMS AT THE PROPERTY INCLUDING BUT NOT
LIMITED TO PROPERTY DAMAGES, PERSONAL INJURY,
ADVERSE HEALTH EFFECTS, LOSS OF INCOME, EMOTIONAL
DISTRESS, DEATH, LOSS OF USE OR LOSS OF VALUE AND
BUYER HEREBY IRREVOCABLY RELEASES SELLER, ITS
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BOARD MEMBERS, ITS OFFICERS, ITS EMPLOYEES AND ITS
OVERSIGHT BOARD MEMBERS FROM THE SAME. BUYER
HEREBY ACKNOWLEDGES THAT IT HAS READ AND
UNDERSTANDS THIS DISCLOSURE AND RELEASE AND
AGREES TO THE PROVISIONS CONTAINED HEREIN.
(e) Other than as expressly set forth in this Agreement, in the Deed and in the other documents to be delivered by Seller at Closing (including pursuant to Section 7.3), neither Seller nor any agents, representatives, or employees of Seller have made any representations or warranties, direct or indirect, oral or written, express or implied, to Buyer or any agents, representatives, or employees of Buyer with respect to the Property, including, without limitation, (a) the physical condition of the Property (including the presence or absence of Hazardous Materials), zoning, set-back and other ordinances, codes, regulations, rules, requirements and orders affecting occupancy or operation of the Property, plans, specifications, any affordable housing restrictions or requirements, costs or other estimates, projections, including income and expense projections concerning the same, and (b) the Property’s compliance with any environmental laws, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Safe Drinking Water Act (42 U.S.C. Section 300f et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the California Hazardous Waste Control Law (California Health and Safety Code Sections 25100-25600), the Porter-Cologne Water Quality Control Act (California Health and Safety Code Section 13000 et seq.), and the Safe Drinking Water and Toxic Enforcement Act (California Health and Safety Code Section 25249.5 et seq.). Buyer specifically waives and releases Seller and its respective successors, assigns, board members, Oversight Board members, representatives, employees, agents, adjustors, accountants, officers, officials, and attorneys from all (1) warranties, express, implied, statutory or otherwise (including warranties of merchantability and warranties of fitness for use or acceptability for the purpose intended by Buyer) with respect to the Property or its condition or the prospects, operations or results of operations of the Property except with respect to the express representations and warranties contained in the Agreement, the Deed and the other documents to be delivered by Seller at Closing (including pursuant to Section 7.3), and (2) except with respect to Claims arising out of Seller’s breach of any representation, warranty, covenant or agreement in this Agreement, the Deed and any other documents delivered by Seller at Closing (including pursuant to Section 7.3), all Claims that Buyer would have against Seller.
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In connection with this Section 3.7, Buyer expressly waives the benefits of Section 1542 of the California Civil Code, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM
OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. OR RELEASED PARTY."
Thus, notwithstanding the provisions of Section 1542 or of any similar statute, and for the purpose of implementing a full and complete release, Buyer expressly acknowledges that this Agreement is intended to include in its effect, without limitation, all Claims which are known and all Claims which Buyer does not know or suspect to exist in Buyer’s favor at the time of execution of this Agreement and that this Agreement contemplates the extinguishment of all such Claims; provided that such extinguishment shall not apply to any Claims arising pursuant to the express provisions of this Agreement.
Initials of Buyer:
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ARTICLE IV.
CONDITIONS FOR CLOSING
4.1 Seller Conditions. The parties acknowledge that Seller’s execution of this Agreement and the effectiveness of Buyer’s execution of this Agreement are each subject to the approval of (i) Seller’s Governing Board and (ii) Seller’s Countywide Oversight Board (collectively, the “Board Approvals”). If Buyer has executed this Agreement prior to receipt of the Board Approvals and thereafter the Board Approvals are not obtained by [NTD: Enter that date that is 30 days after the Effective Date], then, from and after such date and without limitation of Buyer’s rights hereunder, Buyer shall have the right (but not the obligation), by delivering written notice to Seller and Escrow Agent, to rescind its execution of this Agreement and, upon such notice of rescission, the Deposit and any interest earned thereon (to the extent any has been deposited by Buyer) shall be returned immediately to Buyer in full by Escrow Agent and the parties shall have no further rights and obligations to each other hereunder. Seller shall use commercially reasonable efforts to obtain the Board Approvals within the applicable time periods set forth above and shall provide Buyer with prompt notice of Seller's receipt of the Board Approvals. If this Agreement is disapproved by any of these entities, Seller shall immediately notify Buyer in writing of the disapproval and this Agreement shall automatically terminate, the Deposit and any interest earned thereon (to the extent any has been deposited by Buyer) shall be returned immediately to Buyer in full by Escrow Agent and the parties shall have no further rights and obligations to each other hereunder.
4.2 Buyer’s Conditions. The obligation of Buyer to purchase the Property from Seller, and to perform the obligations required to be performed by Buyer at the Closing, are subject to each of the following conditions precedent (“Buyer’s Conditions”):
(a) Closing Documents. Seller shall have tendered at Closing all closing documents to which Seller is a party or which Seller is otherwise obligated to deliver under this Agreement.
(b) Compliance with Agreement. Seller shall have performed and complied in all material respects with its obligations under this Agreement. (c) Representations and Warranties. All of Seller’s representations and warranties under this Agreement, including but not limited to Sections
9.2 and 13.16 are true and correct in all material respects as of Closing. (d) Title Policy. The Title Company shall have irrevocably committed to issue, but for payment of premium (other than premium or other cost to be paid by the Seller pursuant to this Agreement), the Title Policy. (e) Required Estoppels. Seller shall have delivered the Required Estoppels.
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(f) Replacement Declaration. Seller shall have caused, at or prior to Closing, the execution and recordation of a Replacement Declaration (as defined in Convention Center Campus CC&Rs) in the real property records of the County, which Replacement Declaration shall be in a form reasonably acceptable to Buyer and contain for the benefit Tenant (and its permitted sub tenants) the same rights currently afforded to Tenant under the Hyatt Lease and the Convention Center Campus CC&Rs, including but not limited to the hotel-expansion rights on Parcel 1a (as defined in Convention Center Campus CC&Rs) as provided in Section 402 of the Hyatt Lease and section 2.1.1 of the Convention Center Campus CC&Rs and the rights to utilize the Common Area (as defined in the Convention Center Campus CC&Rs) for utilities access, pedestrian and vehicular access, parking, landscaping and such other benefits as provided to Tenant in the Hyatt Lease and Convention Center Campus CC&Rs. The expense and cost-allocation obligations of Tenant for the foregoing access and use of the Common Area under the Replacement Declaration shall be in the same kind and amount as currently imposed on Tenant by the Hyatt Lease. Upon provision of written notice to the other at least one (1) Business Day prior to the thenscheduled Closing Date, Each of Buyer and Seller, in its sole discretion, may extend the Closing Date for successive periods of thirty (30) days each for up to an aggregate of one hundred eighty (180) days (as provided in the Convention Center Campus CC&Rs) as necessary to permit recordation of the Replacement Declaration in the foregoing form; provided that Buyer and Seller shall negotiate the Replacement Declaration in good faith and Seller shall use commercially reasonable efforts to cause the owners of Parcel 2, Parcel 3 and Parcel 4 (each as defined in Convention Center Campus CC&Rs) to negotiate the Replacement Declaration in good faith. For the avoidance of doubt, “Tenant” under this section 4.1 shall mean IA Lodging Santa Clara, L.L.C., the tenant under the Hyatt Lease. For the avoidance of doubt, so long as Seller has used commercially reasonable efforts to obtain the Replacement Declaration, Seller’s failure to deliver the Replacement Declaration Documents shall constitute a failed closing condition but not a Seller default.
(g) Ballroom License Amendment. Buyer and Seller shall enter into an amendment to the Ballroom License in a form reasonably acceptable to Buyer and Seller (the “Amendment to Ballroom License”) to account for Seller’s removal as a party to the Hyatt Lease upon Closing and, if requested by Buyer, Buyer’s assignment of its rights as licensee under such Ballroom License to its affiliate upon the expiration or termination of the Hyatt Lease, and Seller shall record the same on or before Closing.
(h) Effect of Non-Satisfaction of a Condition. If any condition set forth in Section 4.2 is not satisfied or waived by Buyer on or before the Closing ACTIVE/124809171.12
Date, Buyer may, in its sole and absolute discretion, terminate this Agreement by notice to the Seller. If this Agreement is terminated pursuant to this Article IV, notwithstanding any other provision of this Agreement, all Buyer documents and funds, including the Deposit and any interest thereon, shall be returned to Buyer, and neither party shall have any further rights or obligations hereunder, except for any obligations which expressly survive the termination of this Agreement and the payment of any escrow and title cancellation fees which shall be borne equally by Buyer and Seller.
ARTICLE V.
TERMS OF PAYMENT; CLOSING ADJUSTMENTS
5.1 Payment of Purchase Price. The Purchase Price shall be paid as follows:
(a) Credit for Deposit. If Buyer fails to deliver the Deposit as and when required by this Agreement, Seller, at Seller's sole discretion, may terminate this Agreement by providing notice to Buyer of such termination and, thereafter, this Agreement shall be terminated and neither party shall have any further rights or obligations hereunder. The Deposit is consideration for the rights granted to Buyer to purchase the Property and, following the expiration of the Diligence Period, provided this Agreement has not otherwise been terminated, shall be nonrefundable except as specifically provided herein. If and only to the extent Buyer in its sole discretion and dealing entirely with the Escrow Agent (it being acknowledged by Buyer that Seller shall have no responsibility or liability in connection therewith) supplies Buyer's Taxpayer Identification Number to the Escrow Agent and executes all necessary forms required by the Escrow Agent, the Deposit shall be held in an interest bearing account with a financial institution selected by the Escrow Agent and reasonably approved by Buyer. Any accrued interest shall become a part of the Deposit to be applied or disposed of in the same manner as the Deposit. At Closing Buyer shall receive a credit against the Purchase Price in the amount of the Deposit (less any accrued interest thereon) and the Deposit (less any accrued interest thereon) shall be delivered to Seller. Any accrued interest on the Deposit shall be delivered upon Closing by the Escrow Agent to Buyer by wire transfer of good federal funds from the Escrow Agent.
(b) Payment at Closing. The balance of the Purchase Price, subject to the prorations and adjustments for which provision is herein made, shall be paid by Buyer to the Escrow Agent by wire transfer to Escrow Agent's account at the time of Closing, and the Escrow Agent shall immediately upon Closing disburse such funds pursuant to the Closing Statement.
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and this Agreement IS NOT contingent on Buyer obtaining financing for the purchase of the Property. Wired funds must be received in the Escrow Agent’s account prior to 2:00 p.m. Pacific Standard Time on the Closing Date for Seller to receive the benefit of such funds.
Accordingly, if funds are received by Escrow Agent after 2:00 p.m.
Pacific Standard Time on any day, they shall not be deemed received until the following Business Day. If the Escrow Agent does not receive the funds on the Closing Date and Seller elects not to (or is not entitled to) exercise any of its default remedies, Buyer shall pay interest on the Purchase Price from the Closing Date until the funds are deemed to have been received by the Escrow Agent, at the rate of fifteen percent (15%) per annum. For the avoidance of doubt, if the funds are received by the Escrow Agent on the Closing Date after 2:00 p.m. Pacific Standard Time, Buyer shall not be in default hereunder but such interest shall be payable. The interest amount represents a fair and reasonable estimate of the costs that Seller will incur by reason of any late payment of funds due on the Closing Date.
5.2 Prorations; Adjustments; Closing Costs. The following adjustments and prorations shall be computed as of the Prorations Date, and the Purchase Price shall be adjusted to reflect such prorations; provided, however, the figures utilized by Seller for the proration of rents, security deposits and other expenses for the Property may be calculated using information from a date prior to the Prorations Date, but in no event more than four (4) Business Days prior to the Prorations Date. All costs and expenses of the Property with respect to the period on and prior to the Prorations Date shall be charged to Seller. All costs and expenses of the Property with respect to the period after the Prorations Date shall be charged to Buyer, with Buyer being deemed the owner of the Property beginning on the Closing Date for the entirety of the Closing Date.
(a) Revenues and Expenses. Seller shall be entitled to receive all revenues and shall be charged with all expenses relating to the ownership and operation of the Property through the Prorations Date. All revenues and expenses shall be prorated as of the Prorations Date . If, as of Closing, any rent is in arrears for the calendar month in which Closing occurs but not for prior periods. There shall be no proration of delinquent rent or revenues. All revenues from the Property collected by Seller after Closing shall be credited first to the obligations then owing to Seller for its period of ownership, remitting the balance due to Buyer for the period after the Closing, if any, but Seller will not institute litigation against any such tenant until six months after the Closing and no such litigation shall seek termination of the Lease in question, termination of the tenant’s right to possession under such Lease or seek to obtain all or any part of any security for such Lease. All rent from the Property received by Buyer after the Closing shall be applied to rent for the period on and after the Closing Date before payment by Buyer to Seller for application to rent delinquent as of the Closing. Buyer will use ACTIVE/124809171.12
reasonable efforts for a period of not more than one hundred eighty (180) days following the Closing to include in its rent invoices, the amount of any delinquent rents as of the Closing. In no event shall Buyer be obligated to bring any suit against any Tenant or exercise any of its rights or remedies under any Lease in order to collect any such revenue. Seller shall not be permitted to take any steps to recover any rent arrearages after Closing. The provisions of this Section shall survive Closing.
(b) Lease Prepayments; Lease Obligations. Buyer shall receive credits against the Purchase Price at Closing for any prepaid rents paid to Seller by the Tenants.
(c) Taxes and Assessments; Pending and Certified Liens. To the extent applicable, Taxes and assessments for the year of Closing shall be prorated as of the Prorations Date upon the amount of such taxes for the year of Closing (using any maximum discount available) if the amount of such Taxes is known at the time of Closing; if such amount cannot be then ascertained, proration shall be based upon the amount of the Taxes for the preceding year (using any maximum discount available). If any tax proration shall be based upon the amount of Taxes for the year preceding the year of Closing, such Taxes shall be reprorated and adjusted between the parties, on the basis of the tax bills for the year of Closing when received (using any maximum discount available) pursuant to Section 7(e). To the extent that Seller completes any tax appeal which results in savings for periods prior to but not after Closing, Seller shall, subject to rights of the Tenant, be entitled to retain all savings. To the extent that Seller completes any tax appeal which results in savings for periods prior to and after Closing, the parties agree to reprorate any such Taxes and to share in the costs of such appeal, including attorney's fees and costs, based on the parties' prorata ownership of the Property for such tax period. City/County, public liens and/or similar liens (collectively, "Public Liens"), if any, certified or for which the work has been substantially completed on the date of Closing and for which payment is due in full as of the Closing, shall be paid by Seller. Any Public Liens for which an installment payment is due and/or for which the owner of the Property has the right to make installment payments on an annual basis (as opposed to being paid in a lump sum), shall be prorated for the year of Closing. Buyer shall assume all obligations for any other Public Liens payable from and after Closing.
Other assessments not included on the regular property tax bills, license fees for transferred licenses, and state or municipal fees and Taxes for the Property for the applicable fiscal period during which Closing takes place shall be adjusted as of the Prorations Date on the basis of the most recent ascertainable assessments and rates, and shall be re-prorated as necessary pursuant to Section (e) below. The provisions of this Section shall survive Closing.
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(d) Other Prorations. In addition to the previously stated adjustments and prorations, at Closing the parties shall also make such adjustments and prorations to the Purchase Price as are customary and usual in transactions similar to the transaction contemplated by this Agreement. (e) Re-proration and Post-Closing Adjustments. In the event that any adjustments or prorations cannot be apportioned or adjusted at Closing by reason of the fact that final or liquidated amounts have not been ascertained, or are not available as of such date, the parties hereto agree to apportion or adjust such items on the basis of their best estimates of the amounts at Closing and to re-prorate any and all of such amounts promptly when the final or liquidated amounts are ascertained. In the event of any omission or mathematical error on the Closing Statement, or if the prorations, apportionments and computations shall prove to be incorrect for any reason, the same shall be promptly adjusted when determined and the appropriate party paid any monies owed. This provision shall survive Closing for a period of six (6) months. (f) Tenant Pay Items. Notwithstanding anything to the contrary in this Section 5.2, (i) to the extent the Tenant is paying any expenses (including, without limitation, real property taxes and assessments and/or utility charges) otherwise subject to proration hereunder directly to the applicable governmental entity, utility or services provider, or other third party, no proration of such expenses shall be made at Closing, and (ii) to the extent that the Tenant is responsible for payment of 100% of any category of expenses otherwise subject to proration in the form of operating expense reimbursements under the Lease, no proration of such expenses shall be made at Closing.
5.3 Costs and Expenses.
(a) Seller Expenses. Seller shall be responsible for the cost of (i) all transfer, recordation, and sales taxes and fees which may be due or payable in connection with the transaction contemplated by this Agreement and the termination of the Hyatt Lease (if such termination is requested in writing by Buyer prior to Closing), and (ii) the cost of the portion of the premium for the Title Policy attributable to standard coverage, (iii) one-half of Escrow Agent’s escrow fee, and (iv) all costs and expenses related to the Seller’s negotiation and recording of the Replacement Declaration.
(b) Buyer Expenses. Buyer shall be responsible for the cost of (i) Buyer’s due diligence examinations, (ii) the cost of the portion of the premium for the Title Policy attributable to extended coverage and the cost of any endorsements obtained by Buyer, (iii) financing costs (if any), (iv) extended coverage or endorsements to the Title Policy, (v) any survey fees and expenses, and (vi) one-half of Escrow Agent’s escrow fee.
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(c) Other Expenses. Except as expressly provided otherwise in this Agreement, each party shall bear its own legal fees in connection with the transaction contemplated by this Agreement, and all other costs, charges, and expenses shall be borne and paid as provided in this Agreement, or in the absence of such provision, in accordance with the custom of the County.
(d) Survival. The provisions of this Section 5.3 shall survive Closing.
ARTICLE VI.
TITLE
6.1 Title Report. The Title Report was included in the Bid Package. Subject to Section 6.2, the Title Report is the basis upon which Buyer will review the status of title to the Real Property during the Diligence Period and in consideration thereof, Buyer agrees to accept from the Title Company the Title Policy. Buyer shall take title to the Real Property subject to the following, all of which shall be deemed "Acceptable Encumbrances":
(a) Exceptions Numbers: 1, 4, 5, 9, 10, 12, 13,19 and 20 on the Pro forma Title Policy issued by the Title Company attached hereto as Exhibit H. (b) [intentionally omitted];
(c) The standard printed exceptions contained in a 2021 ALTA Form owner's title insurance policies, including, without limitation, rights of tenants and/or other occupants of the Property, if any; (d) Matters disclosed by that certain Survey dated October 31, 2023, prepared by Rodney A. Stewart II of Kier & Wright Surveyors; (e) Zoning and other regulatory laws and ordinances affecting the Property; (f) Any matters that are approved in writing by Buyer.
6.2 Updated Title Report. Immediately upon execution of the Agreement, and at Buyer’s election again on or before the Closing Date, Buyer and/or Seller may cause the Title Company to update the Title Report. If the updated Title Report contains exceptions that do not constitute Acceptable Encumbrances, Buyer may deliver to Seller written objection thereto prior to the completion of the Closing. If Buyer timely and properly delivers written objection(s) to any such item(s) other than an Acceptable Encumbrance, then Seller shall notify Buyer in writing within three (3) Business Days after receipt of Buyer’s notice of Buyer’s title objections (but, in any event, prior to the Closing Date) whether Seller elects to remove, discharge or correct the same (and Seller’s failure to respond in writing within ACTIVE/124809171.12
such period shall be deemed an election by Seller not to remove, discharge or correct Buyer’s title objections), and Seller shall have the right but not the obligation to use reasonable diligence to remove, discharge or correct such liens, encumbrances or objections and shall have a period of thirty (30) days after receipt of notice thereof in which to do so (and if necessary the Closing Date shall be extended on a day for day basis) provided, however, Buyer shall be deemed to object to any Required Removal Exceptions (as defined below) disclosed in the updated Title Report without any need to object to such items in writing or otherwise. At or prior to Closing, Seller shall be obligated to satisfy and/or to be released or record (i) any monetary liens, including, without limitation, liens secured by deeds of trust or mortgages securing loans or otherwise evidencing indebtedness secured by the Property, mechanics liens, tax liens, and any other lien that can be cured by the payment of a liquidated sum, except for any such liens created by through or under Buyer, (ii) judgment liens against Seller, (iii) any lien created or placed (or allowed to be created or placed) by, through or under Seller on or after the Effective Date and not otherwise expressly permitted by the terms of this Agreement, and (iv) delinquent taxes or assessments against Seller; provided that, Seller shall not be obligated to spend more than two percent (2%) of the Purchase Price in the aggregate to remove any such Lien, and (v) any exception to title that Seller has specifically agreed in writing to remove or discharge (collectively, the “Required Removal Exceptions”). If Seller shall be unwilling or unable to remove or discharge other Liens, encumbrances or objections (other than Required Removal Exceptions) within the periods provided in this Section 6.2, then Buyer may, at its option, no later than five (5) Business Days after Seller notifies (or is deemed to have notified) Buyer of Seller’s unwillingness or inability, either terminate this Agreement or accept title in its then existing condition without reduction of the Purchase Price (and the Closing Date shall be extended day for day as necessary). If Buyer shall elect to terminate this Agreement, the Deposit (and any interest accrued thereon), shall be returned to Buyer, this Agreement shall terminate, and thereafter neither Seller nor Buyer shall have any further rights or obligations hereunder except such obligations of this Agreement which specifically survive termination. If the updated Title Report contains no exceptions other than those reflected on the Title Report and other Acceptable Encumbrances or if Buyer fails to give written notice of objection(s) to Seller prior to completion of Closing, all matters reflected on the updated Title Report shall, except with respect to matters that are deemed objections of Buyer or exceptions required to be removed by Seller pursuant to this Article VI, be deemed Acceptable Encumbrances, this Agreement shall remain in full force and effect and Buyer shall, subject to satisfaction of the conditions set forth in Section 4.2 and further subject to Section 13.1, be obligated to complete the transaction as required by this Agreement.
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ARTICLE VII.
ESCROW AND CLOSING
7.1 Escrow Instructions. Upon execution of this Agreement, the parties hereto shall deposit an executed counterpart of this Agreement with the Escrow Agent, and this Agreement shall serve as the instructions to the Escrow Agent as the escrow holder for consummation of the purchase and sale contemplated hereby. Seller and Buyer agree to execute such reasonable additional and supplementary escrow instructions as may be appropriate to enable the Escrow Agent to comply with the terms of this Agreement; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of this Agreement shall control.
7.2 Time and Place. Closing shall take place on the Closing Date or such earlier date as may be mutually acceptable to the parties with all deliveries to be made in escrow to the Escrow Agent prior to the Closing Date; provided, however, that pursuant to Section 6.2 Seller at Seller's option may extend the Closing Date for purposes of curing objections to the status of title that were timely and properly raised by Buyer.
7.3 Seller's Deposit of Documents. At or before Closing, Seller shall deposit or cause to be deposited into escrow with the Escrow Agent the following items:
(a) an executed and acknowledged Deed in recordable form with respect to the Real Property, in the form of Exhibit B hereto, together with any State, County and local transfer tax declarations and forms required to be executed by Seller;
(b) an executed Certificate of Non-Foreign Status;
(c) an executed combined Buyer - Seller Closing Statement prepared by the Escrow Agent reflecting all financial aspects of the transaction ("Closing Statement");
(d) a completed State of California Form 593-C;
(e) executed duplicate originals of an Assignment and Assumption of Lease (the “Assignment of Leases”) in the form of Exhibit E;
(f) An executed Bill of Sale (the “Bill of Sale”) in the form of Exhibit F; (g) An executed Affordability Covenant (the “Affordability Covenant”) in the form of Exhibit I hereto;
(h) Appropriate evidence of existence, good standing, qualification in California (if applicable), and authorization reasonably satisfactory to ACTIVE/124809171.12
Buyer and satisfactory to the Title Company regarding the consummation of the transaction contemplated by this Agreement; (i) An executed and acknowledged Owners Affidavit, to the extent and in such form as the Title Company shall require in order for the Title Policy to be issued at Closing;
(j) A GAP indemnity to the extent and in such form as the Title Company shall require in order for the Title Policy to be issued at Closing (k) An executed Seller Closing Certificate that all of Seller’s warranties and representations remain true and correct in all material respects as of Closing in the form of Exhibit C;
(l) An executed Holdback Escrow Agreement (substantially in the form of Exhibit G attached hereto (the “Holdback Escrow Agreement”); (m) A Replacement Declaration in the form contemplated by Section 4.2(f) and executed by all parties to the Convention Center Campus CC&Rs (or their permitted successors and assigns);
(n) The Required Estoppels;
(o) The Amendment to Ballroom License; and
(p) executed duplicate originals of the Post-Closing Escrow Agreement (as defined below).
7.4 Buyer’s Deposit of Documents. At or before Closing, Buyer shall deposit or cause to be deposited into escrow with the Escrow Agent the following items:
(a) cash to close in the amount required by Section 5.1 hereof; (b) any State, County and local transfer tax declarations and forms required to be executed by Buyer;
(c) an executed Closing Statement;
(d) an executed Certificate of Buyer that all of Buyer’s warranties and representations remain true in all material respects as of Closing in the form of Exhibit C hereto;
(e) evidence reasonably satisfactory to Seller and the Escrow Agent reflecting that all documents executed by Buyer at Closing were duly authorized and executed;
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(f) a Certificate of Good Standing from the Secretary of State in which Buyer is organized (if Buyer is a corporation, limited partnership or limited liability company);
(g) a completed Preliminary Change of Ownership form;
(h) Two (2) duplicate originals executed by Buyer of the Assignment of Lease;
(i) The Amendment to Ballroom License; and
(j) executed duplicate originals of the Post-Closing Escrow Agreement.
7.5 Other Documents. Buyer and Seller shall each deliver such other documents as are otherwise required by this Agreement to consummate the purchase and sale of the Property in accordance with the terms hereof. Unless the parties otherwise agree in writing, the Escrow Agent is hereby designated as the “Reporting Person” for the transaction pursuant to Section 6045(e) of the United States Code and the regulations promulgated thereunder. If requested in writing by either party, the Escrow Agent shall confirm its status as the “Reporting Person” in writing, which such writing shall comply with the requirements of Section 6045(e) of the United States Code and the regulations promulgated thereunder.
7.6 Possession. Possession of the Property, subject to the Lease, shall be surrendered to Buyer at Closing.
7.7 Tenant and Service Contractor Notices. Immediately after Closing, Buyer shall deliver to all Tenants, if any, a copy of the Notice to Tenant and all vendors under Service Contracts, if any, a copy of the Notice to Service Contractor, which obligation shall survive Closing. The provisions of this Section 7.7 shall survive the Closing.
ARTICLE VIII.
ENVIRONMENTAL MATTERS
8.1 Release. Without limiting Section 3.6 or Buyer’s remedies for Seller’s breach of its representations and warranties contained in this Agreement (including but not limited to Section 9.2), Buyer acknowledges that Seller is not in any manner responsible to Buyer for the presence of any Hazardous Materials at, on, in, under or relating to the Property, if any. Except for Buyer’s remedies for Seller’s breach of its representations and warranties contained in this Agreement (including but not limited to Section 9.2), Buyer hereby specifically and irrevocably releases the Seller, its board members, its officers, its employees and its Oversight Board ACTIVE/124809171.12
members from any and all Claims relating to the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release of any Hazardous Materials on the Property, if any, including without limitation, any residual contamination, in, on, under or about the Property or affecting natural resources, whether prior to or following Closing, and also including, without limitation, any liability due to asbestos-containing materials at the Property.
EXCEPT FOR BUYER’S REMEDIES FOR SELLER’S BREACH OF ITS
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
AGREEMENT (INCLUDING BUT NOT LIMITED TO SECTION 9.2),
BUYER'S CLOSING HEREUNDER SHALL BE DEEMED TO CONSTITUTE
AN EXPRESS WAIVER OF BUYER'S AND ITS SUCCESSORS' AND
ASSIGNS' RIGHTS TO SUE SELLER AND OF BUYER'S RIGHT TO CAUSE
ANY OF SELLER'S BOARD MEMBERS, OFFICERS, EMPLOYEES OR
OVERSIGHT BOARD MEMBERS TO BE JOINED IN AN ACTION
BROUGHT UNDER ANY FEDERAL, STATE OR LOCAL LAW, RULE, ACT,
OR REGULATION NOW EXISTING OR HEREAFTER ENACTED OR
AMENDED WHICH PROHIBITS OR REGULATES THE USE, HANDLING,
STORAGE, TRANSPORTATION OR DISPOSAL OF HAZARDOUS
MATERIALS OR WHICH REQUIRES REMOVAL OR REMEDIAL ACTION
WITH RESPECT TO SUCH HAZARDOUS MATERIALS, SPECIFICALLY
INCLUDING BUT NOT LIMITED TO FEDERAL "CERCLA", "RCRA", AND "SARA" ACTS. The acknowledgments of Buyer and the release contained in this Section of this Agreement shall survive Closing or termination of this Agreement.
8.2 Confidentiality of Hazardous Materials Reports. Unless and until the Closing actually occurs, Buyer shall keep (and shall use commercially reasonable efforts to cause all Buyer’s Representatives to keep) all Hazardous Materials Reports and other information, received or completed by Buyer in Buyer’s independent factual, physical and legal examinations and inquiries of the Property, except that:
(i) Buyer shall if requested by Seller in writing promptly after receipt provide copies thereof to Seller; and (ii) Buyer may disclose same to (a) Buyer’s Representatives if Buyer first obtains the agreement in writing of such consultants to keep such Hazardous Materials Reports and related documentation confidential, (b) as required by applicable law, (c) in connection with litigation or other judicial proceedings and (d) its attorneys, accountants and federal advisors.
Unless and until the Closing actually occurs, neither the contents nor the results of any test, report, analysis, opinion or other information shall be disclosed by Buyer or Buyer’s Representatives unless and until Buyer is legally required to make such disclosure provided, however, Buyer may disclose as permitted under clause (ii) of this Section 8.2 prior to Closing and to anyone after Closing. The provisions of this Section 8.2 shall survive the termination of this Agreement.
ARTICLE IX.
WARRANTIES AND REPRESENTATIONS AND COVENANTS
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9.1 Buyer's Representations and Warranties. Buyer warrants and represents that: (a) Buyer has the full right, power, and authority to purchase the Property from Seller as provided in this Agreement and to carry out Buyer's obligations hereunder; (b) if Buyer is an entity, Buyer is duly formed and in good standing under the laws of the state in which it is organized and is, or at Closing will be, duly authorized to conduct business in the State or if Buyer is an individual, Buyer is lawfully capable of entering into and performing the obligations under this Agreement, provided however, in the event that Buyer assigns this Agreement to an entity pursuant to the terms of Article IX of this Agreement, any such entity shall be duly formed and in good standing under the laws of the state of its formation and qualified to transact business in the State; (c) all requisite action necessary to authorize Buyer to enter into this Agreement and to carry out Buyer's obligations has been obtained or will be obtained prior to Closing; (d) this Agreement has been duly authorized, executed and delivered by Buyer; and (e) the execution of this Agreement and the Closing to occur hereunder do not and will not violate any contract, covenant or other agreement to which Buyer may be a party or by which Buyer may be bound. The provisions of this Section shall survive Closing.
9.2 Seller’s Representations and Warranties. Seller represents and warrants to Buyer:
(a) Authorization. Seller is an existing public entity under the laws of the State of California. Seller has the full right, power, and authority to execute and deliver this Agreement, the Deed and the other documents to be executed by Seller pursuant to Section 7.3 and sell, assign, transfer and convey fee simple title to the Property as provided in this Agreement, and to carry out Seller’s obligations hereunder, and, subject to Section 3.11, all requisite action necessary to authorize Seller to enter into this Agreement and to carry out Seller’s obligations hereunder has been, or at the Closing will have been, taken.
(b) No Conflict. Seller is not prohibited from consummating the transactions contemplated in this Agreement by any law, regulation, agreement, instrument, restriction, order or judgment.
(c) No Bankruptcy Proceedings. There are no assignments for the benefit of creditors, receiverships, conservatorships, or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief laws contemplated or filed by Seller or pending against Seller or the Property. (d) Litigation. There are no suits or other proceedings or causes of action which are pending or, to Seller’s knowledge, threatened against Seller with respect to the Property or, to Seller’s knowledge, affecting the Property, in each case, in any court of competent jurisdiction. (e) Leases. The only Lease currently in effect to which Seller is a party is the Hyatt Lease. The Lease is in full force and effect on the terms set forth therein and Seller has delivered to Buyer true, correct and complete ACTIVE/124809171.12
copies of the Lease. Such Lease has not been amended or modified except pursuant to written modifications or amendments, true, correct and complete copies of which have been delivered by Seller to Buyer.
There are no defaults by Seller under the Hyatt Lease. To the best of Seller's knowledge, there are no noticed defaults by Tenant under the Hyatt Lease. Seller has good title to the Lease and has not assigned or pledged the Lease.
(f) Service Contracts. The Seller is not party to, nor is the Seller’s interest in the Property bound by, any property management agreement or other Service Contract.
(g) Compliance With Law. Seller has not received any written notice stating that the Property violates any federal, state, municipal and other governmental statutes, ordinances, by-laws, rules, regulations or any other legal requirements and which have not been cured. (h) No Violation. The execution of this Agreement and the Closing to occur hereunder do not and will not violate any contract, covenant or other agreement to which Seller may be a party or by which Seller may be bound.
(i) No Rights to Purchase. Except as included in the Hyatt Lease, no other person or entity has a contract or option to purchase, letter of intent, right of first refusal or first offer, or similar rights with respect to the Property that is now outstanding.
(j) No Condemnation. Seller has not received any notice that any condemnation or eminent domain proceedings are pending or threatened against the Property.
(k) No Unrecorded Agreements. Seller has not entered into or executed any unrecorded agreement or lease that would be binding on the Property and/or Buyer as of the Closing, other than the Hyatt Lease. (l) Employees. Seller has no employees with respect to the Property (m) Ownership. Seller is the owner of the Personal Property and Intangibles.
(n) ERISA. Neither the Property nor any portion thereof is the asset of an employee benefit plan as defined in Section 3(3) of ERISA or covered under Title I, Part 4 of ERISA or Section 4975 of the Internal Revenue Code.
(o) OFAC. Seller (i) is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order or the United States Department of the Treasury as a terrorist, “Specially ACTIVE/124809171.12
Designated and Blocked Persons”, or other banned or blocked person, group, entity, nation or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by the Office of Foreign Asset Control (“OFAC”) of the United States Department of the Treasury; and (ii) is not engaged, directly or indirectly, in any dealings or transactions and is not otherwise associated with such person, group, entity or nation.
(p) Environmental. Seller has not received written notice from any governmental agency or other body of any violation of Hazardous Materials Laws or the presence or release of Hazardous Materials in violation of Hazardous Materials Laws on or from the Property that has not been resolved.
(q) Zoning. Seller has not received written notice of any pending or contemplated zoning action with respect to the Real Property. (r) Violations. Seller has not received written notice from any governmental agency or other body of any existing material violations of any federal, state, county or municipal laws, ordinances, orders, codes, regulations or requirements affecting the Property or Seller with respect to the Property that has not been resolved.
(s) Convention Center Campus CC&Rs. Seller has delivered to Purchase a true, correct and complete copy of the Convention Center Campus CC&Rs. The Convention Center Campus CC&Rs are in full force and effect on the terms set forth therein. Such Convention Center Campus CC&Rs have not been amended or modified except pursuant to written modifications or amendments, true, correct and complete copies of which have been delivered by Seller to Buyer. There are no noticed defaults by Seller under the Convention Center Campus CC&Rs. To the best of Seller's knowledge, there are no defaults by any other party to the Convention Center Campus CC&Rs.
(t) Taxes. To Seller’s knowledge, there are no outstanding or pending contests or disputes with respect to the amount or payment of any Taxes applicable to the Property.
(u) Surplus Land Act. Seller has complied with all requirements of the Surplus Land Act, California Government Code section 54220 et seq. and all regulations with respect thereto in connection with the sale of the Property contemplated hereunder.
9.3 Seller’s Knowledge; Survival. For purposes of this Agreement, Seller’s “knowledge” or words of similar import means the actual knowledge of [INSERT CITY REPRESENTATIVE], after reasonable and diligent inquiry and investigation including, without limitation, inquiry of the Tenant. The ACTIVE/124809171.12
representations and warranties of Seller contained in this Agreement shall survive the Closing and the recordation of the Deed for a period of nine (9) months, at which time they will be deemed to be merged into and superseded by the Deed and other documents executed by Seller and delivered pursuant to Section 7.3, except with respect to claims made in accordance with Section 9.4.
9.4 Limitations. Notwithstanding anything in this Agreement to the contrary, Seller’s liability for breaches of the representations and warranties set forth in Section 9.2 discovered by Buyer after Closing is subject to the following limitations:
(a) Filing of Claim. Any claim by Buyer against Seller for a breach of a representation or warranty set forth in Section 9.2 must be asserted in writing to Seller during the period of nine (9) months following the Closing (the “Survival Period”) and, any litigation related to such claim must be brought within twelve (12) months following the Closing, provided notice of such claim is delivered during the Survival Period. (b) Actual Knowledge. If Buyer proceeds with Closing despite having the right to terminate this Agreement on account of any breach of a representation or warranty by Seller as to which Buyer has actual (as opposed to imputed) knowledge of before Closing, Buyer shall have no claim for such breach of representation or warranty, and, by proceeding with Closing as aforesaid, Buyer shall be deemed to have waived all claims based on or resulting from such breach of such representations, warranties or covenants. For purposes of this Agreement, Buyer’s “knowledge” or words of similar import means the actual knowledge of Shamir Kanji without any independent investigation and does not include any imputed or constructive knowledge that may be attributed to such individual(s).
(c) Threshold Amount. Buyer shall have no recourse against Seller until the aggregate claims for breach of any of Seller’s covenants, representations or warranties under this Agreement exceed $25,000.00 (the “Threshold Amount”). Once the Threshold Amount has been reached as to any one or more matters in the aggregate, Buyer shall be entitled to recourse against the Seller for the dollar value of all aggregate claims, from dollar one, subject to Sections 9.5 and 9.6.
9.5 Aggregate Liability. If the Closing occurs, the aggregate liability of Seller to Buyer arising pursuant to or in connection with the representations and warranties of Seller under this Agreement or any document executed or delivered in connection herewith shall not exceed four hundred thousand dollars ($400,000.00) ("Liability Limitation"). The provisions of this Section shall survive Closing. At Closing, Seller shall cause a portion of its proceeds from Closing equal to the Liability Limitation to be deposited with an escrow holder acceptable to Buyer to secure payment and performance of Seller’s obligations ACTIVE/124809171.12
which survive Closing under this Agreement, pursuant to and in accordance with the Holdback Escrow Agreement.
9.6 Consequential or Punitive Damages. Neither Seller nor Buyer shall be liable to the other under this Agreement for special, incidental or consequential damages or for punitive or exemplary damages except where such Party’s or omissions constitute fraud or willful misconduct, provided that in no event shall Seller’s liability exceed the amount set forth in Section 9.5 above.
9.7 Seller’s Covenants. Seller covenants and agrees as follows until the Closing:
(a) Insurance. Seller shall cause to be maintained in force Seller’s existing Property coverage insurance and commercial general liability insurance upon the Property in the amounts not less than such amounts as are, on the Execution Date, carried by Seller.
(b) Operation and Maintenance. Seller shall, subject to the terms and conditions of the Leases, operate, maintain, and repair the Property in substantially the same manner as prior to the date of this Agreement pursuant to its normal course of business. Except to the extent required to comply with applicable law or as the tenants under the Leases are permitted to do without Seller’s consent, the Seller shall not materially alter the Property (or permit the material alteration of the Property) after execution of this Agreement without Buyer’s consent, to be given or withheld in Buyer’s sole discretion.
(c) Personal Property. Seller shall not remove any Personal Property from the Property unless Seller replaces the same before the Closing with Personal Property of equivalent or better utility and quality to the items removed.
(d) Title. Seller shall not further encumber the Property in any consensual manner without the written consent of Buyer, to be given or withheld in Buyer’s sole discretion. Seller will not apply for any variance, change or modification with respect to any zoning of the Property or use of the Property without Buyer’s consent, to be given or withheld in Buyer’s sole discretion.
(e) Leases. Seller shall not enter into, terminate, modify or amend any Leases. Seller shall not grant any consent or approval under any Leases.
Seller shall not waive any conditions or obligations under any Leases or guarantees of Lease. Seller shall not enter into any non-disturbance or analogous agreements with any subtenants. Seller will, promptly, and, in any event, not later than one Business Day following receipt, give Buyer a true and complete copy of any notices, reports, statements, demand or material correspondence received from Tenants. Seller will ACTIVE/124809171.12
not give a notice of default to any Tenant without Buyer’s consent, to be given or withheld in Buyer’s sole discretion.
(f) Copies of Written Notices. Seller shall, from and after the date hereof, promptly provide Buyer with copies of all written notices received by Seller after the date hereof which assert any material breach of agreements, laws, covenants or permits applicable to the Property. (g) Notice of Material Changes. Upon learning of any event or changed condition or circumstance or receiving any notice or documentation or otherwise acquiring knowledge (any of the foregoing being referred to herein as a “Changed Condition”) which makes any representation or warranty of Seller to Buyer under this Agreement untrue or misleading in any material way or any default by the tenant under any Leases, Seller shall promptly notify Buyer in writing thereof.
Within five (5) Business Days after notification in writing by Seller to Buyer of any such Changed Condition, Seller, at Seller's own option and expense, may elect by written notice to Buyer to remedy the Changed Condition such that Seller's representations are accurate, and the Closing Date may be extended for up to ten (10) days after the scheduled Closing Date in order for Seller to effectuate such remedy. If Seller does not elect to effectuate such remedy so as to cause Seller's representations to be accurate, or if Seller so elects but then fails to complete such remedy within such ten (10) day period, then Buyer may elect, by written notice to Seller given at any time thereafter, to terminate this Agreement, in which event (1) neither Buyer nor Seller shall have any further obligation under this Agreement, except for the obligations which expressly survive the termination of this Agreement, and (2) the Deposit together with accrued interest thereon shall be returned to Buyer; provided that, for the avoidance of doubt, if the Changed Condition is a result of a default by Seller, Buyer shall have its remedies under Section 11.2 hereof. (h) No Other Contract. Subject to the right of first refusal included in the Hyatt Lease, neither Seller nor its affiliates will enter into any other agreement or option to sell the Property or any portion of, or interest in, the Property. Neither Seller nor its affiliates will market the Property for sale or negotiate with any other person or entity relating to the purchase and sale of the Property.
ARTICLE X.
ASSIGNMENT
Buyer may not, prior to the Closing, assign this Agreement, nor may any of Buyer's rights hereunder be transferred in any manner, nor may any of Buyer's rights hereunder or any ACTIVE/124809171.12
ownership interest in Buyer be transferred in any manner to any person or entity, without Seller's specific prior written consent, which consent may be withheld by Seller for any reason whatsoever except, however, that Buyer shall have the right to assign this Agreement, without Seller’s consent, to an entity controlled by, or under common control with, Buyer; provided, however, any such assignment shall be binding on Seller only to the extent Buyer provides Seller with written intent to so assign, specifically naming the assignee and providing the signature block for the assignee, no later than the Closing Date and evidence reasonably satisfactory to Seller that the assignee is controlled by, or under common control with, Buyer. If Buyer assigns this Agreement pursuant to the terms hereof: (a) the assignee shall be liable (jointly and severally with assignor) for all of Buyer's obligations hereunder; (b) the assignor (i.e., the original Buyer hereunder) shall remain obligated (but jointly and severally with assignee) with respect to all of Buyer's obligations hereunder; and (c) the assignor and any assignee shall execute such instruments of assignment and assumption in form reasonably acceptable to Seller in confirmation of the provisions hereof. “Control” means (a) the power to direct the management and policies, directly or indirectly, of an entity through the ownership of voting securities, contract or otherwise or (b) the ownership, directly or indirectly, of at least fifty percent (50%) of the ownership interests of an entity.
ARTICLE XI.
DEFAULT
11.1 Buyer's Default. If Buyer shall fail to close the transaction contemplated hereby as and when required and Buyer has failed to cure such default within five (5) Business Days of Seller’s written notice of same, except as a result of any Seller default or failure of a condition, or if Seller fails to close the transaction contemplated hereby as a result of a Buyer default that Buyer has failed to cure within five (5) Business Days of Seller’s written notice of same, the Deposit shall be paid over to Seller as agreed as liquidated damages and not as a penalty, it being acknowledged by Buyer and Seller that in such event Seller will suffer substantial damages but such damages are incapable of exact ascertainment. After payment to Seller of the Deposit, neither Seller nor Buyer shall have any further rights or obligations hereunder except that Buyer shall remain obligated with respect to the obligations which specifically survive termination. If subsequent to Closing Buyer shall fail to comply with its obligations contained herein which survive Closing, Seller, in addition to any rights and remedies provided herein, shall be entitled to any and all remedies available at law or in equity.
SELLER AND BUYER ACKNOWLEDGE THAT SELLER’S DAMAGES WOULD BE
DIFFICULT TO DETERMINE, AND THAT THE DEPOSIT IS A REASONABLE ESTIMATE OF SELLER’S DAMAGES RESULTING FROM A DEFAULT BY BUYER IN ITS OBLIGATION TO PURCHASE THE PROPERTY. SELLER AND BUYER FURTHER AGREE THAT THIS SECTION 11.1 IS INTENDED TO AND DOES LIQUIDATE THE AMOUNT OF DAMAGES DUE SELLER, AND SHALL BE SELLER’S EXCLUSIVE
REMEDY AGAINST BUYER, BOTH AT LAW AND IN EQUITY, ARISING FROM OR
RELATED TO A BREACH BY BUYER OF ITS OBLIGATION TO CONSUMMATE THE ACTIVE/124809171.12
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OTHER THAN WITH RESPECT TO BUYER’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND TO THE EXTENT PROVIDED BY SECTION 16.1, SELLER’S RIGHT TO RECOVER ITS REASONABLE ATTORNEYS’ FEES AND EXPENSES. THE
PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677.
Buyer Seller
11.2 Seller's Default. If Seller is in default of this Agreement before or at the Closing, Buyer may elect either:
(a) to terminate this Agreement, in which case the Deposit (plus accrued interest) shall be returned to Buyer, and receive a reimbursement from Seller for the Pursuit Costs; and neither Buyer nor seller shall have any further liability hereunder; or
(b) to seek specific performance of Seller’s obligations hereunder plus recover the costs and expenses of enforcing this Agreement.
Buyer expressly waives all other remedies, including suit for damages, provided that nothing herein precludes a claim against Seller after Closing for a breach of any representations and warranties, subject to the limitations of Section 9.4 hereof. If Buyer does not bring suit within the time periods provided in Section 9.4(a), Buyer shall be deemed to have elected option (a) above.
11.3 No Obligation of Seller after Closing. Buyer expressly acknowledges and agrees that Seller has no obligations with respect to the Property that survive Closing, except as specifically set forth in this Agreement. The provisions of this Section shall survive Closing.
ARTICLE XII.
NO JOINT VENTURE
Buyer acknowledges and agrees that Seller is not a venturer, co-venturer, insurer, guarantor or partner of Buyer in Buyer's development of, construction upon and resale of the Property, and that Seller shall bear no liability whatsoever resulting from or arising out of Buyer's ownership and development of, and construction upon, the Property, except as expressly provided in this Agreement. The provisions of this Article shall survive Closing.
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ARTICLE XIII.
MISCELLANEOUS
13.1 Risk of Loss.
(a) Seller shall, subject to the rights of Tenants, retain all rights with respect to any Pre-Existing Insurance Claims and any Proceeds from PreExisting Insurance Claims. (b) Seller agrees to give Buyer prompt notice of any Event occurring after the Execution Date and before the Closing Date.
(c) If on or after the Execution Date and prior to Closing, any Event ("Termination Event") shall occur and such Termination Event (i) would cost an amount, greater than, or equal to $1,000,000 to repair and/or restore (as reasonably determined by Buyer), (ii) would materially interfere with the present use of such Property and/or permit the Tenant to terminate the Hyatt Lease or abate rent, (iii) with respect to which any mortgagee of the Tenant is not required to apply (or does not apply) proceeds of insurance or condemnation awards, as applicable sufficient to complete such restoration and/or repair, as applicable, or (iv) which is not fully covered by Seller’s insurance policies and that is not Tenant’s obligation to repair and restore pursuant to the Lease, Buyer shall have the right to terminate this Agreement by giving notice to Seller within ten (10) Business Days after Buyer has received notice from Seller of the Event and the Closing Date shall be extended, if necessary, to provide sufficient time for Buyer to make such election (and Buyer’s failure to make such election shall be deemed Buyer’s election not to terminate this Agreement). Upon such termination, the Deposit and interest accrued thereon, shall be returned to Buyer, and neither party shall have any further rights or obligations hereunder except with respect to the provisions of this Agreement which specifically survive termination. If Buyer does not so timely elect to terminate this Agreement, Seller shall not be obligated to repair the Property, Closing shall take place as provided herein and at Closing Seller shall assign to Buyer all interest of Seller in and to the Net Proceeds (if any).
(d) If, on or after the Execution Date and prior to Closing, any Event that is not a Termination Event shall occur, Buyer may not terminate this Agreement, Seller shall not be obligated to repair the Property, and Closing shall take place as provided herein, and at Closing Seller shall assign to Buyer all interest of Seller in and to the Net Proceeds and any rights of Seller to prosecute, settle, compromise, or appeal such payments.
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(e) At Closing, Buyer shall receive (i) a credit for (1) any Net Proceeds received by Seller prior to Closing and (2) the amount of any deductible under any insurance policy, (ii) an assignment of all of Seller’s rights to any insurance proceeds payable by reason of such Event, other than any business interruption insurance to the extent the same is attributable to the period of time prior to the Closing which shall be retained by or paid to Seller, and (iii) an assignment of Seller’s right, title and interest to any insurance claims or other claims related to any Event to the extent unresolved as of the Closing Date. Seller shall, subject to the Hyatt lease, retain the exclusive right to process and handle the claim related to any Event occurring prior to Closing with Seller’s insurance company; provided, however, that from and after the expiration of the Diligence Period, Buyer shall have the right, but not the obligation, to participate in the processing and handling of such claims. Seller makes no representation or warranty with respect to the amount of the Net Proceeds, including, without limitation, whether Buyer will be entitled to the actual cash value or the replacement cost of the Property. Seller and Buyer agree to use good faith efforts to cooperate with each other in negotiating and resolving the amount of the Net Proceeds, including, without limitation, promptly providing any and all materials requested by the insurance company and promptly responding to any and all inquiries from the insurance company. Seller shall not agree to the amount of the Net Proceeds with the insurance company without Buyer’s consent.
(f) Seller and Buyer each expressly waive the provisions of California Civil Code Section 1662 and hereby agree that the provisions of this Agreement shall govern the parties’ obligations in the event of any damage or destruction to the Real Property or the taking of all or any part of the Real Property, as applicable.
(g) The provisions of this Section shall survive Closing.
13.2 Construction. The terms "Seller" and "Buyer" whenever used in this Agreement shall include the heirs, personal representatives, successors and assigns of the respective parties hereto; provided, however, that Buyer's right of assignment is restricted by the provisions hereof. Whenever used, the singular number shall include the plural and the plural the singular, and the use of any gender shall include all genders. The term "including" as used herein shall in all instances mean "including, but not limited to". The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the interpretation of this Agreement. This Agreement and any related instruments shall not be construed more strictly against one party than against the other by virtue of the fact that initial drafts may have been prepared by counsel for one of the parties, it being recognized that this Agreement and any related instruments are the product of extensive negotiations between the parties hereto.
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13.3 Counterparts and Electronic Signatures. This Agreement may be executed in multiple counterparts by the parties hereto. All counterparts so executed shall constitute one agreement binding upon all parties, notwithstanding that all parties are not signatories to the original or the same counterpart. Each counterpart shall be deemed an original Agreement all of which shall constitute one agreement to be valid as of the date of this Agreement. Facsimile, documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Agreement and all matters related thereto, with such facsimile, scanned and electronic signatures having the same legal effect as original signatures. Seller and Buyer agree that this Agreement or any other document necessary for the consummation of the transaction contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act ("UETA") and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on both Seller and Buyer the same as if it were physically executed and Buyer hereby consents to the use of any third party electronic signature capture service providers as may be chosen by Seller.
13.4 Severability and Waiver. Invalidation of any one Section or provision of this Agreement by judgment or court order shall in no way affect any other Section or provision. Failure of any party to this Agreement to insist on the full performance of any of its provisions by the other party (or parties) shall not constitute a waiver of such performance unless the party failing to insist on full performance of the provision declares in writing signed by it that it is waiving such performance. A waiver of any breach under this Agreement by any party, unless otherwise expressly declared in writing, shall not be a continuing waiver or waiver of any subsequent breach of the same or other provision of this Agreement. The provisions of this Section shall survive Closing.
13.5 Governing Law. The laws of the State of California (without regard to conflicts of law) shall govern the validity, construction, enforcement and interpretation of this Agreement.
13.6 Further Acts. In addition to the acts and deeds recited in this Agreement and contemplated to be performed, executed, and/or delivered under this Agreement, Seller and Buyer agree to perform, execute and/or deliver or cause to be delivered, executed and/or delivered at Closing or after Closing all further acts, fees, and assurances reasonably necessary to consummate the transactions contemplated hereby.
13.7 Notices. All notices, demands, requests, and other communications required or permitted hereunder shall be in writing. Any notice given by a party’s attorney shall be deemed notice given by such party. All such notices, demands, requests and other communications (and copies thereof) shall be deemed to be delivered:
(a) if sent by messenger, upon personal delivery to the party to whom the notice is ACTIVE/124809171.12
directed; (b) if sent by email on (i) the Business Day sent so long as such email notice is sent within business hours (i.e., 8 A.M. Pacific Time – 5 P.M. Pacific Time) on that Business Day (unless a different time period is provided here) or (ii) the next Business Day if sent after business hours (i.e., 8 A.M. Pacific Time – 5 P.M. Pacific Time) on the Business Day sent or sent on a day other than a Business Day, and in either case such email notice is followed by notice pursuant to provisions (a) or (c) of this Section or the party to whom such email notice is given acknowledges receipt; or (c) if sent by overnight courier, with request for next Business Day delivery, on the next Business Day after sending; addressed as follows (or to such other address as the parties may specify by notice given pursuant to this Section):
TO SELLER: To the attention of the Seller's Contact Person in the Key Terms to the Seller's Notice Address in the Key Terms
TO BUYER: To the attention of the Buyer’s Contact Person in the Key Terms to the Buyer's Notice Address set forth in the Key Terms
13.8 Entire Agreement and Amendment. This Agreement contains the entire understanding between Buyer and Seller with respect to the subject matter hereof.
Neither this Agreement nor any provision hereof may be modified, amended, changed, waived, discharged or terminated orally. Any such action may occur only by an instrument in writing signed by the party against whom enforcement of the modification, change, waiver, discharge or termination is sought.
13.9 Recording. This Agreement shall not be recorded and Buyer agrees that recording shall constitutes a default by Buyer.
13.10 Exhibits. The Exhibits that are referenced in and attached to this Agreement are incorporated in, and made a part of, this Agreement for all purposes.
13.11 Time of the Essence. Seller and Buyer expressly agree that time is of the essence with respect to this Agreement. If the final day of any period or any date of performance under this Agreement falls on a date which is not a Business Day, then the final day of the period or the date of performance, as applicable, shall be extended to the next day which is a Business Day.
13.12 No Third Party Beneficiary. This Agreement is solely between Seller and Buyer and no other party shall be entitled to rely upon any provision hereof for any purpose whatsoever.
13.13 Limitation on Liability. Seller and Buyer each expressly agrees that the obligations and liabilities of Buyer and Seller under this Agreement and any document referenced herein shall not constitute personal obligations of the officers, directors, shareholders, employees, agents, representatives, trustees, partners, members, certificate holders, or other principals of Buyer or Seller.
Notwithstanding anything to the contrary, Seller's liability, if any, arising in connection with this Agreement or with the Property shall be limited as set forth ACTIVE/124809171.12
in Section 9.5 above for the recovery of any judgment against Seller, and Seller shall not be personally liable for any such judgment or deficiency after execution thereon. The limitations of liability contained in this paragraph shall apply equally and inure to the benefit of all of Seller's board members, officers, employees and Oversight Board members. The provisions of this Section shall survive termination and Closing.
13.14 Legal Counsel and Joint Authorship. Each of Buyer and Seller has received independent legal advice from attorneys of its choice with respect to the advisability of making and executing this Agreement and the documents which, under the terms of this Agreement, are to be executed and delivered by Seller or Buyer or both at Closing (the "Closing Documents") or waived its right to do so.
Buyer hereby acknowledges that Seller's counsel is not representing the Buyer or any interests of Buyer in connection with this Agreement or any other matter and that, unless Buyer is represented by counsel, Buyer has made the informed decision to not consult with an attorney of Buyer's choice prior to the execution of this Agreement. In the event of any dispute or controversy regarding authorship of this Agreement or the Closing Documents, Buyer and Seller shall be conclusively deemed to be the joint authors of this Agreement and the Closing Documents and no provision of this Agreement or the Closing Documents shall be interpreted against Buyer or Seller by reason of authorship.
13.15 Prohibited Persons. Neither Buyer nor Seller nor any of its respective officers, directors, shareholders, partners, members or affiliates (including without limitation indirect holders of equity interests in Buyer or Seller) is or will be an entity or person (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 ("EO13224"), (ii) whose name appears on the United States Treasury Department's Office of Foreign Assets Control ("OFAC") most current list of "Specifically Designated National and Blocked Persons" (which list may be published from time to time in various mediums including, but not limited to, the OFAC website) (iii) who commits, threatens to commit or supports "terrorism", as that term is defined in EO13224, (iv) is subject to sanctions of the United States government or is in violation of any federal, state, municipal or local laws, statutes, codes, ordinances, orders, decrees, rules or regulations relating to terrorism or money laundering, including, without limitation, EO13224 and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or (v) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in clauses (i) – (v) above are herein referred to as a "Prohibited Person"). Each of Buyer and Seller covenants and agrees on behalf of itself that neither Buyer nor Seller nor any of its respective officers, directors, shareholders, partners, members or affiliates (including without limitation indirect holders of equity interests in Buyer or Seller) shall (aa) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person, or (bb) engage in or conspire to engage in any transaction that ACTIVE/124809171.12
evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in EO13224. The provisions of this Section shall survive Closing or termination of this Agreement.
13.16 Broker. Seller represents and warrants to Buyer that Seller has not incurred, and shall not have incurred as of the Closing, any liability for the payment of any brokerage fee or commission in connection with the transaction contemplated in this Agreement, other than to Eastdil Secured (“Eastdil”). Seller shall pay a commission to Eastdil at Closing pursuant to the terms of a separate written agreement between Seller and Eastdil. Buyer represents and warrants to Seller that Buyer has not incurred, and shall not have incurred as of the Closing, any liability for the payment of any brokerage fee or commission in connection with the transaction contemplated in this Agreement. Seller and Buyer hereby agree to defend, indemnify and hold harmless the other from and against any and all claims of any other person claiming a brokerage fee or commission through the indemnifying party. The provisions of this Section 13.6 shall survive Closing or termination of this Agreement.
13.17. Tax deferred exchange. Either party may consummate the purchase or sale of the Property as part of a like kind exchange ("Exchange") pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended ("Code") provided: (i) Close of Escrow shall not be affected by the Exchange, nor shall the consummation or accomplishment of the Exchange be a condition to either party's obligations under this Agreement; (ii) the party consummating the Exchange ("Electing Party") shall effect the Exchange through an assignment of this Agreement, or its rights under this Agreement, to a qualified intermediary; (iii) the other party (the "Other Party") shall not be required to take an assignment of the purchase agreement for the relinquished property or be required to acquire or hold title to any real property; (iv) the Electing Party shall indemnify, defend and hold the Other Party harmless from and against any Claim arising from or related to such Exchange that would not have been incurred by the Other Party if the transaction were not subject of an Exchange; and (v) the Exchange is not a Closing Condition of either party.
13.18. Right of First Refusal. Lessee (as defined in the Hyatt Lease) is an affiliate of Buyer, and both Buyer and Lessee are under common control. Pursuant to Section 1314 of the Hyatt Lease, Lessee has a right of first refusal (“ROFR”) with respect to the Property. Buyer and Seller acknowledge that this Agreement cannot and shall not replace, modify, waive or release any of Seller’s obligations or Lessee’s rights under the Hyatt Lease, including especially the rights and obligations associated with Lessee’s ROFR, which obligations Seller is required to satisfy prior to any sale or other transfer of the Property. To the extent the Property is not sold to Buyer in accordance with this Agreement, Lessee intends to fully enforce its rights under the Hyatt Lease with respect to the ROFR and otherwise and reserves all rights and remedies pursuant to the same.
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ARTICLE XIV.
ESCROW TERMS
The Escrow Agent shall hold the Deposit in escrow on the following terms and conditions:
(a) The Escrow Agent shall deliver the Deposit to Seller or Buyer, as the case may be, in accordance with and subject to the terms and conditions of this Agreement.
(b) Any notice to or demand upon the Escrow Agent shall be in writing and shall be sufficient only if received by the Escrow Agent within the applicable time periods set forth herein, if any. Notices to or demands upon the Escrow Agent shall be sent in accordance with Section 13.7 hereof, to the Contact Person and address set forth in the Defined Terms.
Notices from the Escrow Agent to Seller or Buyer shall be delivered to them in accordance with Section 13.7 of this Agreement. (c) If the Escrow Agent shall have received notice signed by either party advising that litigation between the parties over entitlement to the Deposit has been commenced, the Escrow Agent shall, on demand of either party, deposit the Deposit with the clerk of the court in which such litigation is pending. If at any time the Escrow Agent is uncertain of its duties hereunder or if Escrow Agent for any other reason is no longer willing to serve as escrow agent, the Escrow Agent may, on notice to the parties, take such affirmative steps as it may, at its option, elect in order to terminate its duties as the Escrow Agent, including, but not limited to, the deposit of the Deposit with a court of competent jurisdiction and the commencement of an action for interpleader, the reasonable costs of which shall be borne by whichever of the parties is the losing party.
Upon the taking by the Escrow Agent of such action described, the Escrow Agent shall be released of and from all liability hereunder as escrow agent, except for the gross negligence or willful misconduct of Escrow Agent.
(d) The Escrow Agent shall not incur any liability in acting upon any signature, notice, demand, request, waiver, consent, receipt or other paper or document believed by the Escrow Agent to be genuine. The Escrow Agent may assume that any person purporting to give it any notice on behalf of any party in accordance with the provisions hereof has been duly authorized to do so, or is otherwise acting or failing to act under this Section except in the case of the Escrow Agent's gross negligence or willful misconduct.
(e) The terms and provisions of this Article shall create no right in any person or entity other than the parties and their respective successors and ACTIVE/124809171.12
permitted assigns and no third party shall have the right to enforce or benefit from the terms hereof.
(f) The Escrow Agent has executed this Agreement for the sole purpose of agreeing to act as such in accordance with the terms of this Agreement.
ARTICLE XV.
OTHER DISCLOSURES
15.1 Radon. Radon is a naturally occurring radioactive gas that when accumulated in a building in sufficient quantities may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines may have been found in buildings in the state where the Property is located.
Additional information regarding radon and radon testing may be obtained from your county or state health unit. Buyer represents and warrants that he/she/it has not relied on the accuracy or completeness of any representations that have been made by the Seller and/or Listing Broker as to the presence of radon except for such representations provided in this Agreement or in any documents delivered by Seller pursuant to Section 7.3, and that the Buyer has not relied on the Seller’s or Listing Broker’s failure to provide information regarding the presence or effects of any radon found on the Property. Real estate brokers and agents are not generally qualified to advise buyers on radon treatment or its health and safety risks.
ARTICLE XVI.
LITIGATION
16.1 Attorneys' Fees; Jurisdiction; Venue. In the event of any litigation arising out of or under this Agreement and/or out of Buyer's ownership, development or construction upon the Property, the prevailing party shall be entitled to collect from the non-prevailing party reasonable attorneys' fees and costs. Buyer and Seller hereby submit to the jurisdiction of the Civil Courts of the State and the United States District Courts located in the State in respect of any suit or other proceeding brought in connection with or arising out of this Agreement and venue shall be in the County. The provisions of this Section shall survive Closing.
16.2 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY LAW, THE
PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY DOCUMENT EXECUTED IN CONNECTION
HEREWITH OR RELATED HERETO, OR ANY COURSE OR CONDUCT,
ACTIVE/124809171.12
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS
TRANSACTION.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Signature Page to Agreement for Purchase and Sale of Property Buyer and Seller have executed this Agreement as of the Execution Date.
SELLER:
SUCCESSOR AGENCY TO THE FORMER
REDEVELOPMENT AGENCY OF THE CITY
OF SANTA CLARA,
A separate public entity
APPROVED AS TO FORM
____________________________ ________________________
GLEN R. GOOGINS JŌVAN GROGAN
Agency General Counsel Executive Officer/City Manager
1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
Telephone: (408) 615-2210
___________________________ Fax: (408) 241-6771
NORA PIMENTEL
Agency Secretary
Date:______________________
[Signatures continue on following page]
Signature Page to Agreement for Purchase and Sale of Property BUYER:
XHR ACQUISITIONS, LLC,
a Delaware limited liability company
By: _______________________________
Its: _______________________________
Date:______________________
Signature Page to Agreement for Purchase and Sale of Property – Escrow Agent
EXECUTION BY ESCROW AGENT
The Escrow Agent executes this Agreement for the purposes of acknowledging its Agreement to serve as escrow agent in accordance with the terms of the Agreement.
First American Title Insurance Company
By:
Date: ________________________, 2024
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A-1
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA
CLARA, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
ALL OF ADJUSTED PARCEL 1 AS DESCRIBED IN THAT CERTAIN GRANT DEED FILED FOR RECORD ON MARCH 24, 1998 AS DOCUMENT NO. 14106142, SANTA CLARA COUNTY RECORDS, AND DESCRIBED AS FOLLOWS:
BEGINNING AT A NORTHWESTERLY CORNER OF PARCEL 1 AS SHOWN ON THAT CERTAIN AMENDED PARCEL MAP RECORDED IN BOOK 581 OF MAPS, PAGES 9 THRU 11, SANTA CLARA COUNTY RECORDS, AND AS FURTHER AMENDED BY
THAT CERTAIN GRANT DEED BETWEEN THE REDEVELOPMENT AGENCY OF THE
CITY OF SANTA CLARA AS GRANTOR AND GRANTEE RECORDED IN THE OFFICE
OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON MARCH 24, 1998 AS INSTRUMENT NO. 14106142 PURSUANT TO THAT CERTAIN
NOTICE OF LOT LINE ADJUSTMENT ISSUED BY THE CITY OF SANTA CLARA AND
RECORDED CONCURRENTLY THEREWITH IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON MARCH 24, 1998 AS INSTRUMENT NO. 14106143, SAID POINT OF BEGINNING ALSO BEING POINT P-I AS SHOWN ON SAID MAP, AND SAID POINT BEING DISTANT THEREON SOUTH 61° 50' 39" EAST, 307.32 FEET, FROM THE CITY OF SANTA CLARA BRASS PIN MONUMENT AT THE INTERSECTION OF BUNKER HILL LANE AND GREAT AMERICA PARKWAY; THENCE, FROM SAID POINT OF BEGINNING, NORTH 89° 59' 26" EAST, 12.86 FEET; THENCE, NORTH 00° 00' 34" WEST, 13.75 FEET;
THENCE, NORTH 89° 59' 26" EAST, 13.04 FEET;
THENCE, NORTH 00° 00' 34" WEST, 12.25 FEET;
THENCE, NORTH 89° 59' 26" EAST, 12.96 FEET;
THENCE, NORTH 00° 00' 34" WEST, 26.38 FEET;
THENCE, NORTH 89° 59' 26" EAST, 38.49 FEET;
THENCE, NORTH 00° 00' 34" WEST, 25.63 FEET;
THENCE, NORTH 89° 59' 26" EAST, 17.95 FEET;
THENCE, NORTH 00° 00' 34" WEST, 18.71 FEET;
THENCE, NORTH 89° 59' 26" EAST, 24.75 FEET;
THENCE, SOUTH 45° 00' 34" EAST, 28.08 FEET;
THENCE, NORTH 89° 59' 26" EAST, 17.54 FEET;
THENCE, NORTH 00° 00' 34" WEST, 33.00 FEET;
THENCE, NORTH 89° 59' 26" EAST, 20.00 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 33.00 FEET;
THENCE, NORTH 89° 59' 26" EAST, 54.66 FEET;
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A-2
THENCE, SOUTH 00° 00' 34" EAST, 117.92 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 59.58 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 61.17 FEET;
THENCE, NORTH 89° 59' 26" EAST, 18.56 FEET;
THENCE, SOUTH 44° 59' 26" WEST, 121.71 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 11.89 FEET;
THENCE, SOUTH 44° 58' 16" WEST, 19.63 FEET;
THENCE, SOUTH 89° 59' 26" WEST, 16.78 FEET;
THENCE, SOUTH 00° 00' 34" EAST, 7.47 FEET;
THENCE, SOUTH 89° 59' 26" WEST, 20.29 FEET;
THENCE, SOUTH 44° 59' 26" WEST, 92.86 FEET;
THENCE, SOUTH 89° 59' 26" WEST, 32.00 FEET;
THENCE, NORTH 00° 00' 34" WEST, 200.00 FEET;
THENCE, NORTH 89° 59' 26" EAST, 6.00 FEET;
THENCE, NORTH 00° 00' 34" WEST, 10.00 FEET;
THENCE, NORTH 89° 59' 26" EAST, 4.00 FEET;
THENCE, NORTH 00° 00' 34" WEST, 51.78 FEET;
THENCE, NORTH 45° 00' 34" WEST, 36.77 FEET;
THENCE, NORTH 00° 00' 34" WEST, 59.00 FEET TO THE POINT OF BEGINNING.
PARCEL TWO:
A NON-EXCLUSIVE EASEMENT FOR PARKING PURPOSES, AS SET FORTH IN THAT CERTAIN "FIRST AMENDED AND RESTATED EASEMENT AGREEMENT BY CITY AND AGENCY" RECORDED APRIL 21, 1998 AS INSTRUMENT NO. 14150279 OF OFFICIAL RECORDS. PARCEL THREE: NON-EXCLUSIVE EASEMENTS AS SET FORTH IN THAT CERTAIN "DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS SANTA CLARA CONVENTION CENTER CAMPUS" RECORDED DECEMBER 21, 2020 AS INSTRUMENT NO. 24756283 OF OFFICIAL RECORDS.
ACTIVE/124809171.12
B-1
EXHIBIT B
FORM OF GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
______________
Attention:
MAIL TAX STATEMENT TO:
Attention:
(Space Above Line for Recorder’s Use Only)
The undersigned grantor(s) declare(s):
Documentary transfer tax is: $________________
( ) Computed on full value of property conveyed, or
( ) Computed on full value less value of liens and encumbrances remaining at time of sale. ( ) Unincorporated area: ( ) City of ____________, and
GRANT DEED
FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby acknowledged, SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA, successor to the former Redevelopment Agency of the City of Santa Clara, California, a separate public entity, hereby grants to [INSERT BUSINESS NAME], a California corporation, all of that certain real property more particularly described in Schedule 1 attached hereto and incorporated herein by this reference, together with any and all tenements, hereditaments, easements, rights-of-way, appurtenances, development rights or intangible property anywise appertaining to the same, subject to (a) all non-delinquent real property taxes, (b) all non-delinquent special assessments, if any, (c) all other liens, leases, easements, encumbrances, covenants, conditions, restrictions and other matters of record, and (d) all matters affecting the status of title that would be revealed by an accurate survey of the subject property.
SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY OF THE
CITY OF SANTA CLARA,
A separate public entity
APPROVED AS TO FORM
____________________________ ________________________
GLEN R. GOOGINS JŌVAN GROGAN
Agency General Counsel Executive Officer/City Manager
ACTIVE/124809171.12
B-2
1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
Telephone: (408) 615-2210
___________________________ Fax: (408) 241-6771
NORA PIMENTEL
Agency Secretary Date:______________________
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ___________ )
On ________________, 2024 before me,
(here insert name and title of the officer), personally appeared who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
ACTIVE/124809171.12
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EXHIBIT C
FORM OF CERTIFICATE OF BUYER
[INSERT BUSINESS NAME], [INSERT LEGAL ENTITY] the Buyer under that certain Agreement for Purchase and Sale of Property dated , 2024, by and between Buyer and Seller (the "Agreement") does hereby certify that all representations and warranties of Buyer set forth in the Agreement remain true in all material respects as of , 2024. [INSERT BUSINESS NAME], [INSERT
LEGAL ENTITY]
By:
Name:
Title:
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EXHIBIT D-1
FORM OF SELLER ESTOPPEL
PROPERTY: 5101 Great America Parkway, Santa Clara, California To: [BUYER]
The undersigned SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA, a separate public entity ("Seller"), or its predecessor-in-title, has heretofore leased or subleased to Tenant certain land described on Exhibit A hereto (the "Real Property") pursuant to that certain ground lease described in Exhibit B hereto (the "Ground Lease").
Seller hereby certifies to Buyer, Buyer’s lenders and each of their respective successors and assigns that as of the date hereof:
(a) The Ground Lease is in full force and effect, and has not been modified, amended, or supplemented, orally or in writing, except as listed on Exhibit B. There are no other agreements between Lessor and Assignor with respect to the Real Property or the Ground Lease except as listed on Exhibit B.
(b) Seller has constructed, or caused to be constructed, certain “Common Improvements” within the Common Area, as defined in Section 1403 of the Ground Lease. Seller as owner of Common Area, shall continue to operate and maintain the Common Improvements in accordance with and subject to the rights and obligations as set forth in the Ground Lease, subject to compliance by the Tenant and its obligations with respect to the Common Area and Common Improvements. Seller and Tenant’s rights and obligations are further defined in the Convention Center Campus Declaration of Covenants, Conditions and Restrictions, recorded on December 14, 2020 as Instrument No. 24756283.
(c) The monthly base rent currently due under the Ground Lease equals $[INSERT AMOUNT]. Any rent and other sums due Seller under the Ground Lease have been paid in full. To Seller's actual knowledge, (i) Tenant is not in breach or default of any of its obligations under the Ground Lease (including any indemnity obligation that has not yet been performed) and (ii) there is no circumstance which currently or with notice or the passage of time or both could become a breach or default under the Ground Lease.
(d) The monthly assessment for (i) Common Area costs currently due from Tenant under the Ground Lease equals $[INSERT AMOUNT] and (ii) construction of Common Improvements (collectively, along with assessments for Common Area costs, the “Assessments”) currently due from Tenant under the Ground Lease equals $[INSERT ACTIVE/124809171.12
AMOUNT]. Any Assessments due from Tenant under the Ground Lease have been paid in full.
(e) There are no uncured defaults by Seller under the Ground Lease, and no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default under the Ground Lease by Seller.
(f) No written notice of default has been given to Tenant alleging any default on the part of Tenant under the Ground Lease which remains outstanding. No written notice of default has been given to Seller alleging any default on the part of Seller under the Ground Lease which remains outstanding.
(g) Seller owns the fee interest in the Real Property, and such interest is not subject to any mortgage or other material encumbrance.
(h) The term of the Ground Lease will expire on April 30, 2035, unless extended by Tenant under its options to renew under the terms of the ground lease. Tenant has no right to terminate the Ground Lease, in whole or in part, except, to the extent contained in the Ground Lease. Tenant has not given Seller notice of any termination of the Ground Lease.
(i) Seller confirms and agrees that Buyer, any leasehold pledgee, or lender providing a loan to Buyer and/or its affiliates, and their respective successors and/or assigns, may rely on the statements contained herein.
(j) To the extent of any conflict or inconsistency between the Ground Lease and this instrument, this instrument shall govern.
Dated and effective as of the day set forth above.
Seller:
By:
Name:
Title:
ACTIVE/124809171.12
ACTIVE/124809171.12
EXHIBIT D-2
FORM OF DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS SANTA CLARA CONVENTION CENTER CAMPUS
ESTOPPEL CERTIFICATE
The undersigned, CITY OF SANTA CLARA (“City”) and the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA (“Agency”, and together with City, collectively, “Declarant”) hereby certify to (i) IA LODGING SANTA CLARA, L.L.C., a Delaware limited liability company and its successors and assigns (collectively, “Hotel Lessee”) and (ii) XHR ACQUISITIONS, LLC, a Delaware limited liability company and its successors and assigns (collectively, “Purchaser”) and each of Purchaser’s lenders, the following, as of [______], 2024:
1. Declarant is the declarant under that certain Declaration of Covenants, Conditions and Restrictions Santa Clara Convention Center Campus, dated as of December 14, 2020 and recorded on December 21, 2020 as Instrument No. 24756283 in the official records of Santa Clara County (the “Declaration”).
2. The Declaration is in full force and effect, and has not been modified, amended, or supplemented, orally or in writing.
3. There are no uncured defaults by Declarant under the Declaration and no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default by Declarant under the Declaration.
4. To the knowledge of Declarant, there are no uncured defaults under the Declaration by Hotel Lessee or Lessee under the Office Ground Lease (each as defined in the Declaration) and no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default under the Declaration by Hotel Lessee or Lessee under the Office Ground Lease.
5. Declarant confirms and agrees that Hotel Lessee, Purchaser and any lender providing a loan to Hotel Lessee, Purchaser and/or their affiliates, and their respective successors and/or assigns, may rely on the statements contained herein.
Dated and effective as of [______], 2024.
[Remainder of page intentionally blank; signatures follow.] ACTIVE/124809171.12
CITY:
CITY OF SANTA CLARA,
a chartered California municipal corporation
By:_______________________
Name:_____________________
Title:______________________
AGENCY:
SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY
OF THE CITY OF SANTA CLARA,
a separate public entity
By:_______________________
Name:_____________________
Title:______________________
ACTIVE/124809171.12
EXHIBIT D-3
FORM OF
BALLROOM LICENSE AGREEMENT ESTOPPEL CERTIFICATE
The undersigned, CITY OF SANTA CLARA (“City”), hereby certifies to (i) IA LODGING SANTA CLARA, L.L.C., a Delaware limited liability company and its successors and assigns (collectively, “Hotel Lessee”) and (ii) XHR ACQUISITIONS, LLC, a Delaware limited liability company and each of their respective lenders, successors and assigns (collectively, “Purchaser”) the following, as of [______], 2024:
The City and Hotel Lessee are party to that certain Ballroom License Agreement (the “Ballroom Agreement”) as more particularly described in Exhibit A attached hereto.
The Ballroom Agreement is in full force and effect, and has not been modified, amended, or supplemented, orally or in writing, except as set forth in Exhibit A.
Hotel Lessee is paying the license fee as provided for in the Ballroom Agreement. The current basic license fee is $[______] per annum, payable in equal monthly installments of $[_____] and has been paid by Hotel Lessee through [______], 2024; the percentage license fee, if any, has been paid by Hotel Lessee through [______], 2024; and no fees, rentals or other payments in advance of the current calendar month have been paid by Hotel Lessee.
(a) There are no uncured defaults by City under the Ballroom Agreement, and (b) no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default under the Ballroom Agreement by City.
To the knowledge of City, (a) there are no uncured defaults by Hotel Lessee under the Ballroom Agreement, and (b) no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default under the Ballroom Agreement by Hotel Lessee.
City confirms and agrees that Hotel Lessee, Purchaser and any lender providing a loan to Hotel Lessee, Purchaser and/or their affiliates, and their respective successors and/or assigns, may rely on the statements contained herein.
Dated and effective as of [______], 2024.
[Remainder of page intentionally blank; signatures follow.] ACTIVE/124809171.12
CITY:
CITY OF SANTA CLARA,
a chartered California municipal corporation
By:_______________________
Name:_____________________
Title:______________________
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D-1
EXHIBIT A
1. Ballroom License Agreement dated April 30, 1985, originally recorded in Book J347 at Page 2253 of the Official Records of Santa Clara County on May 16, 1985, between The Redevelopment Agency of the City of Santa Clara (the “Agency”) and SCCC Associates, as amended by First Amendment dated November 24, 1987 between the Agency and Santa Clara Convention Hotel Limited Partnership, as successor-in-interest to SCCC Associates, Second Amendment dated November 24, 1987 between the Agency and Santa Clara Convention Hotel Limited Partnership, and Third Amendment dated March 17, 1998 between the Agency and T-W Santa Clara LLC as supplemented by the Procedure for Operation for the Ballroom Facility established by the Agency.
ACTIVE/124809171.12
E-1
EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this “Assignment”) is made and entered into as of ___________________, 2024, by and between the Successor Agency to the Redevelopment Agency of the City of Santa Clara, a separate public entity (“Assignor”), and [INSERT BUSINESS NAME], [INSERT LEGAL ENTITY] (“Assignee”).
Recitals
A. Assignor, as seller, and Assignee, as buyer, entered into that certain Agreement of Purchase and Sale dated as of ______________, 2024 (the “Agreement”), pursuant to which Assignor agreed to sell to Assignee, and Assignee agreed to acquire from Assignor, among other things, Assignor’s ownership interest in the land legally described on Exhibit A attached hereto and all of Assignor’s right, title and interest in the building located at such parcel commonly known as 5101 Great America Parkway, Santa Clara, California (the “Property”), including Assignor’s interest in certain leases related thereto.
B. As part of the acquisition transaction contemplated by the Agreement, Assignor has agreed to assign to Assignee, and Assignee has agreed to assume, Assignor’s interest as landlord (together with all rights and obligations relating thereto) under the Leases (as defined in the Agreement), a schedule of which Leases is attached hereto as Exhibit B and incorporated herein by this reference (herein, the “Leases”).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee agree as follows:
1. Transfer and Assignment by Assignor. Assignor hereby transfers and assigns to Assignee all of Assignor’s right, title and interest, in, to and under the Leases.
2. Assumption by Assignee. Assignee hereby accepts the foregoing assignment and assumes and agrees to perform all of the duties, obligations, liabilities, commitments and covenants of Assignor, accruing from and after the date hereof with respect to or arising under each of the Leases.
3. Further Assurances. The parties hereto covenant and agree to execute such further instruments and take such further action as may be reasonably required by either party to fully effectuate the terms and provisions of this Assignment and the transactions contemplated herein.
4. Survival of Provisions. The covenants and obligations contained in this Assignment shall survive the consummation of the closing of the transactions contemplated by the Agreement and this Assignment shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
ACTIVE/124809171.12
E-2
5. Attorneys’ Fees and Costs. If either party commences an action for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other party for an amount equal to reasonable attorneys’ fees and court and other costs incurred.
6. Governing Law. This Assignment shall be governed by and construed in accordance with the laws of the State of California.
7. Counterparts. This Assignment may be executed in counterparts which, when integrated, shall constitute one original of this Assignment.
8. Conflict. In the event of any conflict or inconsistency between the terms hereof and the terms of the Agreement, the terms of the Agreement shall govern and control. Without limitation of the foregoing, all waivers, releases and other limitations on liability expressly set forth in the Agreement shall apply to this Assignment and the liabilities of the parties hereunder.
9. No Representation. Except as expressly set forth in the Agreement or this Assignment, it is hereby acknowledged that Assignor makes no representation or warranty of any kind or nature relative to the Leases. Assignor represents and warrants that it has good title to and has not assigned or pledged the Lease.
[signatures on following page]
ACTIVE/124809171.12
E-3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed by their duly authorized officers on the date first written above.
ASSIGNOR:
SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY OF THE
CITY OF SANTA CLARA,
A separate public entity
APPROVED AS TO FORM
____________________________ ________________________
GLEN R. GOOGINS JŌVAN GROGAN
Agency General Counsel Executive Officer/City Manager
1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
Telephone: (408) 615-2210
___________________________ Fax: (408) 241-6771
NORA PIMENTEL
Agency Secretary Date:______________________
ASSIGNEE:
[INSERT BUSINESS NAME],
[INSERT LEGAL ENTITY]
By:____________________
Its:______________________
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E-4
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASES
LEGAL DESCRIPTION OF PROPERTY
ACTIVE/124809171.12
E-5
EXHIBIT B TO ASSIGNMENT AND ASSUMPTION OF LEASES
SCHEDULE OF LEASES
Lease dated April 30, 1985 between the Redevelopment Agency of the City of Santa Clara or its predecessor in interest and SCCC Associates. [NTD: Seller to add amendments, assignments, etc.]
ACTIVE/124809171.12
EXHIBIT F
BILL OF SALE
THIS BILL OF SALE is made by the undersigned, SUCCESSOR AGENCY TO REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA, a separate public body (“Seller”), in favor of and to [INSERT BUSINESS NAME], [INSERT LEGAL ENTITY] (“Buyer”).
WHEREAS, Seller, as seller, and Buyer, as buyer, entered into that certain Agreement of Purchase and Sale dated as of ______________, 2024 (the “Agreement”), pursuant to which Seller agreed to sell to Buyer, and Buyer agreed to acquire from Seller, among other things, Seller’s ownership interest in the land legally described on Exhibit A attached hereto and all of Seller’s right, title and interest in the building located at such parcel commonly known as 5101 Great America Parkway, Santa Clara, California (the “Property”), including Seller’s interest in certain real and personal property related thereto;
WHEREAS, as part of the acquisition transaction contemplated by the Agreement, Seller is to sell, convey, and transfer to Buyer, by bill of sale, the Personal Property (as defined in the Agreement) and the Intangible Property (as defined in the Agreement).
NOW, THEREFORE, pursuant to the Agreement, and in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller by these presents does GIVE, GRANT, CONVEY, ASSIGN, TRANSFER, BARGAIN, SELL, REMISE, RELEASE, ALIENATE, SET OVER, and CONFIRM, unto Buyer, its successors and assigns, forever, as an entirety, all of Seller’s right, title, and interest, if any, in and to (a) the Personal Property (as defined in the Agreement); and (b) the Intangible Property (as defined in the Agreement).
Except as otherwise expressly provided in the Agreement, Seller makes no representations or warranties whatsoever, regarding said Personal Property or the Intangible Property, including, without limitation, any representations or warranties related to title, quality, merchantability or fitness for a particular purpose.
In the event of any conflict or inconsistency between the terms hereof and the terms of the Agreement, the terms of the Agreement shall govern and control. Without limitation of the foregoing, all limitations on liability expressly set forth in the Agreement shall apply to this Bill of Sale and the liabilities of Seller hereunder.
ACTIVE/124809171.12
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed by its duly authorized officer this ____________ day of ______________________, 2024.
SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY OF THE
CITY OF SANTA CLARA,
A separate public entity
APPROVED AS TO FORM
____________________________ ________________________
GLEN R. GOOGINS JŌVAN GROGAN
Agency General Counsel Executive Officer/City Manager
1500 Warburton Avenue
ATTEST: Santa Clara, CA 95050
Telephone: (408) 615-2210
___________________________ Fax: (408) 241-6771
NORA PIMENTEL Date:______________________
Agency Secretary
ACTIVE/124809171.12
F-4
EXHIBIT A TO BILL OF SALE
LEGAL DESCRIPTION
[To be attached.]
ACTIVE/124809171.12
1 ACTIVE/124809171.12
2 EXHIBIT G
FORM OF HOLDBACK ESCROW AGREEMENT
ESCROW HOLDBACK AGREEMENT
This ESCROW HOLDBACK AGREEMENT (the “Agreement”) is entered effective as of the [___] day of [____________] [____] (the “Effective Date”), by and among SUCCESSOR
AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA(“Seller”), [INSERT], a Delaware limited liability company (“Buyer”) and FIRST AMERICAN TITLE INSURANCE COMPANY (“Escrow Agent”). All capitalized terms not otherwise defined herein, shall have the meaning ascribed to them in the Purchase Agreement (as hereinafter defined).
WHEREAS, Buyer and Seller are parties to that certain Agreement of Sale and Purchase of Property dated as of [_______________], 2024 (the “Purchase Agreement”) with respect to certain property, as legally described on Exhibit A attached hereto (the “Real Property”); WHEREAS, (i) Seller is liable for breaches of its representations and warranties under the Purchase Agreement for a period of nine (9) months after the Closing (as the same may be extended pursuant to Section 9.3 of the Purchase Agreement, the “Survival Period”) and (ii) Seller has agreed to indemnify Buyer with respect to certain matters under the Purchase Agreement (collectively, the “Post-Closing Seller Obligations);
WHEREAS, under Section 9.5 of the Purchase Agreement, Seller has agreed to deliver Four Hundred Thousand and NO/100 DOLLARS ($400,000) of Seller’s proceeds from the sale (the “Escrow Holdback Funds”) to Escrow Agent at the Closing, which Escrow Holdback Funds are to be held by Escrow Agent in an escrow account (the “Escrow Holdback Account”) in accordance with the terms and conditions of this Agreement; and WHEREAS, Buyer and Seller desire to enter into this Agreement to set forth the terms and conditions related to the Escrow Holdback Funds.
NOW, THEREFORE, the parties hereto agree as follows:
1. Recitals. The Recitals are incorporated herein as if fully set forth below.
2. Disbursement of Escrow Holdback Funds to Buyer.
(a) If any action, suit, proceeding, claim, demand, or any other matter arises for which Buyer demands indemnification or payment from Seller in connection with a Post-Closing Seller Obligation (any of the foregoing constituting a “Claim” hereunder), Buyer shall notify Seller and Escrow Agent of such Claim and the amount or estimated amount of such Claim (the “Claim Amount”); provided, however, that all Claims (if any) shall be made by Buyer on or before the expiration of the Survival Period, and any Claims first made by Buyer after the expiration of the Survival Period shall be void and ineffective and shall be disregarded by Escrow Agent.
ACTIVE/124809171.12
3 (b) Upon receipt of a notice of a Claim by Buyer as described in Section 2(a) hereinabove, Escrow Agent shall notify the Seller of such Claim and Seller shall cause an authorized representative of Seller to provide in writing to Escrow Agent Seller’s authorization to either (i) pay to Buyer from the Escrow Holdback Funds the amount of such Claim, or (ii) if Seller contests such Claim, retain and continue to hold the funds in the amount of such Claim until the earlier to occur of (I) mutual written instructions from Seller and Buyer as to the disbursement of such amount, or (II) a final order, decree, or judgment of a court or other tribunal of competent jurisdiction directing the disbursement of such amount. (c) To the extent the Escrow Agent has been timely notified of any Claim pursuant to Section 2(b) above, and such Claim is pending on the expiration of the Survival Period, then an amount (the “Retained Amount”) equal to the lesser of:
(i) one hundred ten percent (110%) of the Claim Amount under all such pending Claims; or
(ii) the remainder of the Escrow Holdback Funds
shall be retained in the Escrow Account and remain subject to the terms of this Escrow Agreement until distributed in accordance with the final disposition of the underlying Claim, as directed either by (i) mutual written instructions from Seller and Buyer, or (ii) a final order, decree, or judgment of a court or other tribunal of competent jurisdiction directing the disbursement of such amount.
3. Disbursement of Escrow Holdback Funds to Seller. Following the expiration of the Survival Period, unless a Claim has been made by Buyer against Seller with respect to the PostClosing Seller Obligations which has not been resolved, then all remaining Escrow Holdback Funds shall be disbursed to Seller without further authorization from Buyer.
4. Default; Failure to Pay Amounts Due.
(a) If Seller fails to make any payment when due, and such failure continues for a period of fifteen (15) days after written notice by Buyer, then Seller shall be in default of this Agreement.
(b) If Seller fails to perform or comply with any term, condition or obligation of this Agreement, and such failure continues for thirty (30) days after receipt of written notice from Buyer (or such longer period as may be reasonable under the circumstances if the failure cannot be cured within thirty (30) days and Seller commences to cure within such time period and diligently and continuously prosecutes such cure to completion, but in any event not more than sixty (60) days in the aggregate), then Seller shall be in default of this Agreement. (c) All remedies are cumulative and shall be deemed additional to any and all other remedies to which Buyer may be entitled to at law or in equity. Buyer shall also have the right to restrain by injunction any violation or threatened violation by another of the terms, covenants or conditions of this Agreement, or to obtain a decree to compel performance of any such term, covenant or condition, it being agreed that the remedy at law for a breach of any such term, covenant or condition (except those, if any, requiring the payment of a liquidated sum) is not adequate.
ACTIVE/124809171.12
4 5. Deposit of Escrow Holdback Funds with Escrow Agent. Concurrently with the Closing, Seller will deposit with Escrow Agent the Escrow Holdback Funds, which Escrow Holdback Funds are to be held in escrow by Escrow Agent in the Escrow Holdback Account, which shall be an interest-bearing account in the name of Seller and disbursed to Seller and/or Buyer, as applicable, by Escrow Agent strictly in accordance with the terms and provisions of this Agreement. All out-of-pocket costs and fees incurred by Escrow Agent in connection with this Agreement shall be paid equally by Seller and Buyer.
6. Escrow Provisions.
(a) Appointment of Escrow Agent. Seller and Buyer hereby designate Escrow Agent to hold and disburse the Escrow Holdback Funds in accordance with the terms and conditions of this Agreement and Escrow Agent accepts such designation and appointment and agrees to act in accordance with the terms of this Agreement. Escrow Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. (b) Indemnity and Hold Harmless of Escrow Agent. If this Agreement or any matter relating hereto shall become the subject of any litigation or controversy, Buyer and Seller shall, jointly and severally, hold Escrow Agent free and harmless from any loss or expense, including attorneys’ fees, that may be suffered by it by reason thereof other than as a result of Escrow Agent’s breach of this Agreement, gross negligence or willful misconduct. In the event conflicting demands are made or notices served upon Escrow Agent with respect to this Agreement, or if there shall be uncertainty as to the meaning or applicability of the terms of this Agreement, Buyer and Seller expressly agree that Escrow Agent shall be entitled to file a suit in interpleader and to obtain an order from the court requiring Buyer and Seller to interplead and litigate their several claims and rights among themselves. Upon the filing of the action in interpleader and the deposit of the Escrow Holdback Funds into the registry of the court, Escrow Agent shall be fully released and discharged from any obligations imposed upon it by this Agreement with respect to the amount so deposited with the court, except for previous actions taken or suffered by Escrow Agent in bad faith, in willful disregard of this Agreement or involving gross negligence on the part of the Escrow Agent.
(c) Liability. Escrow Agent shall not be liable for the sufficiency or correctness as to form, manner, execution or validity of any instrument deposited with it, nor as to the identity, authority or rights of any person executing such instrument. It is agreed that the duties of the Escrow Agent are purely ministerial in nature, and that Escrow Agent’s duties hereunder shall be limited to the safekeeping of the Escrow Holdback Funds and documents received by it as Escrow Agent, and for their disposition in accordance with the terms of this Agreement. Seller and Buyer hereby release the Escrow Agent from any act done or omitted to be done by Escrow Agent in good faith in the performance of its duties hereunder. The Escrow Agent may seek the advice of independent legal counsel in the event of any dispute or question as to the construction of any of the provisions of this Agreement or its duties hereunder, and it shall incur no liability and shall be fully protected in respect of any action taken or suffered by it in good faith in accordance with the opinion of such counsel.
(d) Direction to Invest. Escrow Agent shall invest the Escrow Holdback Funds at the joint direction of Seller and Buyer. Escrow Agent shall have no liability for any investment ACTIVE/124809171.12
5 losses, including any losses on investments required to be liquidated prior to maturity in order to make a payment required by this Agreement. Interest earned on the Escrow Holdback Funds shall be paid to Seller and Seller shall be responsible for any income taxes payable thereon. For federal, state and local income tax purposes, the parties agree that Seller shall be treated as the owner of the Escrow Holdback Funds.
(e) Disputes; Conflicting Demands. In the event of a dispute or conflicting demands for the Escrow Holdback Funds or any portion thereof, Escrow Agent may at its option continue to hold the Escrow Holdback Funds until obtaining: (i) a court order directing its payment or (ii) it may tender the Escrow Holdback Funds into the court in connection with any appropriate proceeding to determine the rights and obligations of the parties hereunder.
7. Miscellaneous Provisions.
(a) Assignment. This Agreement will be binding upon Buyer, Seller and Escrow Agent and their respective successors and assigns and may not be assigned without the consent of the other parties hereto.
(b) No Third-Party Beneficiary. This Agreement is intended solely for the benefit of Buyer, Seller and Escrow Agent. No third party will have any rights or interest in any provision of this Agreement or the Escrow Holdback Funds. (c) Amendment and Waiver. No amendment to this Agreement will be valid unless it is made in writing and executed by the parties to this Agreement. No specific waiver or forbearance for any breach of any of the terms of this Agreement will be considered as a general waiver of that or any other term of this Agreement.
(d) Entire Agreement. This Agreement contains the complete and entire understanding of the parties and no changes will be recognized as valid unless they are made in writing and signed by the parties. No specific waiver if any of the terms of this Agreement will be considered as a general waiver.
(e) No Expansion of Rights or Liabilities. This Agreement is merely an extension of the Purchase Agreement and is not intended to expand the rights and/or obligations of the parties under the Purchase Agreement. The Liability Limitation shall apply to Seller’s obligations under this Agreement to the extent set forth in the Purchase Agreement. (f) Notices. All notices and approval required or permitted under this Agreement shall be served in the manner and to the address for such Party as set forth in the Purchase Agreement.
(g) Severability. The invalidity, illegality, or unenforceability of any provision of this Agreement pursuant to judicial decree will not affect the validity or enforceability of any other provision of this Agreement, all of which will remain in full force and effect. (h) Attorneys’ Fees. In the event of any litigation or dispute resolution proceeding between Buyer and Seller by reason of this Agreement, or otherwise to enforce the terms hereof, the prevailing party in such proceeding shall be entitled to recover reasonable ACTIVE/124809171.12
6 attorney’s fees in addition to all other expenses incurred by such prevailing party with respect to such proceeding.
(i) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to any otherwise applicable principles of conflicts of laws.
(j) Counterparts. This Agreement may be executed in counterparts, each of which, when taken together, shall constitute one and the same document. An email signature of either party shall constitute an original signature of such party for all purposes. [SIGNATURES FOLLOW]
ACTIVE/124809171.12
7 The parties hereto have executed this Escrow Holdback Agreement as of the date and year first written above.
BUYER:
ESCROW AGENT:
SELLER:
SUCCESSOR AGENCY TO THE REDEVELOPMENT
AGENCY OF THE CITY OF SANTA CLARA,
a separate public entity
________________________
JŌVAN GROGAN
Executive Director
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
Date: ________________________
ATTEST:
_____________________________
NORA PIMENTEL
Agency Secretary
APPROVED AS TO FORM
____________________________
GLEN R. GOOGINS
Agency General Counsel
ACTIVE/124809171.12
8 EXHIBIT H
TITLE COMPANY’S PRO FORMA
ACTIVE/124809171.12
9 EXHIBIT I
AFFORDABILITY COVENANT
OFFICIAL BUSINESS
Document entitled to free
recording per Government
Code Section 6103
Recording Requested By and
When Recorded Mail To:
CITY OF SANTA CLARA
City Clerk’s Office
1500 Warburton Avenue
Santa Clara, California 95050
Attention: Division Manager
______________________________________________________________________ SPACE ABOVE THIS LINE FOR RECORDER’S USE
DECLARATION OF RESTRICTIVE COVENANT
5101 GREAT AMERICA PARKWAY
THIS DECLARATION OF RESTRICTIVE COVENANT (“Declaration”) is made this ____ day of _____________, 2024 by the City of Santa Clara as the Successor Agency to the Redevelopment Agency of the City of Santa Clara (the "Agency", the "Declarant") with reference to the following facts.
RECITALS
A. 5101 Great America Parkway (“Property”) was developed by the former Redevelopment Agency of the City of Santa Clara ("Former RDA") upon property previously owned by the Former RDA and currently owned by the Declarant, more particularly described on the Legal Description attached as Exhibit A hereto.
B. The Former RDA, along with all redevelopment agencies in the State of California, was dissolved effective February 1, 2012 pursuant to legislation adopted by the California Legislature, and all assets of the Former RDA were transferred to the Agency in accordance with ABX1 26 as subsequently amended by AB 1484 and as further amended by SB 107.
C. The Oversight Board for the Agency approved a Long Range Property Management Plan ("LRPMP") in accordance with Health and Safety Code ACTIVE/124809171.12
10 Section 34191.5, providing for the disposition of the real property assets of the Former RDA, which LRPMP was subsequently approved by the California Department of Finance.
D. The LRPMP calls for Property to be sold for maximum value subject to its ground lease.
E. Prior to the disposition of the property under the LRPMP, the Agency is required to comply with the Surplus Land Act, Government Code section 54220 et seq.
F. The Agency declared the property surplus and issued notice of availabilities to interested entities in which it received no notices of interest.
G. In preparation for the disposition of the Property, the Agency is recording an affordable housing restrictive covenant in compliance with Government Code section 54233 prior to disposition of the property.
NOW, THEREFORE, in consideration of the foregoing Recitals, Declarant hereby declares that the Property and all interests in the Property, including the fee interest of all owner(s), shall be subject to the following restrictive covenant which shall run with the land, and be binding on Declarant and its successors and assigns, and on all parties having or acquiring any right, title or interest in or to Property or any part thereof, their heirs, successors and assigns.
1. Affordability Covenants. If ten (10) or more residential units are developed on the Property, not less than 15 percent of the total number of residential units developed on the property shall be sold or rented at affordable housing cost, as defined in Section 50052.5 of the California Health and Safety Code, or affordable rent, as defined in Section 50053 of the California Health and Safety Code, to lower income households, as defined in Section 50079.5 of the California Health and Safety Code. Rental units shall remain affordable to and occupied by lower income households (to the extent occupied) for a period of 55 years for rental housing (from the date of the initial rental of such affordable unit) and 45 years for ownership housing (from the date of the initial sale of each affordable unit) (collectively, the “Covenant Periods”). The initial occupants of all ownership units shall be lower income households, and the units shall be subject to an equity sharing agreement consistent with the provisions of paragraph (2) of subdivision (c) of 65915 of the California Government Code. These requirements shall be covenants or restrictions running with the land and shall be enforceable against any owner who violates a covenant or restriction and each successor-ininterest who continues the violation by any of the entities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the California Government Code.
2. Release of Covenants. Following the expiration of the applicable Covenant Periods contained herein, Declarant shall promptly issue and record a release of this Declaration in a form reasonably acceptable to the owner of the Property.
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11 ACTIVE/124809171.12
12 IN WITNESS WHEREOF, the Declarant has caused this Declaration to be signed as of the date and year first above written.
CITY OF SANTA CLARA, CALIFORNIA,
a chartered California municipal corporation
APPROVED AS TO FORM:
Glen R. Googins
City Attorney
Jōvan D. Grogan
City Manager/Executive Officer
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”
Resolution/Hyatt Purchase and Sale AgreementRev:
11/22/17
RESOLUTION NO.
A RESOLUTION OF THE SUCCESSOR AGENCY TO THE
FORMER REDEVELOPMENT AGENCY OF THE CITY OF SANTA
CLARA, CALIFORNIA (“SUCCESSOR AGENCY”) AUTHORIZING
THE CITY MANAGER/EXECUTIVE OFFICER TO NEGOTIATE
AND EXECUTE A PURCHASE AND SALE AGREEMENT WITH
XHR ACQUISITIONS LLC RELATED TO THE SALE OF HYATT
PARCEL LOCATED AT 5101 GREAT AMERICA PARKWAY
[APN 104-55-012], TO MAKE MINOR MODIFICATIONS AND
RECORD DOCUMENTS AS NECESSARY TO IMPLEMENT THE
AGREEMENT AND CLOSE ESCROW
BE IT RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:
WHEREAS, the former Redevelopment Agency of the City of Santa Clara (“Former RDA”), along with all redevelopment agencies in the State of California,was dissolved effective February 1, 2012 in accordance with AB 1X 26 (the "Dissolution Act"); WHEREAS, Former RDA, prior to its dissolution, acquired certain properties including the property located at 5101 Great America Parkway ("Hyatt Property") for redevelopment purposes; WHEREAS, the Dissolution Act, as amended by AB 1484, clarified that the successor agency is a separate legal entity from the City;
WHEREAS, the City in accordance with the Dissolution Act elected to act as the successor agency to the Former RDA;
WHEREAS, in accordance with the Dissolution Act the assets of the Former RDA were transferred to the Successor Agency to the Former RDA (“Successor Agency”); WHEREAS, the Successor Agency prepared a Long Range Property Management Plan ("LRPMP") in accordance with the Dissolution Act, which LRPMP calls for the Successor Agency to dispose of its properties and the proceeds of sale to be used first to pay enforceable obligations of the Successor Agency and if there are remaining proceeds after payment of enforceable obligations, for the distribution of the remaining proceeds to the affected taxing entities was approved by the Oversight Board to the Successor Agency and the California Department of Finance ("DOF");
Resolution/Hyatt Purchase and Sale AgreementRev:
11/22/17
WHEREAS, the LRPMP calls for the Successor Agency to dispose of the Hyatt Property; WHEREAS, the Hyatt Property is leased to I.A. Lodging Santa Clara LLC for a hotel (“Hotel Lease”);
WHEREAS, the Successor Agency adopted Resolution 21-2 declaring the Hyatt Property as surplus and published a Notice of Availability pursuant to the Surplus Land Act; WHEREAS, under the Surplus Land Act the Successor Agency is required to record Affordability Covenants pursuant to Government Code Sections 54233 and 54233.5; WHEREAS, the Oversight Board to the Successor Agency authorized a disposition process for the disposition of the Former RDA's properties, including the Hyatt Property, including hiring a real estate broker to solicit offers for the Hyatt Property; WHEREAS, the Successor Agency is charged with securing the highest offer possible in the sale of its assets;
WHEREAS, the Successor Agency conducted a marketing / bidding process consistent with the LRPMP and at the conclusion of that effort identified the buyer with the highest offer; WHEREAS, the Successor Agency received several offers to purchase the Hyatt Property and following a review and negotiating process, the highest responsive bidder was determined to be XHR Acquisitions LLC (“Hyatt Owner”) with a purchase price of $25,000,000; WHEREAS, the City Council acting as the governing board of the Successor Agency has determined that sale of the Hyatt Property is in the best interest of the Successor Agency, meets the requirements of the LRPMP and is consistent with the Dissolution Laws.
NOW THEREFORE, BE IT FURTHER RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:
1. That the City Council acting as the Governing Body of the Successor Agency to the Redevelopment Agency of the City of Santa Clara (Successor Agency) finds the above recitals are accurate.
2. That City Council acting as the Governing Body of the Successor Agency hereby approves Resolution/Hyatt Purchase and Sale AgreementRev:
11/22/17
the sale of the Hyatt Property to Hyatt Owner;
3. That the City Manager as the Executive Officer of the Successor Agency is authorized to negotiate and to execute the Purchase and Sale Agreement with Hyatt Owner as consistent with the staff report and is further authorized to execute any and all documents necessary to accomplish the transfer of the Hyatt Property, including, but not limited to, a replacement declaration, amendment to the ballroom lease, affordability covenant, bills of sales, assignment and assumptions agreements, grant deeds, estoppel certificates, amendments and ancillary documents.
4. Effective date. This resolution shall become effective immediately.
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 , 2024, BY THE FOLLOWING VOTE:
AYES: COUNCILORS:
NOES: COUNCILORS:
ABSENT: COUNCILORS:
ABSTAINED: COUNCILORS:
ATTEST:
NORA PIMENTEL, MMC
ASSISTANT CITY CLERK
CITY OF SANTA CLARA
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-1440 Agenda Date: 5/7/2024
REPORT TO COUNCIL
SUBJECT
Action on an Agreement with Bellecci and Associates, Inc. for Design Professional Services for the Bowers Park Parking Lot Rehabilitation Project and Related Budget Amendments
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure Promote Sustainability and Environmental Protection
Enhance Community Sports, Recreational and Arts Assets
BACKGROUND
On August 20, 2019, the City Council approved the City of Santa Clara’s Green Stormwater Infrastructure (GSI) Plan which requires construction and retrofit of low impact development (LID) measures on public and private lands, including streets, storm drains, parking lots and building roofs, among others. GSI refers to sustainable storm drain infrastructure that reduces runoff volumes, disperses runoff to vegetated areas, promotes water absorption into the ground, and treats runoff before it reaches the creeks and the Bay. Some examples of LID measures include pervious pavement, infiltration basins, bioretention facilities (or raingardens) and green roofs.
In 2021, the cities of Santa Clara and Palo Alto were awarded a San Francisco Bay Water Quality Improvement Fund (SFBWQIF) grant through the United States Environmental Protection Agency Region 9 to demonstrate the effectiveness of retrofitting parking lots with green stormwater infrastructure. The grant is a multi-City grant in which Palo Alto serves as the lead agency and includes improvements within Santa Clara at the Bowers Park parking lot. On June 8, 2021, City Council authorized the City Manager to execute the San Francisco Bay Water Quality Improvement Fund Grant Agreement (Fund Agreement) with the City of Palo Alto for the Bowers Park Parking Lot Rehabilitation Project (Project). The Fund Agreement enables the City to receive grant reimbursements for the parking lot improvements through Palo Alto in the total amount of $332,902 with equivalent matching funds required by the City.
Bowers Park is located at 2582 Cabrillo Avenue and is adjacent to Bowers Elementary School and Cabrillo Middle School. The park contains a new playground that was constructed in 2020, a community building with detached restrooms, an open field, a parking lot, and other park amenities.
The parking lot consists of approximately 7,750 square feet of paved area that contains 13 standard, and 2 accessible parking spaces which are in need of repair.
The proposed Project consists of pavement rehabilitation, GSI, energy-efficient lighting, electric vehicle charging stations, a solar canopy, bicycle parking, a potential increase in parking capacity, and vehicle and pedestrian circulation improvements. The grant provides funding for the reconstruction of the parking lot and construction of the GSI improvements. All other items in the City of Santa Clara Page 1 of 4 Printed on 5/3/2024
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24-1440 Agenda Date: 5/7/2024
scope of work mentioned above will be funded as appropriate and available through other funding sources, such as contributions from Silicon Valley Power and Parks and Recreation capital funds.
In order to prepare the Project for design and public bidding, the City needs to retain a consultant to provide engineering design services.
DISCUSSION
A formal selection process was utilized to solicit proposals from consultants to provide the required professional services. In June 2023, a competitive Request for Proposals (RFP) was published on the City’s e-procurement platform which has over 48,400 members and was viewed by 59 members, including consultants, plan rooms, and builder exchanges, among others. Additional firms were able to view the RFP as members of various plan rooms and builder exchanges. Staff also provided direct notifications to consultants who had viewed similar projects in the past.
The City received proposals from three firms: Bellecci and Associates, Inc., David Whitney Architects, and CaliChi Design Group. A proposal review panel consisting of staff from the Department of Public Works (DPW) and the Parks & Recreation Department evaluated each proposal against the criteria set forth in the RFP, including responsiveness to the RFP, project approach, ability to complete the project within the proposed schedule, and project experience. Based on the panel’s evaluation, Bellecci and Associates, Inc. (Bellecci) was the highest-ranking proposer based on several factors.
Bellecci demonstrated a strong project understanding and an excellent project approach to investigate and resolve the issues presented in the RFP. Bellecci has extensive civil engineering experience working in the Bay Area and has successfully completed similar projects in the past.
The proposed Agreement (Attachment 1) includes a negotiated scope of services and fees based upon the understanding of the work to be performed. The scope of services includes preliminary engineering, construction documents, bidding support, construction support, and project close-out.
Staff recommends entering into the Agreement with Bellecci and Associates, Inc. to provide Design Professional Services for the Project. The Agreement includes prevailing wage requirements.
ENVIRONMENTAL REVIEW
This action is for design professional services and the action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act ("CEQA") Guidelines section 15378 as the action being considered does not commit the City to undertake the project and future discretionary approvals are required by the City to approve the project for construction.
Environmental review in accordance with CEQA will occur as part of the design and approval process. As a recipient of federal grant funding, the Project is also required to be reviewed in accordance with the National Environmental Policy Act (NEPA).
FISCAL IMPACT
The proposed Agreement is for a total not-to-exceed amount of $229,866, consisting of $199,883 for basic services and $29,983 for additional services.
The budget amendments below establish a new project “Bowers Park Parking Lot Rehabilitation Project” in the Storm Drain Capital Fund in the amount of $382,344. Funding for the Agreement is available by recognizing grant funding in the amount of $332,902 from the San Francisco Bay Water Quality Improvement grant and transferring $49,442 from Silicon Valley Power’s Greenhouse Gas City of Santa Clara Page 2 of 4 Printed on 5/3/2024
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24-1440 Agenda Date: 5/7/2024
Program (191-1325) in the Electric Operating Grant Trust Fund for the design portion related to electric vehicle charge stations and solar canopies. Additional Project funding necessary for the construction phase will be brought forward for Council’s consideration in the future.
Budget Amendment
FY 2023/24
Current Increase/
(Decrease)
Revised
Storm Drain Capital Fund (535)
Revenues
Other Agencies Revenue (SFBWQIF Grant
Funds)
$3,000,000 $332,902 $3,332,902
Transfers From
Electric Operating Grant Trust Fund $0 $49,442 $49,442
Expenditures
Bowers Park Parking Lot Rehabilitation
Project (New Project)
$0 $382,344 $382,344
Electric Operating Grant Trust Fund (191)
Expenditures
Electric Department
(Materials/Services/Supplies)
$20,494,709 ($49,442) $20,445,267
Transfers To
Storm Drain Capital Fund $0 $49,442 $49,442
COORDINATION
This report has been coordinated with the Finance Department, the Parks & Recreation Department, Silicon Valley Power, and the City Attorney’s Office.
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. Approve and Authorize the City Manager to execute an Agreement for Design Professional Services with Bellecci and Associates, Inc. for the Bowers Park Parking Lot Rehabilitation Project in the amount not-to-exceed $229,866, in a final form approved by the City Attorney; City of Santa Clara Page 3 of 4 Printed on 5/3/2024
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24-1440 Agenda Date: 5/7/2024
2. Authorize the City Manager to make minor modifications, including time extensions, to the agreement if needed; and
3. Approve the following FY 2023/24 budget amendments:
A. In the Storm Drain Capital Fund, increase the Other Agencies Revenue estimate in the amount of $332,902 to recognize SFBWQIF grant funding, recognize a transfer from the Electric Operating Grant Trust Fund in the amount of $49,442, and establish the Bowers Park Parking Lot Rehabilitation Project in the amount of $382,344 (five affirmative Council votes required to appropriate additional revenue).
B. In the Electric Operating Grant Trust Fund, decrease the Electric Department budget and establish a transfer to the Strom Drain Capital Fund in the amount of $49,442 (majority affirmative Council votes required).
Reviewed by: Craig Mobeck, Director of Public Works
Approved by: Jovan Grogan, City Manager
ATTACHMENTS
1. Consultant Agreement
City of Santa Clara Page 4 of 4 Printed on 5/3/2024
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Design Professional Agreement with Bellecci and Associates Page 1 Rev. 09-28-18
EBIX Insurance No. S200005276
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
BELLECCI AND ASSOCIATES, INC.
FOR
BOWERS PARK PARKING LOT REHABILITATION PROJECT
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Bellecci and Associates, Inc., a California Corporation, (Consultant). City and Consultant may be referred to individually as a Party or collectively as the Parties or the Parties to this Agreement.
RECITALS
A. City desires to secure the design professional services more fully described in this Agreement, at Exhibit A, entitled Scope of Services; B. Design professional includes licensed architects, licensed landscape architects, registered professional engineers and licensed professional land surveyors; C. Consultant represents that it, and its subconsultants, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
D. The Parties have specified herein the terms and conditions under which such services will be provided and paid for.
The Parties agree as follows:
AGREEMENT TERMS AND CONDITIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Consultant shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A Scope of Services
Exhibit B Schedule of Fees
Exhibit C Insurance Requirements
Design Professional Agreement with Bellecci and Associates Page 2 Rev. 09-28-18
Exhibit D Labor Compliance Addendum (if applicable)
Exhibit E Milestone Schedule
Exhibit F - Project Management Document Software
This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin upon the date this Agreement is signed by both parties and terminate on December 31, 2029.
3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Consultant shall perform those Services specified in Exhibit A within the time stated in Exhibit B. Time is of the essence.
A. All reports, costs estimates, plans and other documentation which may be submitted or furnished by Consultant shall be approved and signed by an appropriate qualified licensed professional in the State of California.
B. The title sheet for specifications and reports, and each sheet of plans, shall bear the professional seal, certificate number, registration classification, expiration date of certificate and signature of the design professional responsible for their preparation.
4. WARRANTY
Consultant expressly warrants that all services covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements and instructions upon which this Agreement is based. Consultant agrees to promptly correct any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Consultant. If Consultant fails to promptly correct services, City may make corrections or replace materials or services and charge Consultant for the cost incurred by City.
Design Professional Agreement with Bellecci and Associates Page 3 Rev. 09-28-18
5. QUALIFICATIONS OF CONSULTANT - STANDARD OF CARE
Consultant represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Consultants representations regarding its skills and knowledge. Consultant shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
All documents furnished under Exhibit A shall be of a quality acceptable to City.
The criteria for acceptance of the work provided under this Agreement shall be a product of neat appearance, well organized, that is technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by City for similar Projects.
6. COMPENSATION AND PAYMENT
In consideration for Consultants complete performance of Services, City shall pay Consultant for all materials provided and Services rendered by Consultant in accordance with Exhibit B, entitled SCHEDULE OF FEES. The maximum compensation of this Agreement is Two Hundred Twenty-Nine Thousand Eight Hundred Sixty-Six ($229,866) subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Consultants expense. Consultant shall not be entitled to any payment above the maximum compensation under any circumstance.
7. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than Thirty (30) days prior written notice to Consultant.
B. Termination for Default. If Consultant fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Consultant.
C. Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) days after the notice of termination, Consultant will deliver to City all City information or material that Consultant has in its possession.
Design Professional Agreement with Bellecci and Associates Page 4 Rev. 09-28-18
8. ASSIGNMENT AND SUBCONTRACTING
City and Consultant bind themselves, their successors and assigns to all covenants of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Consultant shall not hire subconsultants without express written permission from City.
Consultant shall be as fully responsible to City for the acts and omissions of its subconsultants, and of persons either directly or indirectly employed by them, as Consultant is for the acts and omissions of persons directly employed by it.
9. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
10. INDEPENDENT CONSULTANT
Consultant and all person(s) employed by or contracted with Consultant to furnish labor and/or materials under this Agreement are independent Consultants and do not act as agent(s) or employee(s) of City. Consultant has full rights to manage its employees in their performance of Services under this Agreement.
11. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed or received by or for Consultant and all other written information submitted to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Consultant which is otherwise known to Consultant or becomes generally known to the related industry shall be deemed confidential.
12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Consultant may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Consultant shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.
Design Professional Agreement with Bellecci and Associates Page 5 Rev. 09-28-18
13. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Consultant for the purpose of verifying any and all charges made by Consultant in connection with Consultant compensation under this Agreement, including termination of Consultant. Consultant agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Consultant shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.
Consultant shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Consultant agrees to assist City in meeting Citys reporting requirements to the State and other agencies with respect to Consultants Services hereunder.
14. HOLD HARMLESS/INDEMNIFICATION
To the extent permitted by law, Consultant agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorneys fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, to the extent arising out of, pertaining to, or related to the negligence, recklessness, or willful misconduct of the Consultant, its employees, subconsultants, or agents in the performance, or non-performance, of Services under this Agreement.
15. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Consultant shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.
16. WAIVER
Consultant agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither Citys review, acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.
Design Professional Agreement with Bellecci and Associates Page 6 Rev. 09-28-18
17. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Santa Clara
Attention: Department of Public Works Design Division 1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected], and
[email protected]
And to Consultant addressed as follows:
Bellecci and Associates, Inc.
Attention: Daniel Leary
7077 Koll Center Parkway, Ste. 210
Pleasanton, CA 94566
and by e-mail at [email protected] The workday the e-mail was sent shall control the date notice was deemed given.
An e-mail transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.
18. COMPLIANCE WITH LAWS
Consultant shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to The Code of the City of Santa Clara, California (SCCC). In particular, Consultants attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered. Additionally Consultant has read and agrees to comply with Citys Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).
19. CONFLICTS OF INTEREST
Consultant certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Consultant and that no person associated with Consultant has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Consultant is familiar with the provisions of California Government Code section 87100 and Design Professional Agreement with Bellecci and Associates Page 7 Rev. 09-28-18
following, and certifies that it does not know of any facts which would violate these code provisions. Consultant will advise City if a conflict arises.
20. FAIR EMPLOYMENT
Consultant shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.
21. NO USE OF CITY NAME OR EMBLEM
Consultant shall not use Citys name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
22. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
23. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.
25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.
26. STATEMENT OF ECONOMIC INTERESTS
Due to the nature of the Services to be performed, Consultant shall promptly file a Statement of Economic Interests (Form 700) upon commencement of the Design Professional Agreement with Bellecci and Associates Page 8 Rev. 09-28-18
Agreement in accordance with California Government Code section 87200, et seq.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives.
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
Approved as to Form: Dated:
GLEN R. GOOGINS
City Attorney
J VAN D. GROGAN
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
CITY
BELLECCI AND ASSOCIATES, INC.
a California Corporation
Dated:
By (Signature):
Name: Daniel Leary
Title: Principal
Principal Place of
Business Address:
7077 Koll Center Parkway, Ste. 210
Pleasanton CA, 94566
Email Address: [email protected]
Telephone: (925) 685-4569
Fax: N/A
CONSULTANT
2024.03.26
0 ruc4v-
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
BELLECCI AND ASSOCIATES, INC.
FOR
BOWERS PARK PARKING LOT REHABILITATION PROJECT
EXHIBIT A
SCOPE OF SERVICES
The Services to be performed for the City by the Consultant under this Agreement are set forth below.
I. GENERAL
This Scope of Services is anticipated as necessary to meet Citys objectives as described under Section II, BACKGROUND AND Project, and Section III, DESCRIPTION OF SERVICES of this document. Consultant and City agree that this Scope of Services incorporates Consultants professional qualifications and experience and will meet the Citys objectives.
Consultant will be expected to provide complete, professional, high-quality Services and products; to consult City personnel, and others who are involved with the Project; and to provide the expertise, guidance, advice, and assistance in accomplishing the work.
II. BACKGROUND AND Project
In April 2020, the City of Santa Clara and City of Palo Alto, submitted an application to the Environmental Protection Agency (EPA) for the San Francisco Bay Water Quality Improvement Fund grant. The grant funding application includes proposals to retrofit two existing parking lots in Palo Alto and Santa Clara, to develop a Guidebook for Greener Parking Facility Design and a certified workforce training framework for GSI maintenance, and provide community outreach and maintenance by trained partners and city staff. On September 27, 2021, the EPA awarded the grant to both cities in a total amount of $1,216,351.
Although the approved grant funding is provided to both cities, each city will independently manage its Project. The Bowers Park Parking Lot Rehabilitation Project (Project) consists of pavement rehabilitation, installation of a bioretention, installation of electrical vehicle charge stations and solar canopies, and expanding the parking area. The Bowers Park Parking Lot is located at 2582 Cabrillo Avenue, Santa Clara, CA 95051 and is bounded by Cabrillo Avenue to the North, residential homes to the West, and Cabrillo Middle School to the East.
The parking lot contains 13 regular and 2 accessible parking stalls. The parking Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 2
lot concrete area, which includes entrance and parking stalls, equates to approximately 7,750 square feet. Loads of pollutants in the area likely reflect general urban sources associated with developments from the 1950s. The Project provides a unique opportunity for the City to leverage grant funds and reassess the Bowers Park parking lot and potentially incorporate improvements, which include, but are not limited to:
1. Water Quality/drainage/GSI
2. Parking demand and efficient vehicle circulation
3. Pedestrian circulation, including adjacent pedestrian crosswalk
4. Increase the width of driveway aisle for emergency vehicle access
5. Energy-efficient lighting
6. Wayfinding and interpretive signage
7. ADA upgrades
8. Bike parking
9. Electric vehicle charge stations
10. Solar Canopy
III. DESCRIPTION OF SERVICES
All design work shall be done in accordance with the Department of Transportation Standard Specifications and Details, City Standard Plans and Specifications, ADA Design Guidelines, latest building and fire codes, and other applicable codes and standards recommended by the Consultant. Below is an outline of required services; however, it is the responsibility of the Consultant to independently assess the Project and provide improvement recommendations to meet the goals for this Project.
Consultant shall:
1) Perform thorough site investigations of all affecting infrastructures, which include, but are not limited to: pavement, parking spaces and area, trees and plantings, wet and dry utilities, right-of-way, sidewalks, driveways, and permeable and impervious areas.
2) Review as-built information (as available) to understand history of previous site construction and improvements.
3) Perform field review and investigation of site frontage to determine compliance with current City standards for driveways, curb & gutter, sidewalks, and ADA regulations. Recommend replacement of existing facilities as necessary to conform to current standards/regulations. 4) Develop design options/alternatives for
repair/rehabilitation/restoration/replacement of site pavements and ancillary facilities (e.g. drainage, curbs, gutters, sidewalks, ramps, striping, etc.).
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 3
5) Incorporate electric vehicle (EV) chargers, EV infrastructure, and solar electric generating systems into the plans, specifications, and estimates.
Coordinate scope of work related to EV and solar with City staff including Silicon Valley Power (SVP) staff.
6) Develop plans, specifications and estimates at various design levels. 7) Provide support to CITY in obtaining building and fire permits. 8) Provide support to CITY during bid & award, construction, and postconstruction phases of the Project. 9) Perform Project management activities to ensure timely and on-budget completion of services.
10) Design Water Quality/drainage/GSI to meet latest Municipal Regional Permits Requirements
11) Design shall consider parking demand and efficient vehicle circulation, and possibly extend the current parking area northerly towards Cabrillo Avenue.
12) Design shall consider pedestrian circulation, including adjacent pedestrian crosswalk
13) Review and design for updated width of driveway aisle for emergency vehicle access
14) Design shall consider Bike parking
15) Perform geotechnical engineering and soil characterization to determine the classification that pertains to soil off haul.
Consultant shall provide the Services described herein through a Project team, comprised of Consultant and sub-Consultants identified as follows:
1. Consultant: BELLECCI AND ASSOCIATES, INC.
2. Sub-Consultants to BELLECCI AND ASSOCIATES, INC.:
1) Miller Pacific Engineering Group Geotechnical Engineering 2) RHAA Landscape Architecture
3) Pezzoni Engineering Electrical Engineering
4) Woodreeve Arborists Arborist
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 4
Any changes to the Project team through the course of the Services shall be approved in writing by City.
IV. RESPONSIBILITIES OF CITY
CITY will provide the following information and support for the Project as-available and applicable:
A. Record drawings (as-available)
B. CITYs Standard Details, Specifications, Benchmark, and Design Criteria.
C. Storm Drain (SD), Sanitary Sewer (SS), Electric, Fiber, Water and Recycled Water Block Book Maps (as-available).
D. Geographic Information System (GIS) data including land parcels, street centerlines, City sanitary sewers, City storm drains, and aerial photographic tiles
E. Payment of permit application fees with other internal departments, if required.
F. Filing exemption under the California Environmental Quality Act, if applicable.
Besides the above, the City will work closely with the Consultant to provide any other data or records, as available and necessary for the work involved.
V. BASIC SCOPE OF SERVICES
Project MANAGEMENT
Consultant shall:
1.1 Manage its team and overall Project activities consistent with the direction from CITY in order to meet the Project schedule and budget. Manage sub-Consultants, maintain schedule and budget, anticipate and mitigate potential design issues and delays and coordinate and update the City on the overall progress of the Project.
1.2 Organize and attend Project meetings with the City to discuss Project progress, decisions, and direction and to coordinate activities. Meetings shall be held at key Project milestones and shall include, but are not limited to:
1.2.1 Kick-off Meeting
1.2.2 Preliminary/Evaluation Meeting
1.2.3 Community meeting
1.2.4 Parks and Recreation Commission Meeting
1.2.5 City Council Meeting
1.2.6 Design Kick-off Meeting
1.2.7 65% Design Review Meeting
1.2.8 95% Design Review Meeting
1.2.9 Punch List/Project Acceptance Meeting
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 5
1.2.10 Other meetings identified in this Agreement
1.3 Coordinate with CITY, design team members, Consultants, utility companies, other government agencies, and other affected parties as required throughout the duration of the Project as well as the Quality Assurance/Quality Control (QA/QC) activities for Project deliverables.
1.4 Prepare, monitor, and update progress schedule in MS Project format beginning at the kickoff meeting and ending at contract award for the last submittal package.
Schedule shall show significant milestones for the Project. Consultant shall notify CITY if there are delays or potential delays in any phase of the Project. In such cases, Consultant shall make up the schedule in subsequent phases of the Project or provide information to CITY substantiating a request for time extension (which may not be approved). The schedule shall be maintained at all times and shall be updated each time progress and milestones are achieved and/or changed.
1.5 Meetings: Meetings shall be budgeted for and invoiced under each respective Task or activity requiring a meeting and not as Project management. Preparation for meetings shall be considered as included in the Task or activity for which the meeting is involved. A kick-off meeting shall be conducted with designated CITY staff prior to beginning work to review anticipated Tasks and schedule, review available information and needs, and address any outstanding questions regarding the Project moving forward raised by CITY or Consultant. During the course of Services while there is active work on the Project, Consultant shall schedule and attend brief bi-weekly (every other week) conference calls with CITY. The purpose of the bi-weekly conference calls will be to keep CITY appraised on the Project's progress and address any issues that may arise during the course of Services.
1.6 Provide monthly progress reports.
1.7 Stakeholder Coordination: Consultant shall coordinate with Project stakeholders as needed to inform each stakeholder of the Project work and incorporate any necessary accommodations into the final submittal documents.
1.8 Provide Review/Plan Check Log (Response Matrix) summarizing comments received from various City Departments/Divisions and agencies. Response Matrix shall include, but not be limited to, commenting department/division or agency, comments, response to comments, action items, and person responsible for follow up. Consultant shall be responsible for resolving comments from each commenter and shall identify to City any comments that cannot be resolved to have final discussion and resolution. Submit Response Matrix in electronic format with each route of plan check submittal.
1.9 Conduct QC reviews in accordance with its QA Program guidelines. Consultant shall provide a copy of its QA Program guidelines and shall provide a QC report at the end of each Task. Time spent for QA-QC reviews for specific deliverables shall be budgeted and billed under each respective task requiring QA-QC review and Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 6
not as Project Management.
1.10 Invoicing and Contract Administration: Consultant administrative staff time spent preparing invoices for Services complete shall be considered as included in the overhead of the Consultants basic hourly rates and shall not be billed.
Additionally, addressing administrative issues regarding the professional Services agreement, such as preparing additional Services requests or budget modifications, shall also be considered as included in the overhead of the Consultants basic hourly rates and shall not be billed.
1.11 Payment for all responsibilities related to Project Management shall be included in the various tasks identified in Exhibit B, Schedule of Fees.
Deliverables:
1. Progress schedules in MS Project format (submitted electronically as an 11 x 17 pdf file and in native MS Project format).
2. QA Program guidelines and QC reports for each Task (in pdf file).
3. Meeting agendas, preparation materials, and meeting minutes for each Project meeting (in pdf file).
4. Monthly progress reports and invoices (in pdf file).
Task 1.0: Preliminary Engineering/Evaluation
1.1 Attend Project Kick-Off Meeting.
1.2 Visit Projects site to inspect site conditions, existing equipment, and facilities to determine the existing conditions and propose recommendations to City for the improvements. Contact all regulatory agencies that will affect the proposed works to determine applicable codes and ordinances.
1.3 Any field work that involves subsurface excavation and/or coring, Consultant is required to submit plan of work to the City for review and approval prior to proceeding.
1.4 Perform necessary evaluations of the site, equipment, facilities, and ADA pathway to identify opportunities and constraints. Prepare an evaluation report for the site noting condition of existing facilities, infrastructures, code issues, and regulatory issues. Provide upgrade or replacement recommendations according to the evaluation and report review.
1.5 Provide draft community and stakeholder engagement strategies.
1.6 Meet with City staff to obtain additional information and input as needed. Provide all necessary design services, including but not limited to landscape, civil, structural, electrical, and mechanical design according to the evaluation and recommendations, and the following design criteria:
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 7
1.6.1 Latest California Building Codes.
1.6.2 Latest Electrical Codes
1.6.3 Latest California Fire Codes.
1.6.4 Latest National Fire Protection Association (NFPA): 2019 NFPA 72.
1.6.5 Parks and Recreations Design Standards.
1.6.6 Sustainability and green infrastructure guidelines in National Recreation and Park Association (NRPA).
1.7 Provide Project estimate that includes an itemized list of bid items. The Project estimate shall be accurate and prepared based upon current construction pricing and escalated to mid construction. Consultant shall review recent bids, and contact vendors, suppliers, and contractors as necessary to develop an accurate cost estimate. The Consultant shall provide the assumptions and supporting documents used to prepare the estimate. The Project estimate shall consider the following factors:
1. Recent similar Projects bided in the Bay Area, especially in the South Bay.
2. Current economic trend.
3. When the Project will be bided.
4. When construction will occur.
5. The risks that contractors need to consider for the Project.
1.8 Develop Project schedule. Schedule shall include all needed times to complete all tasks, including Citys review times, permitting process, and construction period.
1.9 Meet with City staff to review City comments on schematic design, and gain concurrence as to how the documents will be revised as appropriate to incorporate City comments.
1.10 Plan, coordinate, schedule, attend meetings, and produce meeting minutes with action items for all meetings with the City as deemed necessary to efficiently complete this phase of the design in a timely manner.
1.11 Topographic survey and base mapping Consultant shall perform topographic survey for existing site, plans layout, and final approved improvements (from the evaluation/recommendation) for use as base layout for the Project schematic plans.
1.12 Utility mapping and coordination Consultant shall identify all existing utilities that will be impacted by the Project. Consultant is expected to coordinate with all potentially impacted utility agencies and come up with a plan to rectify each impact.
All final results of the coordination and agreements of relocation shall be included in the project specifications and plan.
1.13 Geotechnical investigation and provide report Consultant shall perform field investigations and to prepare a geotechnical report. The geotechnical report will Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 8
provide pavement design, grading requirements to be included in the specifications, R-Value, and specifications for compaction and scarifying. The scope of field investigations include:
Desktop review of geological maps and geotechnical/geologic reference data from other sources
Obtain no-cost encroachment permit from City.
Collect samples at one boring location in landscape area for geotechnical and analytical testing.
Geotechnical laboratory testing
Engineering analyses to develop design-level geotechnical recommendations and design criteria related to excavation and backfiling, and pavement design.
Preparation of a Geotechnical investigation memorandum which summarizes the subsurface exploration and laboratory testing programs, and geotechnical recommendations.
Analytical Soils testing
Review Geotracker website to evaluate any nearby sites that have documented contamination issues.
Composite one sample from one boring and delivered to laboratory for testing for Volatiles by EPA 8260, CAM 17 Metals, TPH as Diesel/Motor Oil by EPA 8015B, TPH as Gasoline by 8015, and PCBs
Incorporate results/discussion into geotechnical report
1.14 Perform soil characterization and recommend the soil off haul classification for appropriate disposal in accordance with State and Federal Laws.
1.15 Tree assessment Consultant shall perform tree inventory assessment and investigation. Consultant shall layout and provide detail specifications and construction details for trees to be preserved, removed, replaced, and installed new.
1.16 Preliminary Engineering and Cost Estimate for Solar Panels and Electrical Charge Stations - prepare a preliminary layout and an engineers estimate for the proposed work for the Citys review and approval. Electrical charge station shall be level 2, reliable, and top notch per latest technology and standards.
Task 1 Deliverables Electronic and hard copy format:
1. Evaluation report (draft and final) One (1) PDF of draft and final report and one (1) Microsoft Word file of final report.
2. Soil report
3. Topographic survey
4. Utility mapping
5. Soil Characterization Report
6. Draft schematic plans: One (1) PDF and one (1) AutoCAD file.
7. Project schedule One (1) PDF and one (1) Microsoft Project file. •
•
•
•
•
•
•
•
•
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 9
8. Budget estimate One (1) PDF and one (1) Microsoft Excel file.
9. Miscellaneous Project information (as requested).
10. Meeting minutes one (1) PDF and one (1) Microsoft Word file.
Task 2.0: Public Meetings Community, Parks and Recreation Commission, and City Council
2.1 If public outreach is necessary and the city needs to hold a community meeting, consultant shall assist with the following:
A. Work closely with City staff to develop meeting strategy and format to engage the community.
B. Develop presentation materials, exhibits, design alternatives, and questionnaires for public workshops/meetings.
C. Plan, coordinate, schedule, attend workshops/meetings, and produce meeting minutes. Plan for one (1) workshop/meeting.
D. Based on communitys input, refine, and develop final schematic plan E. Produce meeting minutes with action items.
2.2 Parks and Recreation Commission Meeting:
A. Work closely with City staff to develop meeting strategy and format.
B. Develop presentation materials, exhibits, design alternatives, and questionnaires.
C. Plan, coordinate, schedule, attend the meeting, and produce meeting minutes. Plan for one (1) workshop/meeting.
D. Based on the Parks and Recreation Commissions input, refine, and develop final schematic plan.
E. Produce meeting minutes with action items.
2.3 City Council Meeting:
F. Work closely with City staff to develop meeting strategy and format.
G. Develop presentation materials, exhibits, design alternatives, and questionnaires.
H. Plan, coordinate, schedule, attend the meeting, and produce meeting minutes. Plan for one (1) workshop/meeting.
I. Based on the City Councils input, refine, and develop final schematic plan.
J. Produce meeting minutes with action items.
Task 2 Deliverables Electronic and hard copy format:
1. Exhibits, power point presentation, alternative, & questionnaires
2. Final schematic plans
3. Miscellaneous Project information (as requested).
4. Meeting minutes
Task 3: 65% Construction Documents
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 10
Plans shall be drawn to scale, on D-size (24 X 36) sheets, at an engineering scale up to 1 = 40 maximum, conforming to Citys Design Criteria. Plans are to be drawn by AutoCAD 2023 or earlier versions, using City-provided standard AutoCAD template with background layout from Consultants topographic survey.
3.1 Prepare 65% construction documents and supporting information for the Citys review. Consultants shall follow Citys Design Criteria and plan format to prepare 65% Plans and supporting information for the Citys review. Plans with details of major design components as necessary such as: Site Plan, Existing Condition, Proposed Improvement, Traffic Control Plan, Details, and other pertinent information for the City to review and provide comments. 65% Plans shall include all existing utilities on-site and immediate surrounding offsite areas. Pertinent background information as relating to proposed improvements such as, but not be limited to, layouts, fence, gate, pedestrian pathway, property lines, site entrance/exist driveway, adjacent streets shall be shown.
Provide technical specifications.
3.2 Prepare Project estimate that includes an itemized list of bid items. The Project estimate shall be accurate and prepared based upon current construction pricing and escalated to mid-point of construction. Consultant shall review recent bids, and contact vendors, suppliers, and contractors as necessary to develop an accurate cost estimate. The Consultant shall provide the assumptions and supporting documents used to prepare the estimate. The Project estimate shall consider the following factors:
1. Recent similar Projects bid in the Bay Area, especially in the South Bay.
2. Current economic trends.
3. When the Project will be bid.
4. When construction will occur.
5. The risks that contractors need to consider for the Project.
3.3 Develop Project schedule. Schedule shall include all needed times to complete all tasks, including Citys review times, permitting process, and construction period.
3.4 Plan, coordinate, schedule, attend meetings, and produce meeting minutes with action items for all meetings with the City as deemed necessary to efficiently complete this phase of the design in a timely manner.
3.5 Conduct a quality control (QC) review of design documents (Plans, Specifications, and Engineers Cost Estimates).
3.6 CITY will circulate the submittal package to internal CITY departments for review and comments. Consultant shall be responsible for submitting the package to external stakeholders if required. Consultant shall prepare written responses to all Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 11
written comments received. All redlined drawings shall be returned with Consultants response on the redlined drawings.
3.7 Consultant shall be responsible for resolving comments from each commenter and shall identify to CITY any comments that cannot be resolved. Consultant shall conduct a 65% comments review meeting with CITY to discuss comments on the submittal package, to identify any significant design issues, and gain concurrence as to how the submittal shall be revised as appropriate to incorporate CITYs comments.
3.8 The Project plan shall clear identified all existing utilities that will be and potentially be impacted during construction.
Task 3 Deliverables Electronic and hard copy format:
1. 65% Plans One (1) PDF and one (1) AutoCAD file.
2. 65% Engineering cost estimate One (1) PDF and one (1) Microsoft Excel file.
3. Project schedule One (1) PDF and one (1) Microsoft Project file.
4. Quality control checklist for 65% PS&E submittal One (1) PDF and one (1) Microsoft Word or Excel file.
5. Miscellaneous Project information (as requested).
6. Meeting minutes One (1) PDF and one (1) Microsoft Word file.
Task 4: 95% Construction Documents
Based on Citys comments and direction on the 65% PS&E, Consultant shall revise the 65% PS&E to produce the 95% PS&E. Consultant shall:
4.1 Prepare 95% construction documents and supporting information for the Citys review and approval.
4.1.1 Construction details of proposed improvements shall be included in the 95% Plans.
4.1.2 Provide technical specifications.
4.1.3 Provide modified sections to City standard specifications to suit Project.
Modified sections include, but not be limited to, general information, summary of work, measurement and payment for bid items, permitting and agency regulatory requirements, etc.
4.2 Prepare an updated engineering cost estimate.
4.3 Prepare an updated Project schedule.
4.4 Meet with City staff, as needed, to review City comments on 95% submittal and gain concurrence as to how the documents will be revised as appropriate to incorporate City comments.
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 12
4.5 Plan, coordinate, schedule, attend meetings, and produce meeting minutes with action items for all meetings with the City as deemed necessary to efficiently complete this phase of the design in a timely manner.
4.6 Provide written response matrix to Citys comments on 65% PS&E.
4.7 Conduct a quality control (QC) review of design documents (Plans, Specifications, and Engineers Cost Estimates).
4.8 Provide required information to the Citys Project Specific Specification Book (Division 0, 1, and 2). Required information from Consultant for Citys frontend specifications shall include, but not be limited to, the followings:
a. Description of work summary only
b. Type of Contractors License required
c. Construction Duration for substantial completion and final completion d. Bid schedule without engineers estimate in excel spreadsheet e. Bid schedule with engineers estimate in excel spreadsheet f. Requirements for Contractors Statement of Qualifications (e.g. experience requirements for similar work and contract values)
g. Identification of any changes to the Citys standard specifications that are required
Task 4 Deliverables Electronic and hard copy format:
1. 95% Plans One (1) PDF and one (1) AutoCAD file.
2. 95% Specifications One (1) PDF and one (1) Microsoft Word file.
3. 95% Engineering cost estimate One (1) PDF and one (1) Microsoft Excel file.
4. Updated Project schedule One (1) PDF and one (1) Microsoft Project file.
5. Meeting minutes One (1) PDF and one (1) Microsoft Word file.
6. Quality control checklist for 95% design submittal.
7. Written response matrix One (1) PDF and one (1) Microsoft Word or Excel file.
8. Required information to the Citys Project Specific Specification Book Task 5: 100% Construction Documents
Based on Citys comments and direction on the 95% PS&E, Consultant shall revise the 95% PS&E to produce the 100% PS&E. Consultant shall:
5.1 Prepare 100% construction documents and supporting documents.
5.1.1 Phase percentage statement such as 100% Plans. Not for Construction shall be removed from the 100% Plans and each sheet of the plans set shall be stamped and signed by the Consultants Engineer of appropriate discipline.
5.1.2 Specifications shall be stamped and signed (on Document 00030 Seal) by Consultants Project Engineer.
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 13
5.2 Prepare an updated Engineering Cost Estimate with backups and justifications for unit pricing.
5.3 Prepare an updated Project Schedule.
5.4 Provide Documents for Citys PS&E approval process. Required documents are, but not be limited to, engineers estimate using the schedule of quantities format, recent similar Project bid summaries to validate engineers estimate, Consultant Peer Review Certification, Consultant Lessons Learned from other similar Projects that were applied to this Project.
5.5 100% PS&E shall be Peer reviewed and Certification of Peer Review shall be submitted with the 100% Submittal.
A statement to indicate Peer Review has been performed and name, signature, and title of the Engineer who performed it shall be added to the Plans Cover Sheet.
Certification of Peer Review: The following paragraph shall be put on the company letter head, dated, and signed by the Peer Review Engineer. The undersigned hereby certifies that a professional peer review of these plans and the required designs was conducted by me, a professional landscape architect with expertise and experience in the appropriate fields of landscaping equal to or greater than the Engineer of Record, and that appropriate corrections have been made.
5.6 Prepare and submit Special Inspection Form for the Project, if applicable.
5.7 Meet with City staffs as needed to review City comments on 100% submittal and gain concurrence as to how the documents will be revised as appropriate to incorporate City comments.
5.8 Plan, coordinate, schedule, attend meetings, and produce meeting minutes with action items for all meetings with the City as deemed necessary to efficiently complete this phase of the design in a timely manner.
5.9 Provide written response matrix to Citys comments on 95% PS&E.
5.10 Provide list of potential bidders including company name, email address, contact number, and address of business.
5.11 The City shall review the 100% Design Submittal Package (Plans, Specifications, Engineers cost estimate, and Project bid and construction schedule) to ensure that all comments and issues have been rectified. After the 100% Design Submittal Package has been deemed acceptable, City staff will then submit the 100% Design Submittal Package to the Building Division and Fire Department for review and approval.
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 14
Task 5 Deliverables Electronic and hard copy format:
1. 100% Plans One (1) PDF and one (1) AutoCAD file.
2. 100% Specifications one (1) PDF and one (1) Microsoft Word file.
3. Structural Calculations One (1) PDF.
4. Certification of Peer Review One (1) PDF.
5. 100% Engineering Cost Estimate One (1) PDF and one (1) Microsoft Excel file.
6. Updated Project Schedule One (1) PDF and one (1) Microsoft Project file.
7. Special Inspection Form One (1) PDF.
8. Quality control checklist for 100% design submittal.
9. Written response matrix One (1) PDF and one (1) Microsoft Word or Excel file Task 6: Bid Documents (P&S)
The Bid Documents shall incorporate all comments from the City including comments from the Building Division (for building permit), Fire Department (for Fire Permit, if applicable) Public Works, Sewer and Water, SVP, and any other stakeholders that are involved in the Project. Based on Citys comments and direction on the 100% PS&E, Consultant shall revise the 100% PS&E to produce the Bid Documents. Consultant shall:
6.1 Incorporate City review comments of 100% PS&E into Bid Documents.
6.2 Incorporate permit issuers comments (from Building Division and Fire Department) into P&S and coordinate with permitting departments and agencies to obtain acceptance of permit application package.
6.3 Prepare Bid Documents (P&S).
6.3.1 Bid Plans shall be wet stamped and signed by the Consultants Engineer of appropriate discipline. Plans shall be drawn to scale and plotted onto D-size sheets.
6.3.2 Bid Specifications shall be wet stamped and signed (on Document 00030 Seal) by Consultants Project Engineer.
6.3.3 Final Engineers Estimate
6.3.4 Special Inspection Form required by the Building Division
6.3.5 Any other forms that are required by the Building Division and Fire Department in order to obtain applicable permits from those teams.
6.4 Plan, coordinate, schedule, attend meetings, and produce meeting minutes with action items for all meetings with the City as deemed necessary to efficiently complete this phase of the design in a timely manner.
Task 6 Deliverables Electronic and hard copy format:
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 15
1. Bid Plans One (1) PDF of wet-signed/stamped, D-size and one (1) AutoCAD file.
2. Bid Specifications One (1) PDF of wet-signed/stamped, A-size and one (1) Word file.
3. Written response matrix One (1) PDF and one (1) Microsoft Word or Excel file.
4. Quality control checklist for bit set submittal.
5. Written response matrix One (1) PDF and one (1) Microsoft Word or Excel file.
6. Special Inspection Form
Task 7: Bid and Award Phase Assistance
Consultant shall provide assistance to the City during the bidding and award phase, answer questions from bidders, help and prepare exhibits for addenda when necessary, assist the City in evaluation of bids received, and provide a written recommendation for the award of contract, when requested.
Consultant shall:
7.1 Attend and conduct one Pre-Bid Conference/Site Visit.
7.2 Assist the City with responses to bidders inquiries through the Citys Project Manager.
7.3 Assist the City with addenda to the construction documents as needed to respond to bidders inquiries and clarify the intent of bid documents.
7.4 Assist the City in evaluating bids (if required by the City).
7.5 Within fourteen (14) days from the bid opening date, prepare and submit a conformed set of contract documents (Plans and Specifications) incorporating any and all addenda (if needed).
Task 6 Deliverables Electronic and hard copy format:
1. Written response to bidders inquiries Signed PDF.
2. Support information for addenda Signed PDF.
3. Written recommendation letter to award of contract for the Project Signed PDF.
4. Conformed Set (if needed) One (1) PDF of Plans and Specifications, one (1) AutoCAD file of Plans, and one (1) Microsoft Word file of Specifications.
Task 8: Construction Phase Assistance
Consultants responsibility to provide basic services for the construction phase under this Agreement commences with the Notice to Proceed (NTP) of the contract for construction and terminates on the date the City approves the certificate of completion of the Project. The Consultant will be supporting the City construction management team, which includes a City inspector who is working directly with the Contractor.
Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 16
8.1 Consultant will assist the City in providing administration of the contract for construction. Duties, responsibilities and limitation of authority of Consultant shall not be restricted, modified, or extended without written agreement of the City.
8.2 Consultant shall attend the Pre-construction meeting.
8.3 Consultant shall visit the site three times during construction. During these site visits, Consultant shall attend job progress meetings, pre-submittal meetings, preinstallation meeting, and other meetings as required by the City. Consultants structural, civil, and electrical sub-Consultants shall visit the site as required when work related to their discipline is in progress.
8.4 Consultant shall make construction observation visits throughout the construction phase. Consultant shall issue an observation report after each visit. Assume up to five (5) meetings.
8.5 In addition to the construction observation visits, Consultant shall review technical submittals, shop drawings, product data, product samples, and product warranties from the contractor for conformance with the specifications and drawings. The Consultants action shall be taken with such reasonable promptness so as to cause no delay in the work, while allowing sufficient time in Consultants judgment to permit adequate review. The Consultant will be allowed a maximum of seven (7) calendar days for review of submittals. Consultants review shall not constitute review of safety precautions or, unless otherwise specifically stated by Consultant, of construction means, methods, techniques, sequences or procedures.
Consultants review of specific items shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the contract documents, Consultant shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the contract document.
8.6 Consultant shall respond to Contractors Request for Information (RFI) and Request for Substitution (RFS). Interpretations and decisions of the Consultant shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. Consultant shall be allowed a maximum of seven (7) calendar days to respond to RFIs and RFSs that impact the Project schedule or a maximum of fourteen (14) calendar days to respond to RFIs and RFSs that do not impact the Project schedule.
8.7 The Consultant shall prepare the Scope of Work, including sketches, for Field Instructions issued to the Contractor. When requested by the City, Consultant shall review Change Order (CO) pricing and provide written responses for the Citys review and finalizing said COs
Task 8 Deliverables Electronic and hard copy format:
1. Signed PDFs of Reviewed Contractor Submittals, Shop Drawings, RFIs, RFSs, and Design Professional Agreement with Bellecci and Associates/Exhibit A-Scopes of Services Rev. 04-12-21 Page 17
Field Instructions.
2. Signed PDFs of COs recommendations.
3. Signed PDFs of Field reports by Consultant and sub-Consultants.
Task 9: Post-Construction Phase
9.1 When requested by the City, Consultant shall conduct reviews to assist the City to determine the date or dates of Substantial Completion and the date of Final Completion. Consultants decisions with City approval on matters relating to aesthetic effect may be final if consistent with the intent expressed in the Contract Documents.
9.2 Upon request by Contractor, in accordance with contract Specifications, for Substantial Completion and later Final Completion, Consultant shall assist City in determining if the Project is ready for the stage of completion requested by the Contractor. Consultant shall provide City with a written recommendation.
9.3 Consultant shall perform a walk-through of the Project site, review Contractor Punch List, and provide written response with status and action of items on the Punch List. Consultant shall attend final walk-through of the Project site with the City, verify Punch List completion, and provide written response with recommendation regarding Project acceptance and close-out.
9.4 Consultant shall review Contractor-supplied Operation and Maintenance manuals and Warranties to determine their completeness and compliance with Construction Contract and provide written recommendation for acceptance.
9.5 Consultant shall at completion of the Project provide City with one set of reproducible Record Drawings (RDs) on good quality bond paper that reflect the changes to the work during construction based upon marked up prints, drawings and other data furnished by the Contractor and City. Consultant shall use the original Title sheet for the RDs set. If Consultant adds additional sheets to the Plans, these shall be properly numbered, properly referenced on other affected drawings and included in the drawing index. Consultant may, at its own expense, prepare and retain a copy of each drawing for its permanent file.
9.6 Provide a complete set of the Record Drawings and all X-ref files bound, including other associated fonts, plot style files on AutoCAD, including electronic copies in PDF format. Consultant may, at its own expense, prepare and retain a copy of each drawing for its permanent file.
Task 9 Deliverables Electronic and hard copy format:
1. Substantial Completion/Final Completion recommendations and Reviewed Punch List One (1) signed PDF.
2. Record Drawings One (1) PDFs and one (1) AutoCAD files on CD/DVD.
Design Professional Agreement with Bellecci and Associates/Exhibit B-Schedule of Fees Rev. 04-12-21 Page 1
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
BELLECCI AND ASSOCIATES, INC.
FOR
BOWERS PARK PARKING LOT REHABILITATION PROJECT
EXHIBIT B
SCHEDULE OF FEES
I. GENERAL PAYMENT
The total payment to the Consultant for Basic Services, as stated in Exhibit A, shall not exceed $199,883. The amount billed to City for pre-approved Additional Services shall not exceed the sum of $29,983. In no event shall the amount billed to City by Consultant for Services under this Agreement exceed $229,866, subject to budget appropriations.
Consultant shall bill City on a monthly basis for Services provided by Consultant during the preceding month on an invoice and in a format approved by City and subject to verification and approval by City. Billing shall be proportionate to the Services performed for each task completed. The invoice shall describe the Task completed, and percentage completed by Task, and total during the invoice period.
The invoice shall also show the total to be paid for the invoice period. City will pay Consultant within thirty (30) days of Citys receipt of an approved invoice.
II. BASIC SERVICES
The total payment to Consultant for all work necessary for performing all Tasks, as stated in Exhibit A, shall be in proportion to Services rendered and on a Timeand-Material not-to-exceed basis.
The Consultant fee allocated to each Task, as shown below, shall be the Consultants full compensation for all the Consultant Services required for the Project and by this Agreement, as directed by the City, and no additional compensation shall be allowed. The total amount of all the Tasks is a not-toexceed amount.
The amount for each Task and the total amount of all the Tasks are as listed below:
Design Professional Agreement with Bellecci and Associates/Exhibit B-Schedule of Fees Rev. 04-12-21 Page 2
Description of work and task Cost for Basic
Services (except for
Solar Panels and
Electrical Vehicle
Charge Stations)
Cost for Basic
Services for Solar
Panels and
Electrical Vehicle
Charge Stations)
Task No. 1 Preliminary Engineering
and Evaluation
$49,009.00 $5,767
Task No. 2 Public Meetings
Community, Parks and Recreation
Commission, and City Council
$880.00 0
Task No. 3 65% Construction
Documents
$32,025.00 $11,000.00
Task No. 4 95% Construction
Documents Package
$31,118.00 $12,898.00
Task No. 5 100% Construction
Documents Package
$16,310.00 $7,739.00
Task No. 6 Final Bid Documents $3,758.00 $3,439.00
Task No. 7 Bid Support Assistance $4,502.00 $430.00
Task No. 8 Construction Support $17,570.00 $1,720.00
Task No. 9 Post-Construction $1,718.00 0
TOTAL COST $156,890.00 $42,993.00
In no event shall the amount billed to City by Consultant for BASIC SERVICES under this Agreement exceed one hundred ninety-nine thousand eight hundred eighty-three dollars ($199,883).
III. REIMBURSABLE EXPENSES
There are no reimbursable expenses.
IV. ADDITIONAL SERVICES
Additional Services consists of work not included in the Scope of Services outlined within this Agreement. Pre-approved Additional Services shall be billed to City at the fixed hourly rates shown below in Section V, RATE SCHEDULE, or at an agreed negotiated lump sum price. Monthly billing for Additional Services shall be consistent with the term set forth in this Agreement. Payment for any Additional Services is allowed only if written authorization is given by the City Engineer in advance of the work to be performed. Additional Services shall not exceed $29,983.
V. RATE SCHEDULE
Personnel Charges
Design Professional Agreement with Bellecci and Associates/Exhibit B-Schedule of Fees Rev. 04-12-21 Page 3
Charges for personnel engaged in professional and/or technical work are based on the actual hours directly chargeable to the Project.
The pay rates for the Project by classification are listed below:
Primary Consultant BELLECCI AND ASSOCIATES, INC.:
The billing rates will be the same in year 2023 and year 2024, as shown on the billing rate sheets. Billing rates will be extended by 5% each year per category starting January 2025
Engineering Services
Engineering Intern
Assistant Engineer I
Assistant Engineer II
Engineer I
Engineer If
Engineer Ill
Professional Engineer I
Professional Engineer ll
Professional Engineer m
Principal Engineer I
Prln<;lpal Engineer II
land Surveying Services
Safety Monitor/Flag Person
Survey Technician I
Survey Technfclan II
Survey Technician m (LSIT}
Professional land surveyor
Survey, Chief of Party
Survey, Journeyman Rodman
Survey, Apprentice I
Survey; APprentlc:e !I
Hourly Billing Rate
$90
$130
.$150
$164
$174
$190
$204
$210
$220
$240
$270
SH8
$124
$150
$174
$220
$174
$110
$72
$84
Survey, APprentlce Ill $96
Survey, Apprentice Ill $108
Drone PhotographyMdeography $175
Graphic Artist $134
Construction Services
Resident Engineer
Senior Publfc Works Inspector
Publlc Works Inspector
Public Works Inspector Assistant
Construction Manager
Project Coordinator
Admlnlstrathre
legal & Expert Services
Document Review and case Meetings
Depositions and Trial Testimony
Hourly Billing Rate
$188
$174
$154
$128
$220
$124
$100
$3S0
$425
Client authorized overtime work will be charged at 135% of the standard hourly rates.
Reimbursable expenses shall indude,butarenotlimitedtothefollowlng:
In HousePrlntlng Bond: $0.25/sf • Mylar: $5/sf
large Format Color Presentation
ColorCoples:8.Sx 11'• 1l x 17'
Other Direct Project Expenses
subcontractors
Outside Printing & Delivery Service
$2.50/sf
$1.00/ea • $1.90/ea
cost+ 10%
cost+10%
cost+ 10%
Design Professional Agreement with Bellecci and Associates/Exhibit B-Schedule of Fees Rev. 04-12-21 Page 4
Subconsultant Billing Rates:
MILLER PACIFIC ENGINEERING GROUP
a Celifomia corporation
SCHEDULE OF CHARGES
PROFESSIONAL ENGINEERING AND TESTING SERVICES
Professional and Technical Personnel Hourly Rate
Project Assistant/Word Processor .................................................................................................. $100 Engineering Technician .................................................................................................................. $130 Senior Technician ........................................................................................................................... $150 Prevailing Wage ............................................................................................................................. $170 Staff Engineer/Geologist ........................................................................................................................... $170 Project Engineer/Geologist. ............................................................................................................ $200 Senior Engineer/Geologist. ............................................................................................................. $220 Associate Engineer/Geologist ........................................................................................................ $280 Principal Engineer/Geologist .......................................................................................................... $290 A La Carte Laboratory Testing
(Will be charged at the hourly rate above unless otherwise noted in the Agreement and Proposal) Modified 4 in. Compaction Curve/Checkpoint ASTM D 1557 ................................ $350/$200 Sieve Analysis (w/ -200 wash) ASTM D 422 ........................................... $200 Minus 200 Sieve Wash ASTM D 1140 ......................................... $150 Atterberg Limits ASTM D 4318 ......................................... $300 Expansion Index ASTM D 4829 ......................................... $350 Moisture Content/Density ASTM D 2937 ........................................... $75 Unconfined Compression ASTM D 2166 ......................................... $150 Hydrometer ASTM D4829 .......................................... $250 Reporting Fee ............................................................................................................. $100 per test request Transportation Fee (for samples dropped off at Novato/Napa Office) .................................................. $50 Rush Testing ........................................................................ Add 50% to the Tota! of all Laboratory Testing Other Inside Charges
Mileage ................................................................................................................................... $0.80 per mile Vehicle (Field) ............................................................................................................................. $9 per hour Nuclear Density Gauge .............................................................................................................. $10 per test Inclinometer ................................................................................................ $160 per day/ $90 per half day Laser Level/Floor Level .............................................................................................................. $25 per day Sampling Equipment ........................................................................................... $50 per day I $30 half day Outside Services ...................................................................................................................................... Cost+ 20% Includes exploration equipment, instrumentation, in-situ monitoring, outside/specialized laboratory testing, per diem, shipping, courier/delivery services, outside reproduction, and other services and supplies not normally provided.
*NOTES:
1. Field site visits and travel time are normal hourly rates, portal to portal.
2. overtime - Weekday add $35
Overtime - Weekend/Holiday/Night add $45*
*(4• and 8-hour minimums)
3. Rates are for normal Geotechnical Engineering and Geological services. Rates for depositions and testimony are $580 per hour for Principal; $520 per hour for Associate; and $440 per hour for Senior.
All other personnel are $350 per hour. These fees are due and payable at the time of service.
Design Professional Agreement with Bellecci and Associates/Exhibit B-Schedule of Fees Rev. 04-12-21 Page 5
The billing rates will be the same in year 2023 and year 2024, as shown on the billing rate sheets. Billing rates will be extended by 5% each year per category starting January 2025
The billing rates will be the same in year 2023 and year 2024, as shown on the billing rate sheets. Billing rates will be extended by 5% each year per category starting January 2025
Pezzoni Engineering
1150 9th Street, Suite 1415
Modesto, CA 95354
(209) 554-4602
FEE SCHEDULE FOR PROFESSIONAL SERVICES
EFFECTIVE: Janua1y 1, 2023
The following fees are presently in effect for professional services available from our fim1:
CONSULTATION SERVICES:
Investigative/Expert Witness/Professional Consultation TBD* ENGINEERING SERVICES:
Principal Engineer
Project Manager
Engineer
Senior Designer
Designer
CAD/BIM Specialist
Clerical
S240.00 Per Hour
S210.00 Per Hour
$185.00 Per Hour
SI 65.00 Per Hour
$135.00 Per Hour
SI 05.00 Per Hour
S85.00 Per Hour
Design Professional Agreement with Bellecci and Associates/Exhibit B-Schedule of Fees Rev. 04-12-21 Page 6
The billing rates will be the same in year 2023 and year 2024, as shown on the billing rate sheets. Billing rates will be extended by 5% each year per category starting January 2025
ABORlCULTUR£ and L"RBA.'\" FORESTRY
Fees for Services - 2023
Consulting Arborist
CAD
Administrative Assistant
$200.00
$150.00
$50.00
WOODREEVE
CONSULTING
Design Professional Agreement with Bellecci and Associates/Exhibit C-Insurance Requirements Page 1 Rev. 09-28-18
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
BELLECCI AND ASSOCIATES, INC.
FOR
BOWERS PARK PARKING LOT REHABILITATION PROJECT
EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Contractors indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Contractor shall provide and maintain in full force and effect during the period of performance of the Agreement and for twentyfour (24) months following acceptance by the City, at its sole cost and expense, the following insurance policies from insurance companies authorized to do business in the State of California. These policies shall be primary insurance as to the City of Santa Clara so that any other coverage held by the City shall not contribute to any loss under Contractors insurance. The minimum coverages, provisions and endorsements are as follows:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office (ISO) form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
2. Exact structure and layering of the coverage shall be left to the discretion of Contractor; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Contractor to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a pay on behalf basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and Design Professional Agreement with Bellecci and Associates/Exhibit C-Insurance Requirements Page 2 Rev. 09-28-18
c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned (if any), non-owned and hired autos.
In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Contractor and/or its subcontractors involved in such activities shall provide coverage with a limit of one million dollars ($1,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or ISO endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS COMPENSATION
1. Workers Compensation Insurance Policy as required by statute and employers liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Contractor included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Contractor or any subcontractor under any Workers Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. PROFESSIONAL LIABILITY
Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against negligent acts, errors or omissions of the Contractor. Covered services as designated in the policy must specifically include work performed under this agreement. Coverage shall be in an amount of not less than one million dollars ($1,000,000) per claim or Design Professional Agreement with Bellecci and Associates/Exhibit C-Insurance Requirements Page 3 Rev. 09-28-18
two million dollars ($2,000,000) aggregate. Any coverage containing a deductible or self-retention must first be approved in writing by the City Attorneys Office.
E. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Contractors work for City, using ISO Endorsement CG 20 10 11 85, or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
2. Primary and non-contributing. Each insurance policy provided by Contractor shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Contractors insurance.
3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of nonrenewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation.
In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non-renewal.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through E of this Exhibit C, above.
Design Professional Agreement with Bellecci and Associates/Exhibit C-Insurance Requirements Page 4 Rev. 09-28-18
F. ADDITIONAL INSURANCE RELATED PROVISIONS
Contractor and City agree as follows:
1. Contractor agrees to ensure that subcontractors, and any other party involved with the Services, who is brought onto or involved in the performance of the Services by Contractor, provide the same minimum insurance coverage required of Contractor, except as with respect to limits.
Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Contractor agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the Project will be submitted to City for review.
2. Contractor agrees to be responsible for ensuring that no contract used by any party involved in any way with the Project reserves the right to charge City or Contractor for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Contractor in the event of material noncompliance with the insurance requirements set forth in this Agreement.
G. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Contractor, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Contractor shall file with the City all certificates and endorsements for the required insurance policies for Citys approval as to adequacy of the insurance protection.
H. EVIDENCE OF COMPLIANCE
Contractor or its insurance broker shall provide the required proof of insurance compliance, consisting of ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement. Upon Citys request, Contractor shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all Design Professional Agreement with Bellecci and Associates/Exhibit C-Insurance Requirements Page 5 Rev. 09-28-18
certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara Public Works Department
P.O. Box 100085 S2 or 1 Ebix Way
Duluth, GA 30096 Johns Creek, GA 30097
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
I. QUALIFYING INSURERS
All of the insurance companies providing insurance for Contractor shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
Design Professional Agreement with Bellecci and Associates/Exhibit D-Insurance Requirements Page 1 Rev. 09-28-18
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
BELLECCI AND ASSOCIATES, INC.
FOR
BOWERS PARK PARKING LOT REHABILITATION PROJECT
EXHIBIT D
LABOR COMPLIANCE ADDENDUM
This Agreement is subject to the requirements of California Labor Code section 1720 et seq. requiring the payment of prevailing wages, the training of apprentices, and compliance with other applicable requirements. If applicable to the Services, Consultant or its subconsultant(s), as applicable, shall comply with the following requirements.
A. Prevailing Wage Requirements
1. Consultant shall be obligated to pay not less than the General Prevailing Wage Rate, which can be found at www.dir.ca.gov and are on file with the City Clerks office, which shall be available to any interested party upon request. Consultant is also required to have a copy of the applicable wage determination posted and/or available at each job site.
2. Specifically, Consultants are reminded of the need for compliance with Labor Code Section 1774-1775 (the payment of prevailing wages and documentation of such), Section 1776 (the keeping and submission of accurate certified payrolls) and 1777.5 in the employment of apprentices on public works Projects. Further, overtime must be paid for work in excess of 8 hours per day or 40 hours per week pursuant to Labor Code Section 1811- 1813.
3. Special prevailing wage rates generally apply to work performed on weekends, holidays and for certain shift work. Depending on the location of the Project and the amount of travel incurred by workers on the Project, certain travel and subsistence payments may also be required. Consultants and subconsultants are on notice that information about such special rates, holidays, premium pay, shift work and travel and subsistence requirements can be found at www.dir.ca.gov .
4. Only bona fide apprentices actively enrolled in a California Division of Apprenticeship Standards approved program may be employed on the Project as an apprentice and receive the applicable apprenticeship prevailing wage rates. Apprentices who are not properly supervised and employed in the appropriate ratio shall be paid the full journeyman wages for the classification of work performed.
Design Professional Agreement with Bellecci and Associates/Exhibit D-Insurance Requirements Page 2 Rev. 09-28-18
5. As a condition to receiving progress payments, final payment and payment of retention on any and all Projects on which the payment of prevailing wages is required, Consultant agrees to present to City, along with its request for payment, all applicable and necessary certified payrolls (for itself and all applicable subconsultants) for the time period covering such payment request. The term certified payroll shall include all required documentation to comply with the mandates set forth in Labor Code Section 1720 et seq, as well as any additional documentation requested by the City or its designee including, but not limited to: certified payroll, fringe benefit statements and backup documentation such as monthly benefit statements, employee timecards, copies of wage statements and cancelled checks, proof of training contributions (CAC2 if applicable), and apprenticeship forms such as DAS-140 and DAS-142.
6. In addition to submitting the certified payrolls and related documentation to City, Consultant and all subconsultants shall be required to submit certified payroll and related documents electronically to the California Department of Industrial Relations. Failure to submit payrolls to the DIR when mandated by the Project parameters shall also result in the withholding of progress, retention and/or final payment.
7. No Consultant or subconsultant may be listed on a bid proposal for a public works Project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
8. No Consultant or subconsultant may be awarded a contract for public work on a public works Project, unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5. Consultants MUST be a registered public works Consultant with the DIR AT THE TIME OF BID. Where the prime contract is less than $15,000 for maintenance work or less than $25,000 for construction alternation, demolition or repair work, registration is not required.
9. All Consultants/subconsultants and related construction Services subject to prevailing wage, including but not limited to: trucking, surveying and inspection work must be registered with the Department of Industrial Relations as a public works Consultant. Those you fail to register and maintain their status as a public works Consultant shall not be permitted to perform work on the Project.
10. Should any Consultant or subconsultants not be a registered public works Consultant and perform work on the Project, Consultant agrees to fully indemnify the City for any fines assessed by the California Department of Industrial Relations against the City for such violation, including all staff costs and attorneys fee relating to such fine.
Design Professional Agreement with Bellecci and Associates/Exhibit D-Insurance Requirements Page 3 Rev. 09-28-18
11. This Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
B. Audit Rights
All records or documents required to be kept pursuant to this Agreement to verify compliance with this Addendum shall be made available for audit at no cost to City, at any time during regular business hours, upon written request by the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Copies of such records or documents shall be provided to City for audit at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records or documents shall be made available at Consultants address indicated for receipt of notices in this Agreement.
C. Enforcement
1. City shall withhold any portion of a payment; including the entire payment amount, until certified payroll forms and related documentation are properly submitted, reviewed and found to be in full compliance. In the event that certified payroll forms do not comply with the requirements of Labor Code Section 1720 et seq., City may continue to hold sufficient funds to cover estimated wages and penalties under the Agreement.
2. Based on State funding sources, this Project may be subject to special labor compliance requirements of Proposition 84.
3. The City is not obligated to make any payment due to Consultant until Consultant has performed all of its obligations under these provisions. This provision means that City can withhold all or part of a payment to Consultant until all required documentation is submitted. Any payment by the City despite Consultants failure to fully perform its obligations under these provisions shall not be deemed to be a waiver of any other term or condition contained in this Agreement or a waiver of the right to withhold payment for any subsequent breach of this Addendum.
City or the California Department of Industrial Relations may impose penalties upon Consultants and subconsultants for failure to comply with prevailing wage requirements.
These penalties are up to $200 per day per worker for each wage violation identified; $100 per day per worker for failure to provide the required paperwork and documentation requested within a 10-day window; and $25 per day per worker for any overtime violation.
Design Professional Agreement with Bellecci and Associates/Exhibit E Milestone Schedule Page 1 Rev. 04-12-21
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
BELLECCI AND ASSOCIATES, INC.
FOR
BOWERS PARK PARKING LOT REHABILITATION PROJECT
EXHIBIT E
MILESTONE SCHEDULE
Description of work and task Duration
Task No. 1 Preliminary Engineering and
Evaluation 6 weeks
Task No. 2 Public Meetings Community,
Parks and Recreation Commission, and City
Council
7 days to prepare presentations and
other materials for each meeting
Task No. 3 65% Construction Documents 6 weeks
Task No. 4 95% Construction Documents
Package
4 weeks
Task No. 5 100% Construction Documents
Package
2 weeks
Task No. 6 Final Bid Documents 2 weeks
Task No. 7 Bid Support Assistance 2 days response time for clarifications and questions
Task No. 8 Construction Support 7 days response time
Task No. 9 Post-Construction 2 weeks to prepare record drawings
Design Professional Agreement with Bellecci and Associates/Exhibit F- Project Management Documentation Software
AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
BELLECCI AND ASSOCIATES, INC.
FOR
BOWERS PARK PARKING LOT REHABILITATION PROJECT
EXHIBIT F
PROJECT MANAGEMENT DOCUMENTATION SOFTWARE
1.0 GENERAL
This section is intended to describe the use of e-Builder EnterpriseTM (e-Builder) a web-base Project management software, as the median for Project documentation and reporting. All costs associated with the use of the software is inclusive of the Project Exhibit B Schedule of Fees.
2.0 e-BUILDER Project MANAGEMENT SOFTWARE PROGRAM
The City of Santa Clara is currently using e-Builder Project Management for all related Project management tasks. Consultant is required to comply with all requirements specified in this Exhibit F Project MANAGEMENT DOCUMENTATON SOFTWARE.
3.0 REQUIREMENTS
A. General Requirements:
1. Consultant and SubConsultants shall provide at a minimum, the following to its staff:
a) Computer: Minimum Intel Pentium® 4 Processor 2.4 GHz or equivalent processor with 512MB of RAM; recommended Centrino Duo® Processors 1.6 GHz or equivalent with 2GB of RAM, or higher; b) Computer Operation System: Windows XP or later and OS X v10.8 or later;
c) Web Browser: Microsoft Internet Explorer 10.0 or later, Google Chrome v29.0.1 or later, Mozilla Firefox v35.0.1 or later, Safari v6.0.4 or later, Safari for iOS mobile v6.1 or later. Other browsers such as Microsoft Edge, Google Chrome for iOS, and Google Chrome for Android are available on e-Builder; however, but some features might not work as expected;
d) Work and Spreadsheet Processors: Microsoft Office Word, Excel and Outlook;
Design Professional Agreement with Bellecci and Associates/Exhibit F- Project Management Documentation Software
e) Scheduling Software: Microsoft Project or Primavera; f) Internet Service Provider: A reliable ISP in the area of the Project; g) Connection Speed/Minimum Bandwidth: DSL, ADSL or T1 Line for transferring a minimum of 3 Mbps Downstream and 512 Kbps Upstream.
2. Consultant and SubConsultants shall provide its management personnel assigned to this Project with access to personal computers and the Internet on a daily basis
B. Project Web Requirements:
1. This Project utilizes a web-based Project management tool, e-Builder. This web-based application is a collaboration tool, which will allow all Project team members continuous access through the Internet to important Project data as well as up to the minute decision and approval status information.
2. Consultant and SubConsultants shall conduct Project controls, outlined by the City, utilizing e-Builder. This designated web-based application will be provided by the City at no costs to the Consultant and the SubConsultants.
No additional software will be required. Furthermore, the City Project Manager will assist Consultant in providing training of SubConsultants personnel.
3. Consultant and SubConsultants shall have the responsibility for visiting the Project web site on a regular basis, and as necessary to be kept fully appraised of Project developments, for correspondence, assigned tasks and other matters that transpire on the site. These may include, but are not limited to: Contracts, Contract Exhibits, Contract Amendments, Drawing Issuances, Addenda, Bulletins, Permits, Insurance & Bonds, Safety Program Procedures, Safety Notices, Accident Reports, Personnel Injury Reports, Schedules, Site Logistics, Progress Reports, Daily Logs, NonConformance Notices, Quality Control Notices, Punch Lists, Meeting Minutes, Requests for Information, Submittal Packages, Substitution Requests, Monthly Payment Request Applications, Supplemental Instructions, Construction Change Directives, Potential Change Orders, Change Order Requests, Change Orders, etc. All supporting data including, but not limited to, shop drawings, product data sheets, manufacturer data sheets and instructions, method statements, safety MSDS sheets, Substitution Requests, Submittals, etc. and the like will be submitted in digital format via e-Builder.
C. Electronic File Requirements:
1. In addition to the standard closeout submittal requirements detailed Design Professional Agreement with Bellecci and Associates/Exhibit F- Project Management Documentation Software
elsewhere in the Contract Documents, the Consultant and SubConsultants shall also submit all closeout documents including all As-Built Drawings, catalog cuts, and Owners Operation and Maintenance manuals in digital format. All documents (including as-built drawings) shall be converted or scanned into the Portable Document Format (PDF) file and uploaded to eBuilder.
4.0 IMPLEMENTATION REQUIREMENTS
A. e-Builder is a comprehensive Project and Program Management system that will be implemented for managing documents, communications, and costs between the Contractor, Sub-contractors, Consultant, SubConsultants, and Owner. e-Builder includes extensive reporting capabilities to facilitate detailed.
B. Project reporting in a web-based environment that is accessible to all parties and easy to use.
C. Central Document Vault: e-Builder system includes a central database that maintains all Project information and manages Project communications amongst team members.
D. Communication/Correspondence: e-Builder provides electronic routable communication forms that provide historical tracking, documentation, and increased accountability of Project members.
E. Project Calendars: Meetings will be scheduled and maintained centrally on e-Builder by the City.
F. Reporting: All of the Project and program data including documents, communications, and costs are accessible through integrated online reports. These reporting tools are completely configurable by each user. All reports can be exported to Excel for added flexibility.
Design Professional Agreement with Bellecci and Associates/Exhibit F- Project Management Documentation Software
5.0 LICENSING REQUIREMENT
A. User Licenses: Each user license is for access to the site consisting of unlimited data storage. Users can be direct employees of the Consultant as well as its SubConsultants and/or Suppliers.
B. Each user license includes full access to e-Builder, including all of the documents and reports mentioned above. Furthermore, each user license provides the e-Builder software as a service (SaS) including:
1. All hosting, operation, maintenance, and data backup of the eBuilder software and documents which are maintained in state-ofthe-art data centers located throughout the United States.
2. Quarterly e-Builder software enhancements.
3. Unlimited phone, email, and web-based support 24-hours.
C. e-Builder user licenses shall be obtained by the City, Owner Manager, and QA/QC Agencies for which the Design Consultant is not responsible.
Real trme, updated
chedu,1e lnformatlo'n
Automated communlcatiom
( e.g,, e-mail notifications of changes
In schedule, doci.Jments. wotkftOIN)
Progrilm Management
Schedules
Cost
Workflow (transmittals, submltta ls,
RF Is, chan-ge orders)
Real lime, updated
~ostlbuctget nformatlon
Auioi:nated norificatians
of project d1an9es (schedule,
workffow, corr, rnilestones, Qther)
Exe<:utiv•e-5
Comultants, An::hitects,
Eng1Mel'$.. Contraet<ir$ Facilities Management
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-37 Agenda Date: 5/7/2024
REPORT TO COUNCIL
SUBJECT
Action on an Agreement for Services with HSI Workplace Compliance Solutions, Inc. to Provide Managed Training Services for Silicon Valley Power and a Related End User Licensing Agreement with Focus Learning Corporation and HSI for On-Line Training Services
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
Silicon Valley Power (SVP) operates as a Distribution Provider, Generation Owner, Generation Operator, Transmission Owner, and Transmission System Operator. In these roles, SVP must comply with a number of requirements, standards, and regulations, including the North American Electric Reliability Corporation (NERC) and Western Electricity Coordinating Council (WECC) Reliability Standards.
SVP requires an experienced consulting and training firm to provide on-going Electric Utility Operational training for personnel within the SVP Operations Division including Control, Substation, Generation, Transmission & Distribution, and System Support. These services are necessary to maintain and develop SVP staff qualifications relating to SVP Bulk Electric System (BES).
Additionally, SVP requires a firm with the capacity and expertise to provide system operator training in compliance with NERC and WECC regulations.
DISCUSSION
Pursuant to City Code Section 2.105.140(c), a formal Request for Proposals (RFP) was conducted, with the award recommendation based on “best value.”
The RFP for Managed Training Services was published on the City’s e-procurement system. The proposed scope of work included: training design and development using a variety of methods (such as classroom, on-line, on-demand, and simulations), training to support NERC and WECC requirements, and as software to support training management. Two proposals were received by the June 30, 2023, closing date, from the following firms:
· HSI Workplace Compliance Solutions, Inc (HSI)
· Quality Training Systems
The proposals were independently evaluated by a three-member evaluation panel against the criteria published in the RFP. HSI was selected as the overall best value based on cost and experience. In particular, HSI demonstrated a significant depth and strength, including subject matter expertise in system operations, transmission, distribution, substations, and generation with a focus on City of Santa Clara Page 1 of 3 Printed on 5/3/2024
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24-37 Agenda Date: 5/7/2024
compliance.
The proposed agreement with HSI has a maximum compensation of $1,500,000 over a five-year term starting on May 1, 2024, and ending on April 30, 2029, with options to extend the term for up to two additional years through April 30, 2031. The agreement includes daily rates for instructor-led training, hourly rates for advisory services, and custom training development services. In addition, various online courses will be available either through prepaid subscription services or individually at a per user cost. Rates for labor and materials are established in the agreements and subject to reasonable increases subject to approval by the City and must be substantiated by the contractor to the satisfaction of the City. Along with the agreement, the City will also enter into an End User Licensing Agreement, which is an Exhibit to the Agreement. This license agreement is required to allow HSI to provide online services.
Furthermore, staff requests authorization for the City Manager to negotiate and execute amendments to this agreement to (1) add or delete services consistent with the scope of services; (b) adjust rates based on market conditions with justification from HSI; (c) exercise options to extend the term for up to two years through April 30, 2031, and (d) increase the maximum compensation by up to $1,000,000 for a total maximum compensation of $2,500,000 over a seven year period, subject to the appropriation of funds and the review and approval as to form by the City Attorney. Approval of these recommendations will provide SVP with flexibility to respond to additional training needs such as in the event of significant changes in regulations or staffing changes requiring additional training services.
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)(5) of Title 14 of the California Code of Regulations in that they are administrative activities that will not result in direct or indirect physical changes in the environment.
FISCAL IMPACT
The maximum compensation under the agreement is $1,500,000 over the five-year term. There is also a recommendation to authorize the City Manager to negotiate amendments to the agreement that could increase the maximum compensation to $2,500,000. The costs associated with this agreement are budgeted as part of SVP’s operating budget. Funding for the first two years of the agreement is included in the Adopted FY 2023/24 and FY 2024/25 Operating Budget in the Electric Utility Operating Fund.
Funds required for this agreement in future years will be included in proposed budgets for corresponding years.
COORDINATION
This report has been coordinated with the Finance Department and City Attorney’s Office.
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 City of Santa Clara Page 2 of 3 Printed on 5/3/2024
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24-37 Agenda Date: 5/7/2024
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 execute an Agreement for Services and an End-User Licensing Agreement with HSI Workplace Compliance Solutions, Inc. and Focus Learning Corporation (collectively, “Agreement”) to provide managed training services for Silicon Valley Power with a maximum compensation not to exceed $1,500,000 over a five-year term to be funded by the Electric Utility Funds, subject to appropriation of funds for future years; and
2. Authorize the City Manager to take any actions as necessary to implement and administer the Agreement and negotiate and execute amendments to the Agreement to (a) add or delete services consistent with their scope of services; (b) adjust rates based on market conditions, (c) extend the term up to two additional years, (d) make other no cost or term extension amendments; and (e) increase the maximum compensation by up to $1,000,000 for a total maximum compensation of $2,500,000 over a seven year period, subject to the appropriation of funds and the review and approval as to form by the City Attorney.
Reviewed by: Manuel Pineda, Chief Electric Utility Officer Approved by: Jovan D. Grogan, City Manager
ATTACHMENTS
1. Proposed Agreement with HSI Workplace Compliance Solutions, Inc.
2. End-User Licensing Agreement (attached as Exhibit D to the Agreement) City of Santa Clara Page 3 of 3 Printed on 5/3/2024
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EXHIBIT D
FOCUS LEARNING CORPORATION
END-USER LICENSING AGREEMENT
This End-User Licensing Agreement (“End User Agreement”) is made this ________ day of ___________________, 2024 between Focus Learning Corporation (Focus), a California corporation, herein referred to as "Licensor",HSI Workplace Compliance Solutions, Inc, a Washington company herein referred to as “HSI” or “Service Agent” (as defined in section 1.14 below), and the City of Santa Clara, herein referred to as "Licensee" as part of the SAT Advantage program (as defined in section 1.13 below).
ARTICLE 1. DEFINITIONS
1.01. “VISION” – a short term for the software, data and database product called the “VISION Learning and Performance Support System” which is a subject of this End User Agreement. It consists of a set of Modules and a Database Schema. VISION requires an appropriate license to Oracle database software or Microsoft SQL (referred to herein as the database) in order to operate, neither of which are included in VISION.
1.02. “Module” – an interrelated component of VISION. Each module operates with one or more other related modules to perform a prescribed set of functions.
1.03. “Database Schema” – an interrelated component of VISION defining the organization of data in the database including the specification of the types of data that may enter the database including the tables, fields, relationships, views, indexes, packages, procedures, functions, queues, triggers, types, sequences, materialized views, synonyms, database links, directories, XML schemas, clusters, snapshots, and other elements.
1.04. “VISION Database” – data organized in accordance with the Database Schema by the database.
1.05. “Developer Module” – an instructional systems development (ISD/SAT) process management platform. The Developer Module is used by instructional designers, course developers, instructors and others to carry out the analysis, design and development activities that underlie a performance-based approach to training and qualification. Such activities are core to the Systematic Approach to Training (SAT) process and standards prescribed by INPO (Institute of Nuclear Power Operators), NERC (North American Electric Reliablity Corporation), the Federal Aviation Administration (FAA), the Pipeline and Hazardous Materials Safety Administration (PHMSA) and others where training design integrity is critical for safe and efficient operations.
1.06. "Learning Station Module" – The Learning Station Module is a web application included as a Module of VISION. The Learning Station generates and delivers lessons, exams and qualification cards and other online learning materials, which are compiled directly from VISION, and tracks learner training status. The Developer Module is required in order to use the Learning Station Module.
1880 Santa Barbara Street, Suite 120
San Luis Obispo, CA 93401
(805) 543-4895
Fax (805) 543-4897
1.07. "Source Code" - the set of program instructions that software engineers or programmers produce in order to dictate how the Developer Module and Learning Station Module look, interact with user commands, and process information.
1.08. "Object Code" - the program code which is installed on a server or on one or more workstations enabling users to operate the Developer Module and the Learning Station Module.
1.09. "Server" - a computer and associated software that allows multiple users to access and use VISION through a network and an internet/intranet.
1.10. "Manual" - a set of written documentation designed to explain how to operate the Developer Module and the Learning Station Module and to create customized exams, reports, and other materials. “Manual” also refers to VISION’s embedded instructional advisor, which helps users perform instructional design functions and make key instructional decisions. Manuals may be in hard copy form or reside only in the Developer Module and the Learning Station Module and be printable by a user.
1.11. "Hardware" - Computers with Microsoft Windows operating system which act as a server for VISION. The hardware shall include TCP/IP and Internet Explorer for Client Browsers.
1.12. “Hosted” – refers to the approach wherein the installation, use and maintenance of the program is done through a server outside the Licensee firewall and provided by Licensor. A hosted solution is one where the Licensor provides the server, installs and services the software and provides a means for Licensee users to connect from Licensee location.
1.13. “SAT Advantage” – refers to an HSI program wherein HSI provides SAT services to electric and gas utilities who store their SAT program materials in a VISION Database.
1.14. “Service Agent” – refers to HSI, who will perform the following roles for the Licensor and the Licensee associated with the SAT Advantage program. Service Agent does not warrant or have responsibility for the VISION application. Service Agent will perform the following:
1.14.01 Annual invoicing for Licensee’s use of SAT Advantage and the VISION application in accordance with the payment terms of the separate Agreement for Services Between the City of Santa Clara and HSI Workplace Compliance Solutions, Inc. (“Services Agreement”). Upon Licensee’s payment of any applicable license fees set forth in the Services Agreement, Service Agent will make payment to Licensor for the Licensee’s use of VISION during the course of the Services Agreement. If Service Agent fails to make payment as required in the preceding sentence, Service Agent shall be in breach of the Services Agreement.
1.14.02 Act as the customer service liaison between the Licensee and Licensor to help facilitate Licensee’s use of VISION in connection with the SAT Advantage program.
Licensee will inform Service Agent of issues with the ability to use VISION or VISION Learning Station and Service Agent will work with Licensee and Licensor to resolve the issues.
1.14.03 Coordinate and track any issues received from Licensee that may require the Licensor to make modification to the VISION or VISION Learning Station applications, provided that only the Licensor can consent to the making of any modifications to VISION. This may include tracking suggestions for improvements and enhancements to the applications to support the Licensee.
ARTICLE 2. LICENSE GRANT AND LIMITATIONS
2.01. Licensor hereby grants, and Licensee hereby accepts, a non-exclusive license to use the Developer Module and Learning Station Module, subject to the conditions specified herein. Licensor will provide Licensee with the Developer Module and Learning Station Module as a Hosted system. Source Code will not be provided. This license is for a period beginning the date of execution and ending when terminated pursuant to the terms in Section 5 of this End User Agreement.
2.02. The Database Schema is intellectual property of Licensor and Licensor hereby grants, and Licensee hereby accepts, a non-exclusive license to use the Database Schema solely to interoperate with the Developer Module and Learning Station Module, as necessary to enjoy the license rights granted hereunder. Connection to the VISION Database may only be established by the Developer Module and Learning Station Module, as necessary to enjoy the license rights granted hereunder. The Database Schema may not be modified by the Licensee.
2.03. Licensee shall use the Developer Module from a server hosted and maintained by Licensor with one (1) named user, provided that all users are associated with the Licensee.
2.03.01. Licensee’s use will be limited to one Licensee-specific project created by Service Agent for Licensee within the VISION Database.
2.03.02. Licensee understands and agrees that personnel from Service Agent and Licensor will have access to Licensee’s training material in the VISION Database to administer the SAT Advantage program and maintain the VISION software.
2.04. Licensee may also use the Learning Station module(s) subject to the following.
2.04.01. Licensee use of the VISION Learning Station Module shall be for one Licensee Site Administrator and 20 named licenses initially. If the Licensee purchases additional Site Administrator and/or named licenses from the Service Agent, this total will be communicated to the Licensor. The Licensor will ultimately bill the Service Agent for any additional licenses pursuant to Section 1.14.01. The addition of Licensee Site Administrator and named licenses will be reflected in the Services Agreement and will not require an amendment to this End User Agreement.
2.04.02 Licensee use of the VISION Learning Station Module shall be limited to Licensee’s- organization.
2.05. Licensee shall not use or permit the use of the Developer Module, or Learning Station Module to create, manipulate or maintain programs for any other purpose other than as described in sections 2.03 and 2.04.
2.06. Licensee may use the Manuals, including the on-line help and "advisors", for Licensee's internal use only. All copies of the Developer Module and Learning Station Module, and the Manual(s) shall contain Licensor's proprietary notices to the extent the same are included in the Developer Module and Learning Station Module originally delivered to Licensee.
ARTICLE 3. PROPERTY RIGHTS
3.01. Licensee agrees and acknowledges that Licensor is and shall remain the sole owner of the Developer Module and Learning Station Module and shall be the owner of all copies thereof made by Licensee.
3.02. Licensee agrees not to sell, rent, license, sub-license, distribute or transfer the Developer Module and Learning Station Module or any part thereof to any other person or party.
Licensee agrees not to modify the Developer Module and Learning Station Module. Licensee agrees to use all reasonable care and diligence in preventing any part of the Developer Module and Learning Station Module, including but not limited to the Object Code, from being (a) copied into any medium for use anywhere other than the above described site, or (b) used in any way by personnel not authorized under the terms hereof. Disclosure of the fact that Licensee is using the Developer Module and Learning Station Module shall not be a violation of this provision.
3.03. Licensee agrees to keep VISION under access and use restrictions designed to prevent access by unauthorized persons.
3.04. Licensee agrees not to remove, deface or destroy any copyright, patent notice, trademark, service mark or other proprietary markings or confidential legends placed on or within the program software or documentation.
ARTICLE 4. WARRANTY, WARRANTY SERVICE AND LIMITATION OF LIABILITY
4.01. Licensor shall verify and correct errors in the Developer Module and Learning Station Module, without charge for labor, for a period of ninety (90) days after acceptance of the Developer Module and Learning Station Module by Licensee. The Developer Module and Learning Station Module shall be deemed to be accepted by Licensee upon completion of installation and on-site training as set forth above. If Licensee notifies Licensor of any program errors or if Licensor believes that program errors may exist, Licensor will correct such errors within twenty (20) days after notification. If an error cannot be corrected within said twenty (20) day period, Licensor will provide a minimum of five (5) man-hours per day to correcting such program errors until the program error is corrected. Error corrections will be in machine readable form which can correct the program error immediately. If the error is not in the Developer Module and Learning Station Module, Licensor may quote Licensee for any labor costs in correction of the error. Any further program maintenance shall be the subject of a separate maintenance agreement or purchase order issued by the City. Licensee agrees that Licensee's sole and exclusive remedy for warranty claims shall be limited to this corrective action.
4.02. Licensee agrees that Licensor's sole liability to Licensee for any errors in the Developer Module and Learning Station Module shall be limited to damage to the VISION Database produced as a result of the use of the Developer Module and Learning Station Module with the VISION Database, and Licensor's liability shall further be limited to a maximum of three (3) full working days (i.e., eight (8) hours) of data entry services at Licensor’s sole cost and expense to the extent necessary to restore the VISION Database to a working condition.
4.03. Licensor, at its own expense, shall defend Licensee against any claim that the Developer Module and Learning Station Module infringe or misappropriates any patent, copyright, trade secret or other proprietary right enforceable in the United States, and shall indemnify and hold harmless Licensee from and against any loss, liability, damages, cost, and expense (including reasonable attorney fees) incurred by Licensee as a result thereof.
4.04. Licensor warrants and represents that it has good title to the Developer Module and Learning Station Module and the right to license its use to Licensee free of any proprietary rights of any other party.
4.05 Licensor warrants that the Developer Module and Learning Station Module do not and shall not contain any lock, clock, timer, counter, copy protection feature, replication device or defect ("virus" or "worm" as such terms are commonly used in the computer industry), CPU serial number reference, or other device which: (i) might lock, disable or erase the software; (ii) prevent Licensee from fully using the Developer Module and Learning Station Module in accordance with this End User Agreement; or (iii) require action or intervention by Licensor or any other person or entity to allow Licensee to use the Developer Module and Learning Station Module on the hosted system. In no event shall Licensor insert, activate or operate, nor attempt to insert, activate or operate, any such device.
4.06 THE EXPRESS WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Under no circumstances shall either party be liable to the other, or any other person or entity, for indirect, special, incidental or consequential damages, loss of goodwill or business profits even if they have been notified of the possibility of such damages.
ARTICLE 5. TERMINATION
5.01. Licensor may terminate this End User Agreement in the event of a material breach by Licensee of Licensee’s payment or nondisclosure obligations under this End User Agreement.
5.02. Licensee may terminate this End User Agreement by giving written notice thereof to Licensor. Licensor shall allow City the ability to cancel and not renew the SAT Advantage tool service by providing written notice no less than 30 days prior to the annual billing date.
5.03. Upon termination of this End User Agreement for any reason, Licensee shall immediately return all copies of the Developer Module and Learning Station Module to Licensor and certify under penalty of perjury that all copies have been returned. Upon termination of this End User Agreement, Licensor's obligations hereunder shall terminate.
5.04 This End User Agreement shall terminate upon the termination of the Services Agreement.
ARTICLE 6. MISCELLANEOUS
6.01. Should any litigation or other proceeding be commenced between the parties to this license, the party prevailing in such litigation or proceeding shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for its attorney's fees in such litigation or proceeding.
6.02. Any notice required or permitted by this End User Agreement to be given to either party shall be deemed to have been given if in writing and delivered personally or mailed by firstclass registered or certified mail, postage prepaid and addressed to the party at the following addresses:
Licensee: Licensor:
The City of Santa Clara, California, acting by
and through Silicon Valley Power (SVP)
Attn: City Manager
1500 Warburton Ave
Santa Clara, CA 95050
[email protected] and
[email protected]
Focus Learning Corporation
Attn: Jay Steele
P.O. Box 1771
1880 Santa Barbara
San Luis Obispo, CA 93401
And to HSI:
Health and Safety Institute
Attn: Mark Striefel or Scott Jensen
6136 Frisco Square Blvd Suite 285
Frisco, TX 75034
6.03 No Assignment. Subject to the following exceptions and provisions, neither party shall assign, delegate, sell, sublicense, or otherwise transfer its rights or obligations (by contract, operation of law, or otherwise) under this End User Agreement without the prior written consent of the other party.
6.04 Change in Ownership. Either party may transfer, assign and delegate all of its rights and obligations under this End User Agreement including all associated software license and maintenance rights and documentation, without the other party's consent and without payment of additional fees or charge, to:
(i) a purchaser of all or substantially all of the assigning party's voting stock or capital assets;
(ii) an entity with which the assigning party consolidates or merges; (iii) any wholly-owned subsidiary of the assigning party; or (iv) any new entity that acquires one or more business units or divisions or facilities of the assigning party, including all rights and obligations under this End User Agreement, if such purchaser, entity or subsidiary agrees in writing to be bound by these terms and conditions.
6.04. Licensor and Licensee agree that no failure to exercise, and no delay in exercising any right, power or privilege hereunder on the part of either party shall operate as a waiver of that right, power or privilege.
6.05. Licensee and Licensor acknowledge and agree that this End User Agreement is the complete and exclusive statement of the mutual understanding of the Licensee and Licensor relating to the subject matter of this End User Agreement and that it supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this End User Agreement. The Licensee and Licensor further agree that any modification or addition to this End User Agreement can only be made through a written agreement signed by both Licensor and Licensee. Notwithstanding anything to the contrary in the End User Agreement, this End User Agreement shall not apply to the “Services” set forth in Services Agreement.
6.06. This End User Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California. If any provision of the End User Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that the End User Agreement shall otherwise remain in full force and effect and enforceable.
6.07. In the case of Force Majeure preventing or hindering either party from performing its obligations under this End User Agreement, such Force Majeure shall not constitute a breach or default under this End User Agreement provided that: (i) the party prevented or hindered from performing (the "Affected Party") shall give written notice to the other party (the “Non-Affected Party"), as soon as practically possible, containing reasonable particulars of the Force Majeure in question and the effect of such Force Majeure as it relates to the obligations of the Affected Party; and (ii) the Affected Party works diligently to correct the reason for such delay, excuses performance by the Non-Affected Party during the period of such delay. [SIGNATURES ON FOLLOWING PAGE]
Executed on the day and date first above written.
LICENSOR: LICENSEE:
FOCUS LEARNING CORPORATION City of Santa Clara, California a California corporation a chartered California municipal corporation
by: ___________________________ by :_________________________________ Jay Steele, CEO Jovan Grogan
City Manager
HSI: Approved as to Form:
HSI Workplace Compliance Solutions, Inc,
by:__________________________________ by : _________________________________ A Washington corporation Glen R. Googins
City Attorney
by: ___________________________
Duane Tumlinson
Title Vice President, Sales Operations
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-344 Agenda Date: 5/7/2024
REPORT TO COUNCIL
SUBJECT
Action to Authorize the City Manager to Execute Agreement for CDBG-funded Capital Improvement Project: Riverwood Grove Energy Improvements and Action to Delegate Authority to the City Manager to Increase the Contract Amount if CDBG Capital Dollars are Available
COUNCIL PILLAR
Promote and Enhance Economic, Housing and Transportation Development
BACKGROUND
The City of Santa Clara maintains a Consolidated Plan in conformance with requirements of the United States Department of Housing and Urban Development (HUD), which directs the City’s use of funds allocated to the City by HUD. On May 9, 2023, City Council approved the 2023/2024 Annual Action Plan (RTC# 23-181) which recommended Community Development Block Grant (CDBG) funding for Riverwood Grove apartments for energy improvements in the amount of $350,000. This project helps address the City’s Consolidated Plan goals of Improvements to Affordable Housing for the benefit of low/moderate income residents. The project seeks to help eliminate gas usage at the property by switching to electric. This requires upgrades to the electrical panel systems. This upgrade has been requested by Riverwood Grove management to save operating costs over time.
DISCUSSION
The proposed agreement is included as Attachment 1. The scope of work includes:
Electrical panel upgrades - an electrical consultant will help calculate the additional load needed to switch from gas to all-electric at Riverwood Grove. The consultant will help determine what is needed to upgrade the main switchgear and all individual unit sub panels and will determine if the switchgear for each building is sized properly. A detailed scope of work will be developed by the consultant and reviewed by Silicon Valley Power before it is finalized. A general contractor will be selected through a competitive bidding process to deliver the electrical panel upgrade work.
Staff recommends a delegation of authority to the City Manager to increase this contract amount if legitimate cost increases arise and if capital dollars from CDBG funds are available. This will ensure the project can be completed on time and provide staff with more flexibility. Any increase to this project budget would come from CDBG capital funds and would not reduce CDBG funding for public service programs.
ENVIRONMENTAL REVIEW
The action being considered qualifies as a Categorical Exemption per the California Environmental Quality Act (CEQA) section 15301 (e)(1), Existing Facilities in that the projects are limited to repairs and upgrades to systems serving existing residential units.
City of Santa Clara Page 1 of 2 Printed on 5/3/2024
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24-344 Agenda Date: 5/7/2024
FISCAL IMPACT
This project will be funded using federal HUD Community Development Block Grant entitlement funds allocated for FY 2023/24 in the Housing and Urban Development Fund. The project budget has been appropriated as part of the FY 2023/24 and FY 2024/25 Adopted Operating Budget approved by the City Council on June 27, 2023.
COORDINATION
This report has been coordinated with the Finance Department, City Attorney’s Office, and City Manager’s Office.
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. Determine the project to be exempt from the California Environmental Quality Act (CEQA) pursuant to the Categorical Exemption set forth in Section 15301 (e)(1) (improvements to Existing Facilities) in that the project is limited to repairs and upgrades to systems serving existing residential units.
2. Authorize the City Manager to execute an agreement with Riverwood Grove Associates, a California Limited Partnership to fund up to $350,000 for electrical panel upgrades and related work subject to the availability of Community Development Block Grant funds, on the terms presented, in final forms approved by the City Attorney; and
3. Delegate authority to the City Manager to increase the contract amount if legitimate costs arise and if Community Development Block Grant capital funds are available up to an amount not to exceed $250,000.
Reviewed by: Reena Brilliot, Director, Community Development Approved by: Jovan D. Grogan, City Manager
ATTACHMENTS
1. Riverwood Grove Associates CDBG Agreement (Electrical Panel Upgrades) City of Santa Clara Page 2 of 2 Printed on 5/3/2024
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
CONTRIBUTION AGREEMENT
SUMMARY PAGE
Agency: Riverwood Grove Associates, a California Limited Partnership Project: Riverwood Grove Energy Improvements
Description: Mid-Pen Housing Corporation, a California non-profit organization, aims to provide safe and affordable housing to those in need. Riverwood Grove, their 71-unit property in Santa Clara, serves low-income families and requires energy improvements. The project is seeking funds to decarbonize Riverwood Grove/eliminate gas usage at the property which will contribute to the health benefits of large families as indoor air quality will improve. Switching from gas to electric will protect families from gas leaks and hazards of combustion. Decarbonization will help residents save energy costs. The scope will consist of electrical panel upgrade.
This will ensure that the 5 buildings at Riverwood Grove are future-proof and ready for clean, efficient, electric heating/cooling, hot water, and cooking.
Funding Source: Community Development Block (CDBG) – CDFA #14.218 Grant Number: B-23-MC-06-0022 Project No.: CDI-23-C02
Total Grant Award: $350,000 (Not to Exceed)
Agreement Term: Start Date: 05/07/2024 End Date: 06/30/2025 Affordability
Restriction Term: Start Date: 07/01/2025 End Date: 07/01/2035 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
PARTIES TO AGREEMENT:
ORGANIZATION CITY OF SANTA CLARA
Organization Name: Riverwood Grove
Associates, a California
Limited Partnership
Housing & Community
Services Division
Address for Legal
Notice (city/state/zip)
303 Vintage Park Drive,
#250 Foster City, CA 94404
1500 Warburton Avenue
Santa Clara, CA 95050
Executive Officer Name Matthew O. Franklin
Chief Executive Officer
Adam Marcus
Housing Division Manager
Email Address: mfranklin@midpen[email protected] Executive Officer
Phone
(650) 356-2903 (408) 615-2491
Project Contact: Aditi Mahmud (408) 850-6155
Project Manager Email amahmud@midpenhousing.org
Project Contact Phone (650) 393-9768
Tax ID 943382077
Federal Unique ID # 960096662
Type of Entity: 501 (c) 3 public benefit corp.
State of Incorporation
or Residency:
California
Ebix Insurance #
1 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Riverwood Grove Associates, a California nonprofit corporation, (“Organization”). City and Organization may be referred to individually as a “Party” or collectively as the “Parties” or the “Parties to this Agreement.”
RECITALS
A. City desires to complete the project more fully described in this Agreement, at Exhibit A, entitled “Scope of Works and Performance”.
B. Organization represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses, and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
C. The Parties have specified herein the terms and conditions under which such project will be provided and paid for.
The Parties agree as follows:
AGREEMENT PROVISIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Organization shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A: Scope of Work and Performance Measures
Exhibit B: Budget Summary and Payments Requirements
Exhibit C: Insurance Requirements
Exhibit D: Special Grant Conditions
Exhibit E: Ethical Standards and Affidavit of Compliance Exhibit F: MBE/WBE Guidelines
Exhibit G: Section 3 Guidelines
Exhibit H: Affordability Restriction Agreement
Exhibit I: Promissory Note
Exhibit J: Deed of Trust
2 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
This Agreement, including the Exhibits set forth above, contains all the Agreement’s, representations and understandings of the Parties, and supersedes and replaces any previous Agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. FUNDING AND APPROPRIATION
Pursuant to the provisions of Title I of the Housing and Community Development Act of 1974, as amended (HCD Act), Public Law 93-383, the City has received Community Development Block Grant funds (“CDBG”) from the United States Department of Housing and Urban Development (“HUD”) as an entitlement. From the CDBG grant funds, City has appropriated an amount not to exceed THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000) (“CDBG Funds”), subject to budget appropriations, to be given to Organization.
Upon Organization’s compliance with the terms and conditions of this Agreement, City will contribute to Organization the amount set forth in this Section. The Grant Funds shall not be used for any other purpose than to pay expenses (or if said expenses have already been paid by Organization, then for reimbursement of same to Organization) related to the purpose of the Grant, as set forth in Exhibit A. None of the City’s Contribution will be used to pay for any expenses of Organization incurred before the start of the Term of Agreement. All work performed, or materials provided in excess of the maximum compensation or work performed or materials provided that are deemed ineligible shall be at the Organization’s expense
3. TERM OF AGREEMENT
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on May 7, 2024, and terminate on June 30, 2025.
The City reserves the right at its sole discretion, and subject to funding and City Council appropriation, to extend the term of this Agreement Unless otherwise mutually agreed upon by the Parties, the Scope of Services (Exhibit A) shall remain the same under any extension of the Agreement.
4. PROPERTY AFFORDABILITY RESTRICTIONS
A. Use Restriction.
The Organization must execute the 10-year use agreement, attached hereto as Exhibit H (the “Affordability Restriction Agreement”), restricting the affordability of the property where the Project is located. The Affordability Restriction Agreement shall impose restrictions commencing on the completion of the work described in the Scope of Work and terminating on the 10th anniversary of the 3 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
end date of the Grant. The Organization agrees to record the Affordability Restriction Agreement against the property where the Project is located upon written request of City.
The Organization agrees that improvements shall be used to benefit low-income persons. The Organization agrees to maintain affordability restrictions in accordance with all applicable CDBG program requirements for the term of this Affordability Restriction. The Grant Award is conditioned upon the Organization maintaining the Affordability period not less than ten (10) years after the completion of the work described in the Scope of Work.
The Organization hereby warrants, represents, and agrees that it shall not interfere with, terminate or otherwise discontinue CDBG-use during the term of this Affordability Period. If Organization terminates or otherwise suspends the CDBG-use during the ten (10) years of the term of the Affordability Period, the Organization agrees it shall be immediately obligated to refund to the City all of the Grant funds awarded unless the City and the Organization otherwise agree in writing. If Organization terminates or otherwise suspends the CDBG Use between the second (2th) and the tenth (10th) year of the Affordability Period, Organization agrees it shall be immediately obligated to refund to CITY a prorated portion of the Grant Award funds unless the City and the Organization otherwise agree in writing.
B. Promissory Note.
The Organization shall execute a Promissory Note (the “Note”) in a form acceptable to the City for the amount determined in accordance with provision set forth in this Agreement. The Note shall become due and payable:
i. Upon sale of the property located at 2150 Tasman Drive in Santa Clara, CA by the Organization prior to the end of the Affordability Period; or ii. Upon a change in the use of the property by the Organization prior to the end of the Affordability Restriction to a use which is not an “eligible activity” under the Acts and Regulations issued by HUD pursuant thereto; or iii. Upon a default under the Deed of Trust.
The parties expressly agree that no sum shall be due and payable under the Note if, as of the end of the Affordability Period, the contingencies set forth as “(i)”, “(ii), and “(iii)” in the preceding paragraph have not occurred. At the end of the Affordability Period, the note and any liabilities or obligations, or both, arising therefrom, whether expressed or implied, shall be deemed null and void, and the Note shall be canceled without further act by any party hereto, unless the City has exercised its rights under the Deed of Trust, prior to the end of the Use Restriction.
4 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
C. Deed of Trust
The Promissory Note shall be secured by a Deed of Trust (the “Deed of Trust), in a form acceptable to the City on the Property that is more fully described in EXHIBIT J, attached hereto and incorporated herein by reference. In the event that the contingencies set forth in the preceding section do not occur, the City shall record a Full Reconveyance on the Property.
D. Conditions
The use of the property will be in accordance with all applicable City regulations and ordinances, as well as the CDBG national objectives and eligible activity provisions of the Housing and Community Development Acts, further defined in 24 CFR Part 570.200. The specific CDBG National Objective met by this Project is described in EXHIBIT A.
5. SCOPE OF WORK
Organization shall perform the work as specified in detail on EXHIBIT A entitled “Scope of Work and Performance Measures” and shall comply with the terms and conditions of this Agreement.
6. REPROGRAMMING OF FUNDS
Amendments to the terms and conditions of this Agreement shall be requested in writing by the Party desiring such revision, and any such adjustment to this Agreement shall be determined and effective only upon the mutual agreement in writing of the Parties hereto unless the amendments are made by HUD, in which case they will be adopted as ordered.
A. Initiated by City: City may re-channel funds budgeted in one cost category into another cost category of the Program. Before re-channeling funds, the City will give the Organization ten (10) business days written notice of the re-channeling of funds along with a copy of an expenditure review for the Program. City shall make its final determination with respect to the rechanneling of funds only after Organization has been given an opportunity to present its views and recommendations. In no event shall the City be bound to accept Organization's views or recommendations.
B. Initiated by Organization: The City's Program Manager may, at the request of Organization, approve re-channeling of funds from any cost category(ies) to another at any time provided that there is not an increase in the overall Total Budget amount specified in Exhibit B of this Agreement. Approval by the City’s Program Manager of such rechanneling of funds must be in writing. 5 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
7. PROGRAM COORDINATION
A. CITY: The Housing and Community Services Manager or his/her designee, shall be the Program Manager on behalf of City and shall render overall supervision of the progress and performance of this Agreement by City. All services to be performed by City shall be under the overall direction of the Program Manager.
B. ORGANIZATION: Organization shall assign a single Program Director who shall have overall responsibility for the progress and execution of this Agreement. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute Program Director, Organization shall notify City immediately of such occurrence. Program Director and Organization staff will fully cooperate with City's Program Manager relating to the Program, areas of concern, and the impact of Program on residents of City.
C. NOTICES: All notices or other correspondence required or contemplated by this Agreement shall be sent to the Parties at the following addresses:
City: Housing and Community Services Division
City of Santa Clara
1500 Warburton Avenue
Santa Clara, California 95050
and via email at: [email protected]
Organization: Riverwood Grove Associates
303 Vintage Park Drive Suite 250
Foster City, CA 94404
8. ACCOUNTING AND FINANCIAL RECORDS
Organization shall establish and maintain at all times, on a current basis in connection with the provision of Project, an adequate accounting system in accordance with generally accepted accounting principles and standards and acceptable to Director covering all revenues, costs, and expenditures with respect to Organization’s performance under this Agreement. Organization shall maintain its accounting system and shall provide City with reports that separate costs and expenses incurred by Organization with City funds as distinguished from costs and expenses paid for from other funding sources.
9. REPORTING REQUIREMENTS
Organization shall submit reports related to Organization’s performance under this Agreement prepared in accordance with EXHIBIT A and, to the extent applicable.
The format of the reports shall be as provided in this Agreement unless otherwise 6 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
directed by the Director. A final report shall be delivered to City prior to expiration of this Agreement, as may be further described in EXHIBIT A
10. RIGHT OF EXAMINATION AND AUDIT AND PRESERVATION OF RECORDS Organization agrees that the City Manager, Auditor, Attorney or the Director, or any of their duly authorized representatives, shall have access to and the right to examine, during regular business hours and on at least forty-eight (48) hours’ notice, all facilities and activities of Organization related to Organization’s performance of this Agreement, including the right to audit, conduct further financial review, examine and make excerpts or transcripts of all contracts, subcontracts, invoices, payroll records, personnel records, and all other data or financial records relating to matters covered by this Agreement at any time during the term of this Agreement.
Organization shall cooperate with City in such audit, examination, further review and shall provide City with access to Organization’s staff and to all relevant records, documents, and data, including but not limited to, management letters, board minutes, and payroll at the times and with the notice described in this Section 10.
11. INSURANCE
Prior to the commencement of any of the activities described in this Agreement and during its entire term, the Organization shall provide and maintain, in full force and effect, the insurance requirements set forth in the attached EXHIBIT C not later than the date of execution of this Agreement All policies, endorsements, certificates and/or binders shall be subject to approval by the Risk Manager of the City as to form and content. These requirements may not be amended or waived unless approved in writing by the Risk Manager. Organization agrees to provide City with a copy of said policies, certificates and/or endorsements upon execution of this Agreement.
12. OBLIGATIONS OF ORGANIZATION
A. Cooperation of Organization. Organization shall:
i. Provide City, prior to the Effective Date of this Agreement, and, at all times during the Agreement period, within thirty (30) days of a change in status of any of the following documents, with:
a. A copy of Articles of Incorporation under the laws of the State of California.
b. A copy of current Bylaws of Organization.
c. Verification and documentation of Internal Revenue Service nonprofit status under Title 26, Section 501(c) of the Internal Revenue Code. 7 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
d. Verification and documentation of State of California Franchise Tax Board tax exempt status under Section 23701(d), of the California Revenue and Taxation Code.
e. Names and addresses of current Board of Directors of Organization. f. A copy of the adopted personnel policies and procedures including an Affirmative Action Plan if staff exceeds fifteen (15) employees; and, g. An organizational chart and staffing profile.
ii. Report in writing any changes in the Organization 's Articles of Incorporation, Bylaws, tax exempt status and/or Board membership immediately to the City's Program Manager or his/her designee. iii. Maintain no greater than forty nine percent (49%) of the Board of Directors as “interested persons” under this Agreement. For the purposes of this Agreement, “interested persons” means either:
a. Any person currently being compensated by the Organization for services rendered to the Organization within the previous twelve (12) months, whether those services were rendered as a full or part time employee, independent contractor or otherwise, excluding any reasonable compensation to a director as a director; or, b. Any brother, sister, ancestor, descendant, spouse, brother-in-law, sister-in-law, son-in-law, daughter-in-law, mother-in-law, or father-inlaw of any such person. iv. Include on the Board of Directors representation from the broadest possible cross section of the community, including those with expertise and interest in the Organization's services, representatives from community organizations interested in the Organization's services, and users of the Organization's services.
v. Open to the public all meetings of the Board of Directors, except meetings, or portions thereof, dealing with personnel or litigation matters. vi. Keep minutes, approved by the Board of Directors, of all regular and special meetings. (A copy of approved minutes shall be forwarded to the City's Program Manager).
vii. Encourage public participation in planning and implementing services provided under this Agreement.
viii. Comply with 2 CFR § 200.321(b) and the City of Santa Clara Disadvantaged Business Enterprise Program, available from the City’s 8 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
Program Manager, regarding the use of minority and/or female owned businesses, vendors, suppliers, and contractors to the maximum extent feasible, for items funded under this Agreement.
B. Program Performance of Organization. Organization shall:
i. Submit to City performance criteria and schedule of activities describing measurable annual goals and objectives of the Program incorporated in this Agreement as Exhibit A.
ii. Submit to the City, on the prescribed form, a line-item operating budget of the Program to be incorporated in this Agreement as Exhibit B, titled “Budget Summary and Payment Requirements”, attached hereto and incorporated herein by this reference.
iii. Obtain completed intake documents for each City of Santa Clara resident receiving services under this Agreement. Such forms shall be approved by the City and shall be made available for review during the monitoring process.
iv. File reports (on forms approved by City) with the city on the type and number of services rendered to beneficiaries through the operation of the Program. Such reports shall evaluate the manner in which the Program is achieving its objectives and goals according to standards established by City. The reports shall be due within ten (10) business days after the end of each reporting period and shall cover the time immediately preceding the date on which the report is filed.
v. Provide a completed Program evaluation survey from a representative sampling of beneficiaries served. The results of this survey shall be periodically reviewed and approved by the Organization’s Board of Directors. Format of survey documents shall be subject to the approval of the City's Program Manager. Forms shall be held at Organization's administrative offices and shall be made available for review by City during the monitoring process.
vi. Coordinate its services with existing organizations providing similar service in order to foster community cooperation and to avoid unnecessary duplication of services.
vii. Seek out and apply for other sources of revenue in support of its operation or services from county, state, federal and private sources. viii. Include an acknowledgement of City support on all appropriate Program publicity and publications using words to the effect that services are funded by the City of Santa Clara. Any Program publicity acknowledging 9 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
City funding that is produced during the Agreement period shall be reviewed by City prior to any public release.
ix. Organization represents and warrants that it has the authority to enter into this Agreement. Organization further represents and warrants that its signatory to this Agreement is authorized to execute this Agreement on Organization’s behalf.
x. Comply with the City’s Ethical Standards as set forth in EXHIBIT E.
13. OBLIGATIONS OF CITY
A. Monitoring for Compliance with Agreement: Consistent with the applicable sections of 24 CFR §§ 570.501-502 and 2 CFR § 200.328, the city will evaluate the Project based on compliance with the Agreement, quarterly reports during the construction phase, and annual reports during the affordability period received from Organization.
B. Method of Payment: City shall reimburse Organization for all allowable costs and expenses incurred in providing the Program during the Agreement period, not to exceed the total sum of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000).
The City may, at any time and in its absolute discretion, elect to suspend or terminate payment to Organization, in whole or in part, under this Agreement or not to make any particular payment under this Agreement in the event of unsatisfactory performance or noncompliance. Reimbursement shall be initiated quarterly, or other time period approved by the City, upon submission of invoices and appropriate documentation
14. ASSIGNABILITY AND INDEPENDENT CONTRACTOR REQUIREMENTS City and Organization bind themselves, their successors and assigns to all covenants of this Agreement.
A. The relationship of Organization to City is that of an independent contractor.
Organization has full rights to manage its employees subject to the requirements of the law. All persons employed by Organization in connection with this Agreement shall be employees of Organization and not employees of City in any respect. Organization shall be responsible for all employee benefits, including, but not limited to, statutory worker's compensation benefits.
B. None of the work or services to be performed hereunder shall be delegated or subcontracted to third parties without prior written City approval. 10 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
C. Organization agrees to be responsible for the performance of all subcontractors of Organization and any liabilities attaching to their actions or omissions.
D. Organization will monitor any subcontractors to ensure compliance with the terms and conditions of this Agreement and provide records of their compliance as requested.
E. Organization assures that the subcontractor(s) maintain(s) current licensure and indemnity insurance appropriate for obligations undertaken by subcontractor(s) and provides copies of such to City.
F. Organization will provide City with records of reimbursement to subcontractor(s) for obligations incurred under subcontract.
G. City has the right to refuse reimbursement for obligations incurred under any subcontract that does not comply with the terms of this Agreement.
H. Organization shall “hold-back” a ten percent (10%) retention from invoice submissions from subcontractors. Retention funds shall be paid out to subcontractors after a Notice of Completion has been recorded for at least 35 days, or until all lien releases are received, and all local, federal, and state requirements have been certified and completed.
15. COMPLIANCE WITH LAW
A. Compliance: Organization shall become familiar and comply with and cause all its subcontractors and employees, if any, to become familiar and comply with all applicable federal, state and local laws, ordinances, codes, regulations, and decrees, including, but not limited to, those federal rules and regulations outlined in Exhibit D, titled “Special Grant Conditions”, attached hereto and incorporated herein by this reference.
B. Assurances: Failure Organization, in any manner, to observe and adhere to law as described herein or as amended shall in no way relieve Organization of its responsibility to adhere to same and Organization herein acknowledges this responsibility. Organization shall hold City, its City Council, officers, employees and boards and commissions harmless from Organization's failure(s) to comply with any requirement imposed on Organization by virtue of the utilization of City funds. Organization shall reimburse City for any disallowed costs and/or penalties imposed on City because of Organization's failure to comply with all applicable federal, state and local laws, ordinances, codes, regulations and decrees.
16. INTEGRATED DOCUMENT
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This Agreement embodies the Agreement between City and Organization and its terms and conditions. No verbal agreements or conversations with any officer, agent or employee of City prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement.
Any such verbal agreement shall be considered as unofficial information and in no way binding upon City.
17. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Organization agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney’s fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner arising from, or alleged to arise in whole or in part from, or in any way Organization receipt of funds pursuant to this Agreement – including claims of any kind by Organization’s employees or persons contracting with Organization to perform any portion of the Scope of Work and Performance Measures as outlined in Exhibit A – and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.
B. Organization’s obligation to protect, defend, indemnify, and hold harmless in full City and City’s employees, shall specifically extend to any and all employmentrelated claims of any type brought by employees, contractors, subcontractors or other agents of Organization, against City (either alone, or jointly with Organization), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.
C. To the extent Organization is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act (“Act”) and/or any other similar federal or state law, Organization warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Organization’s responsibilities under the Act.
18. WHEN RIGHTS AND REMEDIES WAIVED
In no event shall any payment by City hereunder constitute or be construed to be a waiver by City of any breach of covenants or conditions of this Agreement or any default which may then exist on the part of Organization, and the making of any such payment while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to City or Organization with respect to such breach or default.
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19. TERMINATION
A. In accordance with 2 CFR § 200.338, the City may suspend or terminate this Agreement if the Organization materially fails to comply with any terms of this Agreement, which include, but are not limited to;
i. Organization fails to comply with existing conditions of the Agreement; or, ii. Organization refuses to accept any additional conditions that may be imposed by City or the Federal government; or,
iii. With receipt by City of any information that indicates a failure or deficiency by Organization to comply with any provision of this Agreement or provide unsatisfactory service, the City shall have the right to require corrective action to enforce compliance with such provision; or,
iv. Organization fails to implement required corrective actions in a timely and sufficient fashion.
B. Termination for Convenience: Consistent with the applicable section of 24 CFR § 570.503 and 2 CFR § 200.326, City or Organization may terminate or suspend this Agreement in whole or in part when both Parties agree that the continuation of the Program would not produce beneficial results commensurate with the further expenditure of funds.
C. Upon Suspension or Termination Organization Shall
i. Not incur new obligations and shall cancel as many outstanding obligations as possible; and,
ii. Be paid only for work actually performed prior to the date of such suspension or termination; and,
iii. Turn over to City immediately any and all copies of studies, reports and other data, prepared by Organization or its subcontractors, whether or not completed, if any, in connection with this Agreement; such materials shall become property of City. Organization, however, shall not be liable for City's use of incomplete materials or for City's use of complete documents if used for other than the services contemplated by this Agreement; and, iv. Act in accordance with the Closing Out Procedure.
20. CLOSING OUT PROCEDURE
A. Organization is responsible for City's receipt of final billing within 30 days after the signing of the Notice of completion.. Any amount of the grant remaining unbilled after the applicable date will be reprogrammed by City. 13 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
B. City is not liable for any Organization expenses incurred after the period of this Agreement.
C. Closing Out does not impair the City's right to subsequently require repayment by Organization for disallowed costs or other adjustments, or any other City costs and expenses related to this Agreement or the enforcement thereof.
21. THE CAPTIONS
The captions of the various sections, paragraphs, and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation.
22. NO THIRD-PARTY BENEFICIARY
This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever.
23. SEVERABILITY
In case any one or more of the provisions contained herein shall, for any reason, be held invalid, illegal, or unenforceable in any respect, it shall not affect the validity of the other provisions which shall remain in full force and effect.
If any part of this Agreement is for any reason found to be unenforceable by a court of competent jurisdiction, all other parts nevertheless remain enforceable. City and Organization agree that to the extent that the exclusion of any unenforceable provisions from this Agreement affects the purpose of this Agreement, then the parties shall negotiate an adjustment to this Agreement in order to give full effect to the purpose of this Agreement or either party may terminate this Agreement.
24. NO PLEDGING OF CITY’S CREDIT
Under no circumstances shall Organization have the authority or power to pledge the credit of City or incur any obligation in the name of City. Organization shall save and hold harmless City, its City Council, its officers, employees, and boards and commissions for expenses arising out of this Agreement.
25. NO USE OF CITY NAME OR EMBLEM
Organization shall not use City’s name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City. 14 Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
26. VENUE
In the event that suit shall be brought by any Party to this Agreement, the Parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara, or where otherwise appropriate, exclusively in the United States District Court, Northern District of California, Santa Clara Division.
27. ORGANIZATION FINANCIAL DISCLOSURE REQUIREMENTS
Organization services to be rendered under the provisions of this Agreement are excluded from the requirement of filing a Financial Disclosure Statement by Title 2, California Code of Regulations, Section 18700 (2)(A) and (B).
28. CONFLICT OF INTEREST
Organization certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Organization and that no person associated with Organization has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Organization is familiar with the provisions of California Government Code section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Organization will advise City if a conflict arises.
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The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives. The Effective Date is the date that the final signatory executes the Agreement. It is the intent of the Parties that this Agreement shall become operative on the Effective Date.
CITY OF SANTA CLARA, CALIFORNIA,
a chartered California municipal corporation
Approved as to Form: Dated:
Glen R. Googins
City Attorney
Jōvan D. Grogan, City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”
RIVERWOOD GROVE ASSOCIATES,
a California Limited Partnership
By: MP Santa Clara Inc.,
A California non-profit public benefit corporation,
Its General Partner
Dated:
By:
Name: Michel J. Vergura
Title: Assistant Secretary
Local
Address: 303 Vintage Park Drive
Foster City, California 94404
Email
Address: [email protected]
Telephone: 650-356-2988
“ORGANIZATION”
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT A
SCOPE OF WORK AND PERFORMANCE REQUIREMENTS
1.01 Purpose of Project
Organization shall implement this Agreement in accordance with the applicable provisions of Title I of the Housing and Community Development Act of 1990, as amended, the federal regulations as set forth in 24 CFR Part 570, written interpretations, or requirements by the Department of Housing and Urban Development (HUD), and all other rules and regulations pertaining thereto. All these elements shall be collectively called "CDBG".
The nature of the project is such, that a detailed scope will entail communication with an electrical consultant, energy consultant, and Silicon Valley Powers (the utility provider) before the scope could be finalized for electrical panel upgrade work.
Scope of Work
The scope will entail an electrical panel upgrade. The electrical consultant will help calculate the additional load needed to switch from gas to all-electric at Riverwood Grove. The consultant will help lay down the processes needed to upgrade the main switchgear and all individual unit sub panels, and will determine if the switchgear for each building is sized properly.
The Consultant will help us understand if the existing transformers have the capacity and help determine if the potential upgrade is needed for the wiring size from the main panel to the individual unit sub panels. The Consultant will help us understand if we need to increase the sub panels in each respective unit and the main breaker size for each unit.
The consultant will work closely with the energy consultant, Mid-Pen Project Manager and Construction Manager to establish a detailed scope of work for the construction scope. The scope of work will be reviewed by Silicon Valley Powers (the utility provider) before it is finalized. Once the design is in place, a general contractor will be selected through a competitive bidding process to deliver the electrical panel upgrade work at Riverwood Grove.
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1.02 Location of Project
Unless otherwise indicated, the Project specified below will be offered at the following location:
Site Name Site Address
Riverwood Grove 2150 Tasman Drive
Santa Clara, CA 95054
1.03 Project National Objective and Eligibility
All activities funded with CDBG funds must meet one of the CDBG program’s National Objectives: benefit low- and moderate-income persons; aid in the prevention or elimination of slums or blight; or meet community development needs having a particular urgency, as defined in 24 CFR § 570.208.
1.04 HUD Objectives and HUD Outcomes
The Organization certifies that the activity(ies) carried out under this Agreement will Create Suitable Living Environments by meeting the Consolidated Plan Goal of Providing Decent Housing for low-income households.
Matrix Code 14B Rehab: Multi-Unit Residential
National Objective Benefit to low-and moderate income (LMI) persons
Accomplishment type 10 Housing
HUD Objective Provide decent housing
HUD Outcome Create Suitable Living Environments
Project meets the National Objective of benefiting low- and moderate-income persons.
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1.05 Project Timeline.
The timeline below constitutes the measurable goals by which Project performance will be evaluated. Activities are identified for each type of Project Identify target dates (month/year) for all items that apply to the Project. If an activity is already completed, write the date (month/year) that it was completed.
Work Phase Completion Date
Pre-Development Phase.
Complete Environmental Review process 3/30/2024
Complete/submit the draft of the Electrical Plan and
Project Specifications to City for review and
approval
7/31/2024
Obtain necessary permits 8/31/2024
Constructions Phase.
Prepare Bid Package for construction 09/01/2024
Provide Prevailing Wage Decision for bid package 09/01/2024 Place a short advertise for bids in newspapers (at
least 21 days before bid opening)
10/03/2024
Pre-Bid Conference or Walk-Thru (Not Mandatory) 10/25/2024 Bid opening 10/28/2024
Select the Bidder/Award of Contract by Ratification
of the Board
11/1/2024
Pre-Construction meeting (Mandatory for parties
involved)
11/16/2024
Complete Construction Contract (AIA Agreement) 12/01/2024 Sign Contract (AIA Agreement) 12/15/2024
Issue Notice to Award/Proceed 12/15/2024
Begin construction 01/15/2025
Final Inspection / Punch list 03/30/2025
Finish construction 04/15/2025
Unconditional Lien Release for final payment (copy
for city record)
04/28/2025
Issue and Record the Notice of Acceptance or
Notice of project completion (send a conforming
copy to Housing)
06/28/2025
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1.06 Project Implementation.
Organization shall have full responsibility to procure and to monitor the performance of contractors and subcontractors hired, with technical assistance provided by the City as needed, subject to the following requirements:
1) Organization or Organization’s representative shall describe its method of procuring contractors. This procurement plan shall be subject to written approval by City.
2) Organization shall prepare a scope of work, describing the various development and construction activities to be undertaken. This scope of work shall be approved, in writing, by City, before any financial commitments to contractors are entered into by Organization. The scope of work described in Section 1.01 is hereby deemed approved by City. 3) Organization shall develop bid/proposal documents for all contractors.
These documents shall be approved by the City, in writing, prior to public release.
4) Organization shall obtain required permits and plan approvals before undertaking any construction work.
5) The City shall comply with state prevailing wage reporting requirements.
Contractors and subcontractors shall be registered with the Department of Industrial Relations (DIR) prior to submitting any bid documents.
1.07 Reporting Requirements.
On a format prescribed by the City, the Organization must submit the following reports:
1) Quarterly Status Reports. At the end of each quarter during the construction phase, Organization shall provide the Project Status Report to the Housing and Community Services Division until the Project completes.
2) Reporting Schedule. All required reports shall be submitted to the no later than fifteen (15) calendar days after the end of the reporting quarter.
3) Annual Report. At the end of each fiscal year during the 10-year Affordability Period, Organization shall submit an Annual Report that certifies clients benefiting from services provided on site continue to be Low- and Moderate-Income persons.
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4) Unduplicated Participants. For purposes of this Agreement, UNDUPLICATED PARTICIPANTS shall be defined as participants who receives more than one service offered by this project, and at least once a year but who may not be counted more than once in that year.
Organization shall retain records documenting eligibility. Such records shall include family size, total household income, gender head of household, race, ethnic and disability data.
TOTAL
Total Households served after
project completion
(70 Households per year)
1.08 Cost Reimbursement.
Project will be reimbursed based upon the percentage of work completed on approved invoices submitted pursuant to this Agreement. Requests for reimbursement will be made on a form and in manner prescribed by the City under provisions as set forth in EXHIBIT B, entitled “Budget Summary and Payments Requirements”.
1.09 Final Payment/Close-Out Project Requirements
Organization will ensure that the following documentation is provided to the City in a timely manner:
1) Closeout Construction Certificate of Substantial Completion 2) Complete Certification of Completion Form
3) Certification of Final Design Letter
4) Closeout Construction Insurance Notification
5) Closeout Construction Certificate of Occupancy Closeout Construction 6) Closeout Construction Photos & Brief Description
7) Unconditional Lien Release for Final Payment from the General Contractor and all the Sub-Contractor(s)
8) Recorded of Notice of Completion Report
9) Final Progress Report: (The report shall include a summary of progress toward the achievement, a list of significant results (positive or negative).
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CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT B
BUDGET SUMMARY AND PAYMENT REQUIREMENTS
1.01 Budget Summary.
BUDGET CATERGORY CDBG
Request
Other
Funds
Total
Project
Cost
Predevelopment Costs
Environmental Review Assessment
Planning Design, or Architectures Costs
Permits Fees 12,040 10,680 22,720
Construction Manager costs
Admin costs
SUBTOTAL 12,040 $10,680 22,720
Construction Costs
Construction Materials Costs
Bolt-in Fixtures Costs
General Construction Costs 329,960 329,960
Other Construction Costs 41,400 41,400
SUBTOTAL 337.960 41,400 371,360
Admin & Project Delivery Costs (up
to 20% of project total including
contingency)
Staffing 20,277.60 20,277.60
Consultants 8,000 8,000
Addendum 1
Addendum 2
SUBTOTAL 8,000 20,277.60 28,277.60
TOTAL PROJECT COSTS 350,000 72,357.60 422,357.60
*Attach one-page listing construction components included in the Primary Construction and/or elements included in the Other Construction category (physical improvement projects only).
**Federally funded projects must meet all ADA requirements.
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1.02 Payments Process.
1) City agrees to reimburse Organization for the expenses incurred as set forth in this Agreement in an amount of money not to exceed the amount set forth in this Agreement. Such sum shall be expended and paid by City to Organization on a reimbursement basis for expenses actually incurred and paid by Organization during the term of this Agreement for the cost categories appearing in EXHIBIT B, as described in subsection B below.
2) Payments to Organization shall be made within thirty (30) days of:
a. Receipt by City of statement or statements in a form approved by City specifying in detail the costs incurred by and paid by Organization during the month for which payment is requested; and,
b. Documents evidencing these costs, including but not limited to, paid invoices, and the determination by City, in its sole discretion, that expenses for which Organization seeks reimbursement can properly be paid under this Agreement and such statement(s) and supporting documents reasonably evidencing that the expenses have been incurred and paid by supporting documents reasonably evidencing that the expenses have been incurred and paid by supporting documents reasonably evidencing that the expenses have been incurred and paid by Organization. In making such determination, City may, but need not, rely upon the certification by Organization that the items appearing on said statement and supporting documents are eligible items for reimbursement under this Agreement. Such determination by City shall in no way constitute a waiver by City of its right to recover from Organization the amount of money paid to
Organization on any items which is not eligible for payment under this Agreement.
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CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Organization’s indemnification of the City, and prior to commencing any of the Services required under this Agreement, the Organization shall provide and maintain in full force and effect, at its sole cost and expense, the following insurance policies with at least the indicated coverages, provisions and endorsements:
A. COMMERCIAL GENERAL LIABILITY INSURANCE
1. Commercial General Liability Insurance policy which provides coverage at least as broad as Insurance Services Office form CG 00 01. Policy limits are subject to review, but shall in no event be less than, the following:
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury
2. Exact structure and layering of the coverage shall be left to the discretion of Organization; however, any excess or umbrella policies used to meet the required limits shall be at least as broad as the underlying coverage and shall otherwise follow form.
3. The following provisions shall apply to the Commercial Liability policy as well as any umbrella policy maintained by the Organization to comply with the insurance requirements of this Agreement:
a. Coverage shall be on a “pay on behalf” basis with defense costs payable in addition to policy limits;
b. There shall be no cross liability exclusion which precludes coverage for claims or suits by one insured against another; and
c. Coverage shall apply separately to each insured against whom a claim is made or a suit is brought, except with respect to the limits of liability.
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B. BUSINESS AUTOMOBILE LIABILITY INSURANCE
Business automobile liability insurance policy which provides coverage at least as broad as ISO form CA 00 01 with policy limits a minimum limit of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.
In the event that the Work being performed under this Agreement involves transporting of hazardous or regulated substances, hazardous or regulated wastes and/or hazardous or regulated materials, Organization and/or its subcontractors involved in such activities shall provide coverage with a limit of two million dollars ($2,000,000) per accident covering transportation of such materials by the addition to the Business Auto Coverage Policy of Environmental Impairment Endorsement MCS90 or Insurance Services Office endorsement form CA 99 48, which amends the pollution exclusion in the standard Business Automobile Policy to cover pollutants that are in or upon, being transported or towed by, being loaded onto, or being unloaded from a covered auto.
C. WORKERS’ COMPENSATION
1. Workers’ Compensation Insurance Policy as required by statute and employer’s liability with limits of at least one million dollars ($1,000,000) policy limit Bodily Injury by disease, one million dollars ($1,000,000) each accident/Bodily Injury and one million dollars ($1,000,000) each employee Bodily Injury by disease.
2. The indemnification and hold harmless obligations of Organization included in this Agreement shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefit payable by or for Organization or any subcontractor under any Workers’ Compensation Act(s), Disability Benefits Act(s) or other employee benefits act(s).
3. This policy must include a Waiver of Subrogation in favor of the City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents.
D. COMPLIANCE WITH REQUIREMENTS
All of the following clauses and/or endorsements, or similar provisions, must be part of each commercial general liability policy, and each umbrella or excess policy.
1. Additional Insureds. City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are hereby added as additional insureds in respect to liability arising out of Organization’s work for City, using Insurance Services Office (ISO) Endorsement CG 20 10 11 85 or the combination of CG 20 10 03 97 and CG 20 37 10 01, or its equivalent.
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2. Primary and non-contributing. Each insurance policy provided by Organization shall contain language or be endorsed to contain wording making it primary insurance as respects to, and not requiring contribution from, any other insurance which the Indemnities may possess, including any self-insurance or self-insured retention they may have. Any other insurance Indemnities may possess shall be considered excess insurance only and shall not be called upon to contribute with Organization’s insurance.
3. Cancellation.
a. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided due to non-payment of premiums shall be effective until written notice has been given to City at least ten (10) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Each insurance policy shall contain language or be endorsed to reflect that no cancellation or modification of the coverage provided for any cause save and except non-payment of premiums shall be effective until written notice has been given to City at least thirty (30) days prior to the effective date of such modification or cancellation. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non-renewal.
4. Other Endorsements. Other endorsements may be required for policies other than the commercial general liability policy if specified in the description of required insurance set forth in Sections A through D of this Exhibit C, above.
E. ADDITIONAL INSURANCE RELATED PROVISIONS
Organization and City agree as follows:
1. Organization agrees to ensure that subcontractors, and any other party involved with the Services who is brought onto or involved in the performance of the Services by Organization, provide the same minimum insurance coverage required of Organization, except as with respect to limits. Organization agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this Agreement. Organization agrees that upon request by City, all agreements with, and insurance compliance documents provided by, such subcontractors and others engaged in the project will be submitted to City for review.
2. Organization agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Organization for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these C-4
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requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto.
3. The City reserves the right to withhold payments from the Organization in the event of material noncompliance with the insurance requirements set forth in this Agreement.
F. EVIDENCE OF COVERAGE
Prior to commencement of any Services under this Agreement, Organization, and each and every subcontractor (of every tier) shall, at its sole cost and expense, provide and maintain not less than the minimum insurance coverage with the endorsements and deductibles indicated in this Agreement. Such insurance coverage shall be maintained with insurers, and under forms of policies, satisfactory to City and as described in this Agreement. Organization shall file with the City all certificates and endorsements for the required insurance policies for City’s approval as to adequacy of the insurance protection.
G. EVIDENCE OF COMPLIANCE
Organization or its insurance broker shall provide the required proof of insurance compliance, consisting of Insurance Services Office (ISO) endorsement forms or their equivalent and the ACORD form 25-S certificate of insurance (or its equivalent), evidencing all required coverage shall be delivered to City, or its representative as set forth below, at or prior to execution of this Agreement. Upon City’s request, Organization shall submit to City copies of the actual insurance policies or renewals or replacements. Unless otherwise required by the terms of this Agreement, all certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
EBIX Inc.
City of Santa Clara [Housing & Community Services]
Telephone number: 951-766-2280
Fax number: 770-325-0409
Email address: [email protected]
H. QUALIFYING INSURERS
All of the insurance companies providing insurance for Organization shall have, and provide written proof of, an A. M. Best rating of at least A minus 6 (A- VI) or shall be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives.
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CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT D
SPECIAL GRANT CONDITIONS
The Organization, its contractors and subrecipients shall comply with the policies, guidelines and requirements of OMB Uniform guidance at 2 CFR Part 200 the Uniform Administrative requirements, as well as all state laws, regulations and department guidelines applicable to the activities set forth.
SECTION 1 GENERAL GRANT CONDITIONS
1.01 Definitions. As used herein, “HUD” means United States Department of Housing and Urban Development. “Project Area” for the purposes of this EXHIBIT D means the City of Santa Clara.
1.02 Compliance with Applicable Federal Regulations. Organization agrees to comply with the requirements of Title 24 CFR Part 570, including subpart K of these regulations, except that (1) the Organization does not assume the City’s environmental responsibilities described in 24 CFR § 570.604; and (2) the Organization does not assume the City’s responsibility for initiating the review process under the provisions of 24 CFR Part 52. The Organization also agrees to comply with all other applicable Federal, state and local laws, regulations and policies governing the funds provided under this Agreement. The Organization further agrees to utilize funds available under this Agreement to supplement rather than supplant funds otherwise available.
1.03 Applicable Federal Civil Rights Laws and Executive Orders. In providing the services and work set forth in this Agreement, Organization will carry out its work in a manner that will permit full compliance by City and strict adherence by Organization with the following:
a. Title VI of the Civil Rights Act of 1964, which provides that no person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance; and b. The Housing and Community Development Acts of 1974 and 1977, as amended, which provide that no person in the United States shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available pursuant to said acts; and
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c. Title VIII of the Civil Rights Act of 1968 (The Fair Housing Act) which prohibits discrimination in the sale, rental, and financing of housing and the provision of brokerage services because of race, color, religion, sex, sexual orientation, actual or perceived gender identity, national origin, handicap, or familial status; and
d. Executive Order 11063, as amended by Executive Order 12259, which provides for equal opportunity in housing and related facilities provided by federal financial assistance. This order and its implementing regulations require the Department of Housing and Urban Development to take all actions necessary to prevent discrimination because of race, color, religion, sex, or national origin in the use, occupancy, sale, leasing, rental or other disposition of residential property assisted with Federal loans, advances, grants or contributions; and
e. Executive Order 11246, (as amended by Executive Orders 11375 and 12086 and further amendments) Equal Opportunity Under HUD Contracts and HUDassisted Construction Contracts, which requires that City and Organization, and their respective subcontractors, agree not to discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, sexual orientation, actual or perceived gender identity, or national origin; and
f. Section 3 of the Housing and Community Development Act of 1968 Pertaining to Employment Opportunities for Lower-Income Persons (12 U.S.C. 1701u), requires that, to the greatest extent feasible on projects financed by HUD, a subrecipient must:
i. Provide opportunities for training and employment arising in connection with a housing rehabilitation (including reduction and abatement of lead-based paint hazards), housing construction, or other public construction project, are given to persons residing in the Santa Clara metropolitan area with household income that is at or below 80% AMI of the Santa Clara metropolitan area as defined by HUD. Where feasible, priority should be given to residents within the service area of the Project or the neighborhood in which the Project is located who have household income that is at or below 80% AMI of the Santa Clara metropolitan area as defined by HUD, and to participants in other HUD programs who have household income that is at or below 80% AMI of that area; and
ii. Award contracts for work undertaken in connection with housing rehabilitation (including reduction and abatement of lead-based paint hazards), housing construction, or other public construction project to business concerns that provide economic opportunities for persons D-3
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residing within the metropolitan area in which the CDBG-funded Project is located and have household income that is at or below 80% AMI of the Santa Clara metropolitan area as defined by HUD. Where feasible, priority should be given to business concerns that provide economic opportunities to residents within the service area or the neighborhood in which the Project is located who have household income that is at or below 80% AMI of the Santa Clara metropolitan area as defined by HUD, and to participants in other HUD programs who have household income that is at or below 80% AMI of that area; and
iii. Self-certify whether they are a Section 3 business, employs Section 3 residents, or subcontracts with business that provide opportunities to low-income persons when an award of $100,000 or more of HUD funding is provided for housing rehabilitation, housing construction, or other public construction projects, and/or $100,000 or more to subcontractors: and
iv. At a minimum, provide documentation on federal compliance, reporting and outreach efforts; and
g. Section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112), as amended, and implementing regulations when published which specify that no otherwise qualified individual shall, solely by reason of his or her handicap, be excluded from participation (including employment), denied program benefits, or subjected to discrimination under any program or activity receiving Federal assistance; and
h. The Age Discrimination Act of 1975 (Pub. L. 94-135), as amended, and implementing regulations when published for effect which provides that no person shall be excluded from participation, denied program benefits, or subjected to discrimination on the basis of age under any program or activity receiving Federal assistance; and
i. Presidential Executive Order 13166 (“Improving Access to Services for Persons with Limited English Proficiency”), and
j. The requirements relating to Minority-Owned and Women-Owned Business Enterprises set forth in Executive Order No. 11625 of October 13, 1971, 36 Fed. Reg. 19967, as amended by Executive Order No. 12007 of August 22, 1977, 42 Fed. Reg. 42839; and Executive Order No. 12432 of July 14, 1983, 48 Fed. Reg., 32551; and Executive Order No. 12138 of May 18, 1979, 44 Fed. Reg. 29637, a subrecipient must exercise affirmative outreach efforts when soliciting bids for service or construction when the Federal funds received by the subrecipient or subcontractor exceeds $10,000 and when the subrecipient or subcontractor is a for-profit organization/ business; and D-4
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k. The Uniform Federal Accessibility Standards set forth in 24 CFR Part 40, Appendix A; and
l. Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination on the basis of disability in employment and in public accommodations and commercial facilities and defines the range of conditions that qualify as disabilities, and the reasonable accommodations that must be made to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for persons with disabilities. It further provides that discrimination includes a failure to design and construct facilities for first occupancy no later than January 26, 1993, that are readily accessible to and usable by individuals with disabilities. Further the ADA requires the removal of architectural barriers and communication barriers that are structural in nature in existing facilities where such removal is readily achievable – that is easily accomplishable and able to be carried out without much difficulty or expense; and,
m. The provisions of 24 CFR Part 24, relating to the employment, engagement of services, awarding of contracts, or funding of any grantee or sub during any period of debarment, suspension, or placement in ineligibility status; and, n. Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846 and implementing regulations at 24 CFR Part 35; and,
o. Section 104(b) of Title I of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5301 et. seq.) This law provides that any grant under section 106 shall be made only if the City certifies to the satisfaction of the Secretary of HUD that the Organization will, among other things, affirmatively further fair housing; and,
p. Section 109 of Title I of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5301 et. seq., particularly 42 U.S.C. 6101 ets. seq., and 29 U.S.C. 794) and further amendments, which mandates that no person on the grounds of race, color, national origin, sex, sexual orientation, actual or perceived gender identity, age or religion shall be excluded from participation, denied the benefits of, or otherwise be subject to discrimination under any activity funded in whole or part with CDBG funds; and, q. Architectural Barriers Act of 1968 requires that federally funded buildings and other facilities, as defined in 24 CFR § 40.2 and 40 CFR § 101-19.602(2), to be designed, constructed, or altered in accordance with standards that ensure accessibility to, and use by, physically handicapped people; and, r. Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708).
Where applicable, all contracts awarded by the non-Federal entity in excess D-5
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of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence; and, s. Uniform Accessibility Standard, at 24 CFR Part 40, Appendix A, as the relate to substantial rehabilitation or conversion; and,
t. Procurement of Recovered Materials: See 2 CFR 200.322.
1.04 Relocation and Real Property Acquisition. Organization shall comply with (a) the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA) and 24 CFR § 570.606(b); and (b) the requirements of 24 CFR §570.606(c) governing the Residential Anti-displacement and Relocation Assistance Plan (Plan) under section 104(d) of the HCD Act. Under the URA and the Plan, the subrecipient must provide relocation assistance to persons (families, individuals, businesses, non-profit organizations and farms) that are displaced as a direct result of acquisition, rehabilitation, demolition or conversion for a CDBGassisted project. All property occupants must be issued certain notices on a timely basis. The Plan also required the one-for-one replacement of any occupied or vacant occupiable low/moderate-income housing that is demolished or converted to another use in connection with a CDBG-assisted project. Finally, the Plan requires the identification of the steps that will be taken to minimize displacement.
1.05 Political Reform Act. Organization shall comply with the applicable provisions of the Political Reform Act of 1974, as amended, relating to conflicts of interest (codified at California Government Code Section 87000, et seq.) Organization will promptly advise City of the facts and circumstances concerning any disclosure made to it or any information obtained by it relating to conflicts of interest.
1.06 Flood Disaster Protection. Notwithstanding any other provision of this Agreement, Organization shall comply with the Flood Disaster Protection Act of 1973, as amended (P.L. 93-234), and the standards issued thereto. No portion of the moneys to be paid to Organization pursuant to this Agreement shall be used for acquisition or construction purposes as defined under Section 3(a) of said Act, for use in an area identified by the Secretary of HUD as having special flood hazards D-6
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which is located in an area not in compliance with the requirements for participation in the National Flood Insurance Program pursuant to Section 201(d) of said Act; and the use of any of said moneys for such acquisition or construction in such identified areas in communities then participating in the National Flood Insurance Program shall be subject to the mandatory purchase of flood insurance requirements of Section 102(a) of said Act.
Any contract or agreement for the sale, lease or other transfer of land acquired, cleared or improved with assistance provided under this Agreement shall contain, if such land is located in an area identified by the Secretary of HUD as having special flood hazards and in which the sale of flood insurance has been made available under the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001, et seq., provisions obligating the transferee and its successors or assigns to obtain and maintain, during the ownership of such land, such flood insurance as required with respect to financial assistance for acquisition or construction purposes under Section 102(a) of the Flood Disaster Protection Act of 1973, as amended. Such provisions shall be required notwithstanding the fact that the construction on such land is not itself funded with assistance provided under this Agreement.
1.07 Equal Employment Opportunity. In providing the work and services herein specified, Organization shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin.
Organization shall take action to ensure that applicants for employment are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, actual or perceived gender identity, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Organization shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Federal Government or the City setting forth the provisions of this nondiscrimination clause. Organization shall state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, actual or perceived gender identity, or national origin. Organization shall incorporate the foregoing requirements of this paragraph 1.07 in all of its contracts for program work, and will require all of its contractors for such work to incorporate such requirements in all subcontracts for program work.
1.08 Prohibition of and Elimination of Lead-Based Paint Hazard. Notwithstanding any other provision, Organization agrees to comply with the regulations issued by the Secretary of HUD set forth in 24 CFR § 570.608 and all applicable rules and orders issued thereunder which prohibit the use of lead-based paint in residential structures undergoing federally assisted construction or rehabilitation and require the elimination of lead-based paint hazards. Every contract or subcontract, D-7
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including painting, pursuant to which such federally assisted construction or rehabilitation is performed, shall include appropriate provisions prohibiting the use of lead-based paint.
1.09 Compliance With Clean Air and Water Acts. This Agreement is subject to 42 U.S.C. 1857, et seq., and 33 U.S.C. 1251 et seq., and the regulations issued pursuant thereto. Therefore, Organization agrees as follows:
a. Organization stipulates that any facility to be utilized in the performance of any nonexempt contract or subcontract is not listed on the List of Violating Facilities issued by the Environmental Protection Agency (EPA) pursuant to 40 CFR § 15.20; and,
b. Organization agrees to comply with all the requirements of Section 114 of the Clean Air Act, as amended, (42 U.S.C. 1857c-8) and Section 308 of the Federal Water Pollution Control Act, as amended, (33 U.S.C. 1318) relating to inspection, monitoring, entry, reports, and information, as well as all other requirements specified in said Sections 114 and 308, and all regulations and guidelines issued thereunder; and,
c. Organization stipulates that as a condition for the award of the contract prompt notice will be given of any notification received from the Director, Office of Federal Activities, EPA, indicating that a facility utilized or to be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities; and,
d. Organization agrees that criteria and requirements in subparagraphs (a) through (d) of this section 1.09 will be included in every non-exempt subcontract and Organization shall take such action as the City or HUD requires as a means of enforcing such provisions.
In no event shall any amount of the assistance provided under this Agreement be utilized with respect to a facility which has given rise to a conviction under Section 113(c)(1) of the Clean Air Act or Section 309(c) of the Federal Water Pollution Control Act.
1.10 Federal Labor Standards (i.e., Davis Bacon Act) Provisions. Except with respect to the rehabilitation of residential property designed for residential use for less than eight (8) families, Organization and all subrecipients engaged under contracts in excess of Two Thousand Dollars ($2,000) for the construction, completion or repair of any building or work financed in whole or in part with assistance provided under this Agreement, shall comply the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the D-8
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prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.
Organization shall not award any contract or subcontract which is otherwise in compliance with this Agreement to any person or subcontractor who is at the time ineligible under the provisions of any applicable regulations of the Department of Labor to receive an award of such contract.
1.11 Nondiscrimination Under Title VI of the Civil Rights Act of 1964. Organization under this Agreement shall be subject to the requirements of Title VI of the Civil Rights Act of 1964 (P.L. 88-352) and HUD regulations with respect thereto including the regulations under 24 CFR Part 1. In the sale, lease or other transfer of land acquired, cleared or improved with assistance provided under this Agreement, Organization shall cause or require a covenant running with the land to be inserted in the deed or lease for such transfer, prohibiting discrimination upon the basis of race, color, religion, sex, sexual orientation, actual or perceived gender identity, or national origin, in the sale, lease or rental, or in the use of occupancy of such land or any improvements erected or to be erected thereon, and providing that Organization and the United States are beneficiaries of and entitled to enforce such covenant. Organization, in providing the services and work it is to provide, pursuant to this Agreement, agrees to take such measures as are necessary to enforce such covenant and will not itself so discriminate.
1.12 Interest of Certain Federal Officials. No member of, or Delegate to, the Congress of the United States, and no Resident Commissioner, shall be admitted to any share or part of this Agreement or to any benefit arising from same.
1.13 Conflict of Interest. Under 24 CFR Part 570.66, no officer, employee or agent of City or Organization who exercises any functions or responsibilities with respect to the CDBG Program or to the services and work to be performed by Organization pursuant to this Agreement, during such officer's, employee's or agent's tenure or D-9
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for one (1) year thereafter, shall have any interest, direct or indirect, in this Agreement or the proceeds thereof.
Organization shall incorporate or cause to be incorporated in every contract required to be in writing a provision prohibiting such interest pursuant to the purposes of this section.
1.14 Prohibition Against Payments of Bonuses or Commissions. The assistance provided under this Agreement shall not be used in the payment of any bonus or commission for the purpose of obtaining HUD approval of the application for such assistance, or HUD approval of applications for additional assistance, or any other approval or concurrence of HUD required under this Agreement, Title I of the Housing and Community Development Acts of 1974 or 1977, or HUD regulations with respect thereto; provided, however, that reasonable fees or bona fide technical, consultant, managerial or other such services, other than actual solicitation, are not hereby prohibited if otherwise eligible as program costs.
1.15 Copyrights. If this Agreement results in a book or other copyrightable material, the author is free to copyright the work, but HUD reserves a royalty-free, nonexclusive and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use, all copyrighted material and all material which can be copyrighted.
1.16 Patents. Any discovery or invention arising out of or developed in the course of work aided by this Agreement shall be promptly and fully reported to City and HUD for determination by HUD as to whether patent protection on such invention or discovery will be sought and how the rights in the invention or discovery, including the rights under any patent issued thereon, shall be disposed of and administered, in order to protect the public interest.
1.17 Political Activity.
a. Partisan Activity Prohibited. No funds provided in this Agreement shall be used for any partisan political activity or to further the election or defeat of any candidate for public office; nor shall they be used to provide services, or for the employment or assignment of personnel in a manner supporting or resulting in the identification of programs conducted pursuant to this Agreement with the following: (1) any partisan or nonpartisan political activity or any other political activity associated with a candidate, or contending faction or group, in an election for public or party office; (2) any activity to provide voters or prospective voters with transportation to the polls or similar assistance in connection with any such election; or (3) any voter registration activity.
Participants employed in the administration of the CDBG Plan and/or Program, and participants whose principal employment is in connection with an activity financed by the CDBG Program or its proceeds are subject to D-10
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limitation on political activities under the Hatch Act (5 U.S.C. 1502(a), 18 U.S.C. 595). All participants may take part in non-partisan activities outside working hours
b. Lobbying Prohibited.
i. No Federal appropriated funds have been paid or will be paid, by or on behalf of the Organization, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. ii. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the Organization shall complete and submit Standard Form LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
iii. The Organization shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
1.18 Guidelines on Church-Related Activities. In addition to, and not in substitution for, other provisions of this Agreement regarding the provision of public services with CDBG funds pursuant to Title I of the Housing and Community Development Act of 1974, as amended, the Organization agrees that, in connection with the public services performed under this Agreement:
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a. It will not discriminate against any employee or applicant for employment on the basis of religion and will not limit employment or give preference in employment to persons on the basis of religion;
b. It will not discriminate against any persons applying for public services on the basis of religion and will not limit such services or give preference to persons on the basis of religion; and,
c. It will provide no inherently religious activities, such as worship, religious instruction, or religious proselytizing, as part of the programs or services funded under this Agreement and will only conduct such activities in a separate time or place; and,
d. It will exert no other religious influence in the provision of public services and participation in religious activities by any beneficiaries of those services shall be voluntary; and,
e. The funds received under this Agreement shall not be used to construct, rehabilitate, or restore any facility which is owned by the Organization and in which the public services are to be provided, provided that, minor repairs may be made if such repairs (1) are directly in a structure used exclusively for nonreligious purposes, and (2) constitute in dollar terms only a minor portion of expenditure for the public services.
f. Construction or Rehabilitation of Facilities. Block grant fund recipients shall not use any funds to construct, rehabilitate, maintain, or restore religious structures (including those which may be historic properties) currently used for religious purposes. Block grant funds shall not be used to construct, rehabilitate, maintain, or restore structures or other real property owned by “pervasively sectarian” organizations. Block grant funds shall not be used to assist a religious organization in acquiring property. These prohibitions apply whether or not the property is used for religious services or instruction or is used in any other way for religious activities.
g. Public Services. Block grant funds may be used for the provision of public services under the following conditions:
i. The public services provided are exclusively non-religious in nature and scope; and,
ii. There are no religious services, proselytizing, instruction, or any other religious influences in connection with the public services; and, iii. There is no religious discrimination in terms of employment or benefits under the public services; and,
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iv. The CDBG funds may be used only for the provision of public services and not for the construction, rehabilitation or restoration of any facility owned by the religious organization where the services are to be provided. A narrow exception to this prohibition is that minor repairs may be made where such repairs (a) are directly related to the public services, (b) are located in a structure used exclusively for nonreligious purposes, and (c) constitute in dollar terms a minor portion of the CDBG expenditure for the public services.
1.19 Resident Aliens. (24 CFR § 570.613) Certain newly legalized aliens, as described in 24 CFR Part 49, are not eligible to apply for the benefits under covered activities funded by the CDBG Program. “Covered activities” are activities meeting the requirements of 24 CFR § 570.208(a) that either (1) have income eligibility requirements limiting benefits exclusively to low- and moderate-income persons, or (2) are targeted geographically or otherwise to primarily benefit low- and moderate-income persons (except for activities that benefit the public at large), and provide benefits on the basis of an application.
1.20 Environmental Requirements. (24 CFR § 470.604) Organization is not allowed to incur program expenses until the City has performed an environmental review of the proposed activities, received the release of funds, and provided the Organization with formal clearance to initiate them, along with directives for any action necessary to mitigate negative environmental impacts (24 CFR Part 58).
1.21 Historic Preservation. Organization shall not violate provisions of the Historic Preservation Act and related laws and Executive Orders. Before any commitments are made to make any physical improvements or alterations or demolition of any building, Organization shall receive assurances from the City that the Organization is in compliance.
1.22 If Organization receives State or City funds, Organization shall, in the use of those State or City funds adhere to the applicable Federal laws, regulations, policies, guidelines or requirements, herein specified, only insofar as adherence thereto would not be prohibited by valid City or State laws, regulations, policies, guidelines or requirements.
SECTION 2. FINANCIAL OBLIGATIONS OF ORGANIZATION
2.01 Fiscal Responsibilities of Organization. Organization agrees to comply with 2 CFR § 200.49 and agrees to adhere to the accounting principles and procedures required therein, utilize adequate internal controls, and maintain necessary source documentation for all costs incurred. Organization shall:
a. Appoint and submit to City, the name of a fiscal agent who shall be responsible for the financial and accounting activities of the Organization, including the receipt and disbursement of Organization funds.
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b. Establish and maintain a system of accounts that shall be in conformance with generally accepted principles of accounting for budgeted funds. Such system of accounts shall be subject to review and approval of City. c. Document all costs by maintaining complete and accurate records of all financial transactions, including but not limited to contracts, invoices, time cards, cash receipts, vouchers, cancelled checks, bank statements and/or other official documentation evidencing in proper detail the nature and propriety of all charges.
d. Submit to the City, within ten (10) working days of the end of the preceding month, requests for reimbursement, together with documentation required by City.
e. Perform an independent fiscal audit annually in conformance with the generally accepted standard accounting principles. Such audits must identify the total funds received and disbursed, and funds granted and expended relating to this Agreement, in a form sufficient to identify, track, and correlate such funds. The Costs for such audits shall be at Organization’s expense, unless otherwise provided for in this Agreement. Copies of the completed audits must be provided to the City.
f. Be liable for repayment of disallowed costs. Disallowed costs may be identified by the City through audits, monitoring, or other sources.
Organization shall be afforded the opportunity to respond to any adverse findings, which may lead to disallowed costs. The City shall make the final determination of disallowed costs, subject to provisions of 2 CFR Part 200. g. Administer all programs in conformance with 2 CFR Part 200 Subpart E, Cost Principles. These principles shall be applied for all costs incurred whether charged in a direct or indirect basis.
h. If indirect costs are charged, the Organization will develop an indirect cost allocation plan for determining the appropriate Organization’s share of administrative costs and shall submit such plan to the City for approval. i. Certify insurability subject to City approval as outlined in EXHIBIT C entitled “INSURANCE”.
j. Submit to HUD or City at such times and in such forms as HUD or City may require, such statements, records, reports, data, and information pertaining to matters covered by this Agreement.
k. Submit for approval by the City any lease agreement either contemplated or in effect, which would be funded under this Agreement.
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2.02 Records, Reports and Audits of Organization. Organization shall comply with all applicable federal Uniform Administrative Requirements as delineated in 24 CFR § 570.502:
a. Establishment and Maintenance of Records. Organization shall maintain records, including but not limited to, books, financial records, supporting documents, statistical records, personnel, property, and all other pertinent records sufficient to reflect properly:
i. All direct and indirect costs of whatever nature claimed to have been incurred and anticipated to be incurred to perform this Agreement, and ii. All other matters covered by this Agreement. Such records shall be maintained in accordance with requirements now or hereafter prescribed by the City.
b. Preservation of Records. Organization shall preserve and make available its records:
i. For the period of five (5) years from the date of final payment to Organization under this Agreement; or,
ii. For such longer period, if any, as may be required by applicable law; or,
iii. If this Agreement is completely or partially terminated, for a period of five (5) years from the date of any resulting final settlement. c. Records to be Maintained. The subrecipient shall maintain all records required by the Federal regulations specified in 24 CFR § 570.506, that are pertinent to the activities to be funded under this Agreement. Such records shall include but not be limited to:
i. Records providing a full description of each activity undertaken; and, ii. Records demonstrating that each activity undertaken meets one of the National Objectives of the CDBG Program; and,
iii. Records required to determine the eligibility of activities; and, iv. Records required to document the acquisition, improvement, use or disposition of real property acquired or improved with CDBG assistance; and,
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v. Records documenting compliance with the fair housing and equal opportunity components of the CDBG Program; and,
vi. Financial records as required by 24 CFR § 570.502 and 2 CFR Part 200; and,
vii. Other records necessary to document compliance with Subpart K of 24 CFR Part 570.
d. Examination of Records; Facilities. At any time during normal business hours, and as often as may be deemed necessary, Organization agrees that HUD and/or City, and/or any of their respective authorized representatives shall:
i. For a period of five (5) years after final payment under this Agreement; or,
ii. For such longer period as may be required by applicable law; or, iii. If this Agreement is completely or partially terminated, for a period of five (5) years from date of any resulting settlement; or iv. Have access to and the right to examine its plants, offices, and facilities engaged in performance of this Agreement and all its records with respect to all matters covered by this Agreement. Organization also agrees that HUD and/or City, or any of their respective authorized representatives shall have the right to audit, examine, and make excerpts or transcripts of and from such records, and to make audits of all contracts and subcontracts, invoices, payrolls, records of personnel, conditions of employment, materials, and all other data relating to matters covered by this Agreement. Notwithstanding anything in this Agreement to the contrary for monitoring purposes, City shall not require access to any information of Organization mutually determined by the parties hereto to be proprietary. e. Audits. 2 CFR § 200.500 sets forth standards for obtaining consistency and uniformity among Federal agencies for the audit of non-Federal entities expending Federal awards.
i. Funds may be set aside in Organization’s budget in an amount equal to City’s fair share of Organization’s cost of an independent audit, if required, with prior approval from City. A separate line item will be established.
ii. Organization shall enter into an agreement with an independent public accountant certified to practice in the State of California no later than sixty (60) days before the end of this Agreement calling for an audit to D-16
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be done for the entire year. The audit must be in conformance with the applicable funding source.
iii. The audit must be completed and sent to the City’s Department of Housing staff within one hundred fifty (150) days from the end of Organization’s fiscal year.
iv. Audit Standards. The independent fiscal audit shall conform to generally accepted governmental auditing principles. Such audits shall identify the funds received and disbursed under this Agreement and include the following components:
(a) Balance Sheet or Statement of Financial Position;
(b) Statement of Support, Revenue, and Expenses and Changes in Fund Balances or Statement Activities;
(c) Statement of Functional Expenses;
(d) Statement of Auditor’s Report;
(e) Communication of Internal Control Related Matters Identified in an Audit (Management Letter) from Auditor;
(f) Organization shall also submit to the agency a written management response to the findings of the Internal Control Matters.
f. Single Audits. 2 CFR § 200.501 states that Organizations that expend $750,000 or more of Federal financial assistance in a fiscal year (in aggregate, from all funding sources), in addition to conducting normal financial audit procedures, the Organization’s independent public accountant certified to practice in the State of California shall perform tests to ascertain that:
i. Expenditures submitted for reimbursement are allowable under 2 CFR Part 200; and,
ii. Expenditures are in compliance with the grant agreements between the City and Organization; and,
iii. Applicable laws and regulations. Further, the independent public accountant certified to practice in the State of California shall render an opinion as to whether the Expenditures complied with the Single Audit Act of 1984 and Appendix XI to 2 CFR Part 200 — Compliance Supplement;
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iv. The single audit must include the following components:
(a) Balance Sheet or Statement of Financial Position;
(b) Statement of Support, Revenue and Expenses and Changes in Fund Balances or Statement Activities;
(c) Statement of Functional Expenses
(d) Schedule of Expenditures of Federal Awards;
(e) Independent Auditor’s Report on the Financial Statement and Schedule of Expenditures of Federal Awards;
(f) Auditor’s Report on Internal Control over Financial Reporting and on Compliance and Other Matters;
(g) Auditor’s Report on Compliance with Requirements Applicable to Major Programs and on Internal Control over Compliance; (h) Schedule of Findings and Questioned Costs;
(i) Summary of Schedule of Prior Audit Findings;
(j) Corrective Action Plan;
(k) Data Collection Form.
g. Organization’s independent public accountant, certified to practice in the State of California, shall perform reviews of Organization internal control systems and Organization’s compliance with applicable laws, regulations and requirements of this Agreement.
The independent public accountant shall issue a report on the financial statements and the Schedule of Governmental Financial Assistance, a report on the study and evaluation of internal controls and a report on Organization compliance. The three reports may be bound into a single report or presented at the same time as separate documents.
h. Should Organization not enter into an agreement with an independent public accountant certified to practice in the State of California, or should an audit not be done on a timely basis, City, at its sole discretion, may enter into an agreement with an independent public accountant certified to practice in the State of California to perform the audit.
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
i. City Audits. City may perform an independent audit. Such audits may cover program as well as fiscal matters. Organization will be afforded an opportunity to respond to any audit findings and have the responses included in the final audit report. Costs of such audits will be borne by City. j. Disallowed Costs. Organization is liable for repayment of disallowed costs as determined by City, in its sole discretion, and/or HUD. Disallowed costs may be identified through audits, monitoring or other sources. Organization shall be afforded the opportunity to respond to any adverse findings which may lead to disallowed costs. Director shall make the final determination of disallowed costs, subject to provisions of 2 CFR Part 200 and applicable HUD regulations.
SECTION 3. OTHER REQUIREMENTS OF GRANTEE
3.01 Client Data. The Organization shall maintain client data demonstrating client eligibility for services provided. Such data shall include, but not be limited to, client name, address, income level or other basis for determining eligibility, and description of service provided. Such information shall be made available to City monitors or their designees for review upon request.
3.02 Disclosure. The Organization understands that client information collected under this Agreement is private and the use or disclosure of such information, when not directly connected with the administration of the Organization’s or subrecipient’s responsibilities with respect to services provided under this Agreement, is prohibited unless written consent is obtained from such person receiving service and, in the case of a minor, that of a responsible parent/guardian.
To the extent allowed under law, City agrees to maintain the confidentiality of any information regarding applicants for services offered by the Program pursuant to this Agreement or their immediate families which may be obtained through application forms, interviews, tests, reports, from public agencies or counselors, or any other source. Without the written permission of the applicant, such information shall be divulged only as necessary for purposes related to the performance or evaluation of the services and work to be provided pursuant to this Agreement, and then only to persons having responsibilities under the Agreement, including those furnishing services under the Program through subcontracts.
3.03 Close-outs. The subrecipient’s obligation to the City shall not end until all closeout requirements are completed pursuant to 24 CFR § 570.509. Activities during this close-out period shall include, but are not limited to: making final payments, disposing of program assets (including the return of all unused materials, equipment, unspent cash advances, program income balances, and accounts receivable to the City), and determining the custodianship of records.
Notwithstanding the foregoing, the terms of this Agreement shall remain in effect during any period that the subrecipient has control over CDBG funds, including program income.
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
3.04 Program Income. The Organization shall report all program income (as defined at 24 CFR § 570.500(a)) generated by activities carried out with CDBG funds made available under this Agreement. The use of program income by the subrecipient shall comply with the requirements set forth at 24 CFR § 570.504. By way of further limitations, the subrecipient may use such income during the contract period for activities permitted under this Agreement and shall reduce requests for additional funds by the amount of any such program income balances on hand. All unexpended program income shall be returned to the City at the end of the contract period. Any interest earned on cash advances from the U.S. Treasury and from funds held in a revolving fund account is not program income and shall be remitted promptly to the City.
3.05 Indirect Costs. If indirect costs are charged, the Organization will develop an indirect cost allocation plan for determining the appropriate Organization’s share of administrative costs and shall submit such plan to the City for approval, in a form specified by the City.
3.06 Use and Reversion of Assets. The use and disposition of real property and equipment under this Agreement shall be in compliance with the requirements of 2 CFR Part 200 and 24 CFR §§ 570.502, 570.503, and 570.504, as applicable, which include but are not limited to the following:
a. The subrecipient shall transfer to the City any CDBG funds on hand and any accounts receivable attributable to the use of funds under this Agreement at the time of expiration, cancellation, or termination.
b. Real property under the subrecipient’s control that was acquired or improved, in whole or in part, with funds under this Agreement in excess of $25,000 shall be used to meet one of the CDBG National Objectives pursuant to 24 CFR § 570.208 until five (5) years after expiration of this Agreement or such longer period of time as the City deems appropriate. If the Organization fails to use CDBG-assisted real property in a manner that meets a CDBG National Objective for the prescribed period of time, the subrecipient shall pay the City an amount equal to the current fair market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvement to, the property. Such payment shall constitute program income to the City. The subrecipient may retain real property acquired or improved under this Agreement after the expiration of the five-year period or such longer period of time as the City deems appropriate. c. In all cases in which equipment acquired, in whole or in part, with funds under this Agreement is sold, the proceeds shall be program income (prorated to reflect the extent to that funds received under this Agreement were used to acquire the equipment). Equipment not needed by the subrecipient for activities under this Agreement shall be (a) transferred to the City for the D-20
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CDBG Program or (b) retained after compensating the City an amount equal to the current fair market value of the equipment less the percentage of nonCDBG funds used to acquire the equipment.
3.07 Hatch Act. The Organization agrees that no funds provided, nor personnel employed under this Agreement, shall be in any way or to any extent engaged in the conduct of political activities in violation of Chapter 15 of Title V of the U.S.C.
3.08 HMIS Participation. All agencies providing homeless services in receipt of funding from the City’s CDBG Program are required to fully participate in the Homeless Management Information System (“HMIS”) and work closely with the County of Santa Clara Office of Supportive Housing (“CSC OSH”), to ensure the agency has the mechanisms and staffing in place to use the system appropriately and in a timely manner. Funded agencies are required to collect demographic information on all clients served by the funded projects, the services provided, and consent to release the information to CSC OSH and the City’s Housing and Community Services Division.
Funded projects must utilize all appropriate aspects of HMIS in order to generate the statistical information required for reporting to the City on all universal and program level elements of the HUD Data Standards. These statistical reports must be generated directly out of HMIS. No adjustments to the HMIS reports will be accepted and it is therefore incumbent on the agency to ensure that the information they put into HMIS is accurate and up to date. City will measure performance and outcomes relating to these funded projects through the use of the HMIS statistical data, based on the HUD data elements, or other reporting requirements as determined by the City. The City will request from the HMIS Administrator, acknowledgement of the recipient agencies’ certificate of compliance with HUD privacy and security standards, acknowledgement of use of the Shelter Point program, and statistics on the percentage of Universal and Top Level Program data captured.
3.09 Language Access Plan (LAP). Organization shall fully implement and comply with the Language Access Plan (“LAP”) as approved by City to ensure that limited English proficient clients have equal access to community programs and services.
3.10 Organization shall include in all outreach and marketing materials, including public websites, an affirmative statement that it will provide services or benefits to all persons, race, sex, color, age, religion, actual or perceived gender identity, sexual orientation, disability, ethnic or national origin, or familial status.
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT E
ETHICAL STANDARDS FOR CONTRACTORS SEEKING TO ENTER INTO
AN AGREEMENT WITH THE CITY OF SANTA CLARA, CALIFORNIA, AND
AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS
1.01 Ethical Standards For Contractors.
Termination of Agreement for Certain Acts.
A. The City may, at its sole discretion, terminate this Agreement in the event any one or more of the following occurs:
1. If a Contractor1 does any of the following:
a. Is convicted2 of operating a business in violation of any Federal, State or local law or regulation.
b. Is convicted of a crime punishable as a felony involving dishonesty3;
c. Is convicted of an offense involving dishonesty or is convicted of fraud or a criminal offense in connection with: (1) obtaining; (2) attempting to obtain; or, (3) performing a public contract or subcontract;
d. Is convicted of any offense which indicates a lack of business integrity or business honesty which seriously and directly affects the present responsibility of a city contractor or subcontractor; and/or,
1For purposes of this Agreement, the word “Consultant” (whether a person or a legal entity) also refers to “Contractor” and means any of the following: an owner or co-owner of a sole proprietorship; a person who controls or who has the power to control a business entity; a general partner of a partnership; a principal in a joint venture; or a primary corporate stockholder [i.e., a person who owns more than ten percent (10%) of the outstanding stock of a corporation] and who is active in the day to day operations of that corporation. 2 For purposes of this Agreement, the words “convicted” or “conviction” mean a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere within the past five (5) years. 3 As used herein, “dishonesty” includes, but is not limited to, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, failure to pay tax obligations, receiving stolen property, collusion or conspiracy.
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e. Made (or makes) any false statement(s) or representation(s) with respect to this Agreement.
2. If fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee or other individual associated with the Contractor can be imputed to the Contractor when the conduct occurred in connection with the individual’s performance of duties for or on behalf of the Contractor, with the Contractor’s knowledge, approval or acquiescence, the Contractor’s acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence.
B. The city may also terminate this Agreement in the event any one or more of the following occurs:
1. The City determines that Contractor no longer has the financial capability4 or business experience5to perform the terms of, or operate under, this Agreement; or,
2. If City determines that the Contractor fails to submit information, or submits false information, which is required to perform or be awarded a contract with City, including, but not limited to, Contractor’s failure to maintain a required State issued license, failure to obtain a City business license (if applicable) or failure to provide and maintain bonds and/or insurance policies required under this Agreement.
C. In the event a prospective Contractor (or bidder) is ruled ineligible (debarred) to participate in a contract award process or a contract is terminated pursuant to these provisions, Contractor may appeal the City’s action to the City Council by filing a written request with the City Clerk within ten (10) days of the notice given by City to have the matter heard. The matter will be heard within thirty (30) days of the filing of the appeal request with the City Clerk. The Contractor will have the burden of proof on the appeal. The Contractor shall have the opportunity to present evidence, both oral and documentary, and argument.
4Contractor becomes insolvent, transfers assets in fraud of creditors, makes an assignment for the benefit of creditors, files a petition under any section or chapter of the federal Bankruptcy Code (11 U.S.C.), as amended, or under any similar law or statute of the United States or any state thereof, is adjudged bankrupt or insolvent in proceedings under such laws, or a receiver or trustee is appointed for all or substantially all of the assets of Contractor.
5Loss of personnel deemed essential by the City for the successful performance of the obligations of the Contractor to the City.
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AFFIDAVIT OF COMPLIANCE WITH ETHICAL STANDARDS
I hereby state that I have read and understand the language, entitled “Ethical Standards” set forth in Exhibit E. I have the authority to make these representations on my own behalf or on behalf of the legal entity identified herein. I have examined appropriate business records, and I have made appropriate inquiry of those individuals potentially included within the definition of “Contractor” contained in Ethical Standards at footnote 1.
Based on my review of the appropriate documents and my good-faith review of the necessary inquiry responses, I hereby state that neither the business entity nor any individual(s) belonging to said “Contractor” category [i.e., owner or co-owner of a sole proprietorship, general partner, person who controls or has power to control a business entity, etc.] has been convicted of any one or more of the crimes identified in the Ethical Standards within the past five (5) years.
The above assertions are true and correct and are made under penalty of perjury under the laws of the State of California.
RIVERWOOD GROVE ASSOCIATES
a California non-profit corporation
By: MP Santa Clara Inc.,
A California non-profit public benefit corporation,
Its General Partner
By:
Signature of Authorized Person or Representative
Name: Michael J. Vergura
Title: Assistant Secretary
ORGANIZATION
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NOTARY’S ACKNOWLEDGMENT TO BE ATTACHED
Please execute the affidavit and attach a notary public’s acknowledgment of execution of the affidavit by the signatory. If the affidavit is on behalf of a corporation, partnership, or other legal entity, the entity’s complete legal name and the title of the person signing on behalf of the legal entity shall appear above. Written evidence of the authority of the person executing this affidavit on behalf of a corporation, partnership, joint venture, or any other legal entity, other than a sole proprietorship, shall be attached.
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT F
GUIDELINES FOR MINORITY-OWNED AND WOMEN-OWNED
BUSINESS ENTERPRISES (MBE/WBE)
Section 281 of the National Affordable Housing Act requires each contractor to prescribe procedures to establish and oversee a minority outreach program for the receipt of all federal housing and community development funds including CDBG, HOME, HOPWA, ESG, Section 108, and BEDI grants.
The program shall include minority and women-owned businesses in all contracting activities entered into by the contractor to facilitate the provision of affordable housing authorized under this Act or any other federal housing law applicable to such jurisdiction.
Definitions:
The City: The primary Organization of federal housing and community development funds is the City of Santa Clara.
Developer/Contractor/ Subrecipient: The individual, company, corporation, partnership, business, or other entity that enters into a contract with the City of Santa Clara to carry out the work, service, or project specified in connection with receiving a federal HUD grant.
Subcontractor: Any entity which has agreed to undertake a portion of the developer/contractor/ subrecipient general contract.
Minority-Owned Business Enterprise (MBE): Business primarily (51%) owned, operated, and controlled by one or more members of the following race/ethnicity: Pacific Islander, American Native, African American/Black, American Indian/Alaskan Native, Hawaiian/Pacific Islander, Asian, or Hispanic. Women-Owned Business Enterprise (WBE): Primarily (51%) owned by one or more females.
Required Program Participants’ Responsibility:
1 The City will ensure that when soliciting bids for service, construction, or maintaining “contractor lists” for developers/contractor/ subrecipient, the City will use the outreach provisions described under “Outreach Criteria.” 2 The City will require its developers/contractors/ subrecipient to carry out the provisions of MBE/WBE when soliciting bids of subcontractors.
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Applicability:
When the City makes a grant to a developer/contractor/ subrecipient for services or construction.
When a developer/contractor/subrecipient’s subcontracts for services or construction.
When the grant received by the developer/contractor/ subrecipient, or subcontractor exceeds $10,000.
When the developer/contractor/ subrecipients or subcontractor is a for-profit organization/business, or a nonprofit hire a for-profit subcontractor.
Steps to Meeting the Reporting Requirements:
1. If applicable, each developer/contractor/ subrecipient will need to self-certify to the city whether it is an MBE/WBE. A form will be provided to each agency awarded funds and reported annually by the developer/contractor/ subrecipients.
2. Each developer/contractor/ subrecipient will ensure that every subcontractor also self-certifies whether it is a MBE/WBE and this information is reported annually.
3. The city will follow the guidelines for “Outreach” when soliciting bids for developer/contractor/ subrecipient.
4. Each developer/contractor/ subrecipient will follow the guidelines for “Outreach” when soliciting bids for subcontractors and will report these efforts annually to the City.
Required Outreach Criteria:
The Housing and Community Services Division will maintain a list of local MBE/WBE companies and addresses and distribute to all
developers/contractors/ subrecipients.
When developers/contractors/ subrecipient are soliciting bids from subcontractors, they will include in any notice to local newspaper that “Women and Minority Owned Businesses are strongly encouraged to apply.” Developers/contractors/subcontractors, when feasible, are strongly encouraged to consider posting in Spanish and Vietnamese newspapers. When the Housing and Community Services Division announces Notices of Funding Availability or Community Development Block Grants application availability, efforts will be made to include in local newspaper posting that “Women and Minority Owned Businesses are strongly encouraged to apply” and printed, when feasible, in Spanish and Vietnamese newspapers.
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
MINORITY BUSINESS-OWNER ENTERPRIZE/
WOMEN BUSINESS-OWNER ENTERPRIZE (MBE/WBE)
(List of Prime and Subcontractor)
Grantee/ Contractor Name:
Project Number & Project Name:
Contact Person: Phone #:
Reporting Period:
Oct.1. 20_ _ - Sept 30, 20_ _
Program Code:
Project # or HUD # or dwelling unit #Prime or Subcontractor (P or S) Prime or Subs
Name
Prime/Sub.
Address
(City/State/ Zip)
Amount of Prime or Sub. Contract Type of Trade Code (Select Code# below) 7a. Prime or Subs.Business Racial/Ethnic (See Code # below) 7b. Woman Owned Business (Yes or No) 7c. Sec. 3 (Yes/No) 7d. Prime or Sub (ID # / Lics. #) .
7a: Type of Trade Codes: (Select
One)
1 = New Construction
2 = Substantial Rehab.
3 = Repair
4 = Service
5 = Management
6 = Professional
7 = Tenant Services
8 = Education/Training
9 = Architect/Engineer
10 = Other
7b: Racial/Ethnic Codes: (select one)
1 = White Americans
2 = Black Americans
3 = Native Americans
4 = Hispanic Americans
5 = Asian/Pacific Ameri.
6 = Hasidic Jews
7c: MBE/WBE: (Yes/No)
• MBE: Business primarily (51%) owned, operated and
controlled by one or more members of the following
race/ethnicity: Pacific Islander, American Native, African American/Black, American Indian/Alaskan Native,
Hawaiian/Pacific Islander, Asian, or Hispanic.
• WBE: Primarily owned (51%) by one or more females.
7d. Sec 3 businesses: Those individuals, companies,
corporations, partnerships, businesses, or other entities that are 51% or more owned by persons residing within
the Section 3 area.
5: Program Codes
(Complete for Housing
and Public and Indian
Housing programs only):
5 = Section 202
6 = HUD-Held
(Management)
7 = Public/India Housing
8 = Section 811
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT G
SECTION 3 GUIDELINES
Responsibilities and Procedures for Carrying Out the Requirements Under Section 3 of the Housing and Urban Development Act of 1968 Pertaining to Employment Opportunities for Lower-Income Persons.
Purpose:
To ensure that, to the greatest extent feasible, projects financed by the United States Department of Housing and Urban Development (HUD) provide lower-income residents within the city the opportunity for employment and training. Additionally, the policy should ensure that awards are made to businesses located or owned by persons residing within the City.
Definitions:
The City: The primary Organization of federal housing and community development funds is the City of Santa Clara.
Developer/Contractor/ subrecipient: The individual, company, corporation, partnership, business, or other entity that enters into a contract with the City of Santa Clara to carrying out the work, service, or project specified in connection with receiving a federal HUD grant.
Subcontractor: Any entity which has agreed to undertake a portion of the developer/contractor/ subcontractor general contract.
Section 3 Area: Is the entirety of the area located within the incorporated boundaries of the City of Santa Clara.
Section 3 resident: An individual who resides in the Section 3 area whose family income does not exceed 80% of the area median income (AMI), or is a resident of public housing, or is a person with disabilities.
Section 3 businesses: Those individuals, companies, corporations, partnerships, businesses, or other entities that are 51% or more owned by persons residing within the Section 3 area.
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Required Program Participants’ Responsibility:
The City will ensure that when contracting with developers, contractors, or subrecipient, the City will use the outreach provisions described under “Outreach Criteria.”
The City will require its developers/contractors/subrecipients to carry out the provisions of MBE/WBE when soliciting bids of subcontractors.
Applicability:
The grant from the city to the developer, contractor, or subrecipient is for housing rehabilitation, housing construction, or other public construction projects; and When a developer, contractor, or subrecipient receives a federal HUD grant in excess of $200,000 from the city; or
A subcontractor receives a grant in excess of $100,000.
Steps to Meeting the Reporting Requirements:
1. If applicable, each developer, contractor, or subrecipient, and each subcontractor must self-certify whether they are a Section 3 business, employs Section 3 residents, or subcontracts with business that provide opportunities to low and very low-income persons. A form will be provided by the Housing and Community Services to each eligible developer, contractor, or subcontractor which will be requested to be completed annually.
2. Each developer, contractor, or subrecipient must attempt to recruit and hire Section 3 residents or subcontract with Section 3 businesses if it finds the need for additional staff to complete the project.
3. Developers, contractors, and subrecipients, who receive HUD funding, shall seek to participate in a HUD program or other programs that promote training and education of Section 3 residents. A form will be provided by the Housing and Community Services to each eligible developer, contractor, or subcontractor, which will be requested to be completed annually.
Required Outreach Criteria:
When hiring, it is required of all developers, contractors, or subrecipient and subcontractors to attempt to recruit Section 3 residents through local media and advertisement; signs placed at the job site; and notifying community/public/private agencies that work with low-income people.
When developers, contractors, or subrecipient are subcontracting, they should seek to recruit Section 3 businesses.
Developers, contractors, and subrecipient, who receive HUD funding, must seek to participate in a HUD program or other program that promotes training and education of Section 3 residents.
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
Goals:
The city will develop goals for the hiring, training, and recruiting of Section 3 businesses and residents once implementation and data can be collected from current Organizations. These goals will be incorporated into the City’s Section 3 Plan.
Section 3 Tracking Labor Hours Report
Labor
Hours
Calculated
%
Safe Harbor
Benchmark Met
Total Labor Hours
Section 3 Worker Hours #DIV/0!
Section 3 Target Worker Hours #DIV/0!
0 NOTES
*Section 3 Worker Hours: A Section 3 Worker for CPD programs is a worker who currently fits or, when hired within the past five years, fits at least one of the following categories:
(1) Is a low or very low-income worker that met HUD Income limits in the previous calendar year (2) Is employed by a Section 3 business concern (defined 24 CFR 75.5 (3) Is a YouthBuild participant.
**Sect 3 Target Worker Hours: A Target Section 3 worker for CPD programs is a worker who meets the definition of a Section 3 worker plus one of the following:
(1) Is a worker employed by a Section 3 business concern (defined 24 CFR 75.5) (2) Or, when hired, fit at least one of the following categories, as documented within the past five years:
a. Living within the service area or the neighborhood of the project (defined 24 CFR 75.5) b. A YouthBuild participant
* If a CPD=assisted Section 3 project is combined with public housing financial assistance, the grantee has the option under 24 CFR 75.29 of following the public housing definition of Targeted Section 3 worker at 24 CFR 75.11 Nature of Agency Efforts
This section is required if, based on the labor hours reporting above, the reporting agency did not meet the safe harbor benchmarks.
Check all that apply. Maintain records for HUD review documented efforts ___ Outreach efforts to generate job applicants who are Public Housing Targeted Workers ___ Outreach efforts to generate job applicants who are Other Funding Targeted Workers. ___ Direct, on-the job training (including apprenticeships). ___ Indirect training such as arranging for, contracting for, or paying tuition for, off-site training. ___ Technical assistance to help Section 3 workers compete for jobs (e.g., resume assistance, coaching).
___ Outreach efforts to identify and secure bids from Section 3 business concerns. ___ Technical assistance to help Section 3 business concerns understand and bid on contracts. ___ Division of contracts into smaller jobs to facilitate participation by Section 3 business concerns. ___ Provided or connected residents with assistance in seeking employment including: drafting resumes, preparing for interviews, finding job opportunities, connecting residents to job placement services.
___ Held one or more job fairs.
Provided or connected residents with supportive services that can provide direct services or referrals.
___ Assisted residents with finding childcare.
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT H
AFFORDABILITY RESTRICTION AGREEMENT
This Use Agreement and Covenant (“Covenant”) is entered by Riverwood Grove Associates(“Owner”) for the benefit of the City- of Santa Clara (“City”) on the terms and conditions set forth below.
RECITALS
A. Owner is the owner of certain real property located at 2150 Tasman Drive in the City of Santa Clara, County of Santa Clara, State of California, as more particularly described in the attached ATTACHMENT A (“Property Description”).
B. Pursuant to Grant Agreement CDI-23-C02, with an end date June 30, 2035, City has made a grant of Community Development Block Grant (“CDBG”) funds (the “Grant Award”) to the Owner for Improvements (as defined in Section 1 below) to the Property,
C. Pursuant to 24 CFR 570.208, activities funded with grants of CDBG funds must meet one of the CDBG program’s three broad National Objectives: benefit lowand moderate-income households, aid in the prevention or elimination of slums or blight conditions or meet community development needs having a particular urgency.
D. The National Objective to benefit low- and moderate-income persons may be met by an activity that benefits a limited clientele, at least 51 percent of whom are lowand moderate-income persons (“Limited Clientele”).
E. Pursuant to 24 CFR 570.505, where CDBG funds in excess of $25,000 are used to acquire or improve a grantee’s property, or portion thereof, that property must be used to meet the National Objective for a period of five (5) years after the grant expires. The City is extending to a total of ten (10) years after the grant expires.
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
F. Consistent with 2 CFR 200 and 24 CFR 570.502, 570.503, and 570.505, as applicable, and as a condition of disbursement of CDBG funds, the Owner is required to maintain the Improvements and to maintain the intended use on the Property as described herein.
G. As a condition of the Grant Award, the City has required the Owner to execute and record a deed of trust with assignment of rents, including exhibits thereto, which incorporate by reference this Affordability Restriction Agreement requiring the maintenance of this use against the Property.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the Owner agrees as follows:
1. IMPROVEMENTS
Pursuant to the Grant Award, the City of Santa Clara has made available CDBG funds for the following improvements on the Property: Upgrading main and sub electrical panels on the property.
2. USE COVENANT
The Owner agrees that Improvements shall be used in accordance with their planned use (i.e., improvements to an affordable multi-family residential development with incomes at or below 80% AMI) (collectively, the “CDBG Use”) for the duration of the term of this Covenant. Owner agrees to maintain the CDBG Use in accordance with all applicable CDBG program requirements for the term of this Covenant. The Grant Award is conditioned upon the Owner maintaining the CDBG Use for a period not less than ten (10) years.
Owner hereby warrants, represents, and agrees that it shall not interfere with, terminate, or otherwise discontinue the CDBG Use during the term of this Covenant. If Owner terminates or otherwise suspends the CDBG Use during the first (1st) year of the term of this Covenant, the Owner agrees it shall be immediately obligated to refund to City all of the Grant Award funds, unless the City and the Owner otherwise agree in writing. If Owner terminates or otherwise suspends the CDBG Use between the second (2nd) and the tenth (10th) years of the Term, Owner agrees it shall be immediately obligated to refund to CITY a pro- H-3
Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
rated portion of the Grant Award funds unless the City and the Owner otherwise agree in writing.
3. TERM
This Covenant shall expire on the Affordability Restriction Agreement end date of the Grant Award. Until the 10th anniversary of the end date of the Grant Award, the Covenant shall be for the benefit of City and the U.S. Department of Housing and Urban Development (“HUD”).
4. MAINTENANCE COVENANT
The Owner shall maintain the Improvements and the portion of the Property where they are located consistent with CDBG rules, The Owner shall not make or allow any changes thereto that would prevent the use of Improvements for the activities described in Section 2. On an annual basis, the Owner shall submit to the City a certificate of self-insurance or other proof of adequate property insurance.
5. RUNS WITH THE LAND
The Owner hereby declares its understanding and intent that:
(i) The covenants and restrictions contained herein shall be construed as covenants running with the land pursuant to California Civil Code section 1468 and not as conditions which might result in forfeiture of title by Owner; and,
(ii) The burden of the covenants and restrictions set forth in this Covenant touch and concern the interest in the Property in that the Owner’s legal interest in the Property; and,
(iii) The benefit of the covenants and restrictions set forth in this Covenant touch and concern the Property by enhancing and increasing the enjoyment and use of the Property by low and moderate-income residents of the community, the intended beneficiaries of such covenants and restrictions.
All covenants and restrictions contained herein without regard to technical classification or designation shall be binding upon the Owner and its successors H-4
Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
in interest for the benefit of the city, and such covenants and restrictions shall run in favor of such the City for the entire period during which such covenants and restrictions shall be in force and effect, without regard to whether the City is an owner of any land or interest therein to which such covenant and restrictions relate.
6. NON-DISCRIMINATION
The Grant Award is subject to the requirements of Title VI of the Civil Rights Act of 1964 (P. L. 88-352) and 24 CFR 570.601 and 570.602. In regard to the sale, lease, or other transfer of land acquired, cleared or improved with assistance provided under the Grant Award, the Owner shall cause or require a covenant running with the land to be inserted in the deed or lease for such transfer, prohibiting discrimination upon the basis of race, color, religion, sex, sexual orientation, actual or perceived gender identity, or national origin, in the sale, lease or rental, or in tire use or occupancy of such land, or in any improvements erected or to be erected thereon, providing that the City and the United States are beneficiaries of and entitled to enforce such covenants.
7. REMEDIES
In the event of any breach of any of the covenants or restrictions set forth herein (a ‘''Default”), the City shall have the right to exercise all the rights and remedies, and to maintain any action at law or suits in equity or other real property proceeding. No delay in enforcing the provisions hereof as to any breach or violation shall impair, damage or waive the right of the City to enforce the provisions hereof in the future for any continuing or new breach or violation of any of the covenants or restrictions contained in this Covenant. All rights and remedies, including without limitation, any action to obtain repayment of the Grant Award, of any party legally entitled to enforce this Covenant, shall be cumulative and the exercise of any such right or remedy shall not impair or prejudice and shall not be a waiver of the right to exercise any other such rights and remedies.
8. NOTICES
Any notice or submittal required or permitted to be given to the City under this Covenant shall be in writing and personally served or sent by U.S. Mail, postage prepaid, addressed as follows:
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
To City: City of Santa Clara
c/o Housing and Community Services
1500 Warburton Avenue
Santa Clara, CA 95050
9. RECITALS AND EXHIBITS
Attachment A: For Exhibit H – Affordability Restriction Agreement The above recitals and the attached exhibits are hereby incorporated and made a part of this Covenant.
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
Attachment A
(For Exhibit H-Use Agreement)
Property Legal Description
Owner Name: RIVERWOOD GROVE ASSOCIATES
The land referred to is situated in the County of Santa Clara, City of Santa Clara, State of California, and is described as follows:
PARCEL 1, so designated and delineated on the Parcel Map recorded February 22, 2001 in Book
737 of Maps, Pages 19 and 20, Santa Clara County Records.
APN: 097-05-108
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
IN WITNESS WHERE OF, the Organization has executed this Covenant as of the date below
OWNER/ORGANIZATION:
RIVERWOOD GROVE ASSOCIATES,
a California non-profit corporation
By: MP Santa Clara Inc.
A California non-profit public benefit corporation,
Its General Partner
By: Michael J. Vergura
Title: Assistant Secretary
Address: 303 Vintage Park Drive, Suite 250
Foster City. CA 94404
Date: _________________
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT I
PROMISSORY NOTE
SECURED BY DEED OF TRUST
Riverwood Grove Energy Improvements Project
$350,000 Santa Clara, California
_______ _____, 2023
FOR VALUE RECEIVED, the undersigned, RIVERWOOD GROVE ASSOCIATES, a California nonprofit corporation (“Owner”) promises to pay to the CITY OF SANTA CLARA, a Chartered California Municipal Corporation, (the “City”) at 1500 Warburton Avenue, Santa Clara, CA 95050, or such other place as the City may from time to time designate in writing, the principal sum of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000).
This Note, along with the agreement by and between the City of Santa Clara and RIVERWOOD GROVE ASSOCIATES, to carry out Riverwood Grove Energy Improvements for the 2023- 24 program year, as may be amended from time to time, (the “Grant Agreement”), is secured by a deed of trust with assignment of rents of even date herewith to be recorded in the Official Records of the City of Santa Clara (“Deed of Trust”) which encumbers the Property (APN 097-05-108) located at 2150 Tasman Drive, in the City of Santa Clara, as more particularly described in Exhibit A to the Deed of Trust.
In addition to this Note, the terms and conditions of the indebtedness evidenced by this Note are set forth in the Deed of Trust, and the Grant Agreement (collectively the “Grant Documents”). Except where expressly stated otherwise, if there is any conflict between this Note, on the one hand, and the Grant Loan Documents, on the other, this Note shall control.
1. Interest. The principal sum of this Note shall not accrue interest.
2. Payment. The entire unpaid balance of principal and interest shall be due and payable in the event of a default under the Loan Documents occurring by the Tenth Anniversary of the recordation of the Deed of Trust, or as extended by an amendment to the Agreement. If such a I-2
Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
default has not occurred by this date, the Loan shall convert to a grant, the Owner shall be entitled to request a reconveyance of the Deed of Trust and cancellation of this Note. After the reconveyance of the Deed of Trust, the Owner shall have no further obligation under the Grant Documents.
BORROWER HEREBY ACKNOWLEDGES AND UNDERSTANDS THAT THE ENITRE
PRINCIPAL SUM OF THE PROMISSORY NOTE MAY BE UNPAID AND DUE AND PAYBLE ON THE MATURITY DATE.
3. Acceleration of Obligation
3.1 All unpaid principal, plus any applicable foes or charges due under this Note, or the Grant Documents, shall, at the option of the City, be immediately due and payable, time being of the essence, if during the term of this Note there occurs any of the following:
(a) The violation by Borrower of any covenant or provision required to be performed by Borrower under the terms of this Note, or the Loan Documents, or the occurrence of any event of default under any of such documents; or
(b) The voluntary or involuntary (including by operation of law), sale, transfer, lease, pledge, encumbrance, creation of a security interest in, or otherwise hypothecation or alienation of all or any part of the security secured by the Deed of Trust ("Security"), without City's prior written consent, except as allowed in the Deed of Trust. The consent by the City to any sale, transfer, lease, pledge, encumbrance, creation of a security interest in, or other hypothecation of the Security shall not be deemed to constitute a novation or a consent to any further sale, transfer, lease, pledge encumbrance, creation of a security interest in or other hypothecation of, the Security without notice to and consent by the City. The City may, at its option, declare the indebtedness secured hereby immediately due and payable without notice to the Owner or any other person or entity (except as provided herein), upon all such safe, transfer, lease, pledge, encumbrance, creation of a security interest in, or other hypothecation or alienation in violation hereof. Without the written consent of the City, no sale, transfer, lease, pledge encumbrance, creation of security interest in, or other hypothecation of, the Security shall relieve or release the Owner from primary liability under the Deed of Trust or this Note, as the case may be. As used in this Section
4.1(b) the term "transfer" includes, without limitation, the following transactions:
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
(i) Any total or partial sale, assignment or conveyance, or creation of any trust or power, or any transfer in any
other mode or form with respect to the Security or any
paid thereof or any interest therein, or any contract or agreement to do the same; and,
(ii) The cumulative transfer, other than to affiliate of Owner or an affiliate of a partner in owner, of more
than ten percent (10%) of the capital stock, partnership profit and loss interest, or other form of interest in
Owner; and,
(iii) any merger, consolidation, sale or lease of all or substantially all of the assets of the Owner.
(c) Owner defaults under any of the other deeds of trust that encumber the Property.
3.2 From and after the time at which City has the right to accelerate the repayment of this Note pursuant to Section 4.1 above, the entire principal sum of this Note shall automatically bear a maximum interest rate permitted by Section l (2) of Article XV of the California Constitution ("Default Rate").
3.3 Borrower shall have the right but not the obligation to prepay, without penalty, at any time all or any portion of the outstanding principal balance of this Note.
3.4 Notwithstanding any agreements between Borrower and City, in no event shall the total liability for payments in the nature of interest, additional interest and other charges exceed the applicable limits imposed by the usury laws of the State of California. Any such payments that are determined to exceed applicable usury rates, shall be deemed a payment of principal.
4. Waiver by Owner. Owner, any endorser of this Note, and all others who may become liable for all or any part of the obligations evidenced by this Note hereby severally waive demand, presentment for payment, demand and protest, notice of protest, demand and dishonor and non-payment and consent to any number of renewals or extensions of time hereof. Any such renewals or extensions may be made without notice to any of said parties and without affecting their liability. The pleading of any statute of limitations as a defense to any demand against the Owner is expressly waived by Owner.
5. Other Encumbrances.
5.1 Subject to the terms of the Deed ofTrust which, in this case, shall control I-4
Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
over the Note, Borrower shall not further encumber, mortgage, or subject the Property or any interest therein to a Deed of Trust without the prior written consent of the City.
5.2 Except for all Deeds of Trust recorded against the Property prior to the date of this Note, unless the City shall expressly agree otherwise in writing, all mortgage and Deed of Trust documents affecting the Property shall provide that in the event of any default or breach by the Borrower under any mortgage or Financing Statement other than the Deed of Trust entitling any party thereunder to accelerate the indebtedness secured thereby and foreclose upon the Property or any interest therein, the City may, at its option, (a) cure the default prior to the completion of any foreclosure and reinstate the mortgage Deed of Trust, or (b) pay the total unpaid indebtedness secured by such mortgage or Deed of Trust, in which event such mortgage or Deed of Trust shall be released.
Amounts expended by the City under this paragraph shall be reimbursed by Borrower upon demand of the City therefor, and, in the event, shall bear interest at the maximum rate permitted by Section 1(2) of Article XV of the California Constitution from the date advanced by the City until paid in full. All such amounts (including such interest) shall be added to the principal of this Note. The approval by Borrower of any mortgage or Deed of Trust documents, and the placing of a security interest therefor on the Property or any portion thereof, not containing the provisions required by this Paragraph 5 shall constitute a default under this Note.
6. Joint and Several. The undersigned, if more than one, shall be jointly and severally liable hereunder.
7. Purpose of Agreement. It is the intent of the parties that the relationship evidenced by this Note shall be deemed to be one of debtor/creditor, and not of partnership or joint venture.
8. Waiver by City. Any failure of the City or other holder to exercise any rights hereunder shall not constitute a waiver of the rights to the later exercise thereof.
9. Amendment. This Note may not be changed, amended or modified orally.
10. Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of California.
11. Binding on Successors. The terms of this Note shall apply to, inure to the benefit of, and bind all parties hereto, their heirs, legatees, devisees, administrators, executors, personal representatives, successors, and assigns. Whenever used, the words "Owner", “Grantee”, “Organization” and “Trustor” shall be deemed to include the respective heirs, legatees, devisees, administrators, executors, personal representatives, successors I-5
Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
and assigns of Maker and Holder.
12. No Individual Liability. Notwithstanding any provisions of this Note or the Grant Documents to the contrary, no director, officer, employee, shareholder, or other individual associated with the Owner shall have any personal liability under this Note or the Grant Documents, it being the intention of the patties that such liability is imposed solely on the corporate entity which comprises the Owner.
IN WITNESS WHEREOF, the Organization has executed this Covenant as of the date of this agreement.
OWNER/ORGANIZATION:
RIVERWOOD GROVE ASSOCIATES
a California non-profit corporation
By: Michael J. Vergura
Title: Assistant Secretary
Address: 303 Vintage Park Drive, Suite 250
Foster City. CA 94404
Date: _________________________
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
CONTRIBUTION AGREEMENT
BY AND BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA
AND
RIVERWOOD GROVE ASSOCIATES
EXHIBIT J
DEED OF TRUST
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
Name: City Clerk’s Office
Street Address: 1500 Warburton Avenue
City & State: Santa Clara, California
Zip Code: 95050
Order No.: __________________________
Parcel No.: __________________________
REC
RMF
MICRO
RTCF
LIEN
SMPF
PCOR
SPACE ABOVE THIS LINE FOR RECORDER’S USE
TO BE RECORDED WITHOUT FEE FOR GOVERNMENT CODE SELECTIONS 6103 AND 27383
DEED OF TRUST WITH ASSIGNMENT OF RENTS
(This Deed of Trust contains an acceleration clause)
This DEED OF TRUST made this ____ day of __________, 2023 between RIVERWOOD GROVE ASSOCIATES, a California nonprofit corporation, herein called Trustor, whose address is 2150 Tasman Drive, Santa Clara, CA 95050, the City of Santa Clara, herein called Trustee, and the CITY OF SANTA CLARA, herein called Beneficiary.
Witnessed: That Trustor irrevocably grants, transfer and assigns to Trustee in Trust, with Power of Sale, that Property located at 2150 Tasman Drive, Santa Clara, CA 95054 in the City of Santa Clara, County of Santa Clara, California, more particularly described as in EXHIBIT A Legal Description, attached hereto and incorporated herein.
If the Trustor shall sell, convey or alienate said property, or any part thereof, or any interest therein, or shall be divested of his title or any interest therein in any manner or way, whether voluntarily or involuntarily, without the written consent of the beneficiary being first had and obtained, beneficiary shall have the right, at its option, to declare any indebtedness or obligations secured hereby, irrespective of the maturity date specified in any note evidencing the same, immediately due and payable.
TOGETHER WITH the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits.
For the Purpose of Securing (1) payment of the sum of ($350,000.00) according to the terms of a promissory note or notes of even date herewith made by Trustor, payable to order of Beneficiary, and extensions or renewals thereof; (2) the performance of each agreement of Trustor incorporated J-3
Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
by reference or contained herein or reciting it is so secured; (3) Payment of additional sums and interest thereon which may hereafter be loaned to Trustor, or his successors or assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property above described, Trustor expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A of that certain Fictitious Deed of Trust recorded in the book and page of Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name of such county, namely:
COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Alameda 1288 556 Kings 858 713 Placer 1028 379 Sierra 38 187 Alpine 3 130-31 Lake 437 110 Plumas 166 1307 Siskiyou 506 762 Amador 133 438 Lassen 192 367 Riverside 3788 347 Solano 1287 621 Butte 1330 513 Los Angeles T-3878 874 Sacramento 71-10-26 615 Sonoma 2067 427 Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislaus 1970 56 Colusa 323 391 Marin 1849 122 San Bernardino 6213 768 Sutter 655 585 Contra Costa 4684 1 Mariposa 90 453 San Francisco A-804 596 Tehama 457 183 Del Norte 101 549 Mendocino 667 99 San Juaquin 2855 283 Trinity 108 595 El Dorado 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108 Fresno 5052 623 Modoc 191 93 San Mateo 4788 175 Tuolumne 177 160 Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237 Humboldt 801 83 Monterey 357 239 Santa Clara 6626 664 Yolo 769 16 Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 Yuba 398 693 Inyo 165 672 Nevada 363 94 Shasta 800 633
Kern 3756 690 Orange 7182 18 San Diego SERIES 5 Book 1964, Page 149774 Said agreements, terms and provisions contained in said subdivision A and B, (identical in all counties are printed on the reverse side hereof) are by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge therefore does not exceed the maximum allowed by laws.
The foregoing assignment of rents is absolute unless initiated here, in which case, the assignment serves as additional security.
BY SIGNING BELOW, Trustor accepts and agrees to the terms and covenants contained in this Security Instrument (including those provisions of the Fictitious Deed of Trust that are incorporated by reference) and in the Rider executed by Trustor and attached hereto as EXHIBIT B and incorporated hereby.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at this address hereinbefore set forth.
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IN WITNESS WHEREOF, the Organization has executed this Covenant as of the date of this agreement.
OWNER/ORGANIZATION:
RIVERWOOD GROVE ASSOCIATES,
a California non-profit corporation
By: MP Santa Clara Inc.,
A California non-profit public benefit corporation,
Its General Partner
_____________________________________
By: Michael J. Vergara
Title: Assistant Secretary
Address: 303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Date: _________________
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Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
The following is a copy of provisions (1) to (14) inclusive, of the fictitious Deed of Trust, recorded in each county in California, as stated in the foregoing Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To Protect the Security of This Deed of Trust, Trustor Agrees:
(1) To keep said property in good condition and repair; not to remove or demolish any building thereon; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefore; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumeration herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under any fire or Beneficiary may apply other insurance policy upon any indebtedness secured hereby and in such order as Beneficiary may determine, or at option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. (3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed. (4) To pay: at least ten days before delinquency all taxes and assessments affecting said properly, including assessments on appurtenant water stock; when due, all encumbrances, charges, and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this Trust.
(5) Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any in cumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; J-6
Project Name – Riverwood Grove Capital Project (Electrical Improvements) 191.149/546992
and, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees.
B. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to beneficiary who may apply or release such moneys received by him in the same manner and with the same effect as above provided for disposition of proceeds of fire or other insurance.
(2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not, waive his right either to require prompt payment when due of all other sums so secured or to declare default tor failure so to pay. (3) That at any time or from time to lime, without liability therefore and without notice, upon written request of Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof join in granting any easement thereon; or join in any extension agreement or any agreement subordinating the lien or charge hereof.
(4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed and said note to Trustee for cancellation and retention and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The Owner in such reconveyance may be described as "the person or persons legally entitled thereto." Five years after issuance of such lull reconveyance, Trustee may destroy said note and this Deed (unless directed in such request to retain them).
(5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own name sue for or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon and taking possession of said property, the collection J-7
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of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
(6) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration or default and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation or said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale.
Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to lime thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto.
(7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee.
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(8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, or the note secured hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. (9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
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DO NOT RECORD
REQUEST FOR FULL RECONVEYANCE TO TRUSTEE:
The undersigned is the legal owner and holder of the note or notes, and of all other indebtedness secured by the foregoing Deed of Trust. Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to your underline terms of said deed of Trust, to cancel said note or notes above mentioned and all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same.
Dated ___________________ ______________________________ ______________________________
Please mail Deed of Trust,
Note and Reconveyance to: RIVERWOOD GROVE ASSOCIATES
303 Vintage Park Drive, Suite 250, Foster City, CA 94404 Do not lose or destroy this Deed of Trust OR THE NOTE, which it secures. Both must be delivered to the Trustee
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EXHIBIT A
(For Deed of Trust)
Property Legal Description
The land referred to is situated in the County of Santa Clara, City of Santa Clara, State of California, and is described as follows:
PARCEL 1, so designated and delineated on the Parcel Map recorded February 22, 2001 in Book
737 of Maps, Pages 19 and 20, Santa Clara County Records.
APN: 097-05-108
APN: 097-05-108
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EXHIBIT B
RIDER TO DEED OF TRUST AND ASSIGNMENT OF RENTS
THIS RIDER TO DEED OF TRUST AND ASSIGNMENT OF RENTS is made this _____ day of ______________ , 2023, and is incorporated into and shall be deemed to amend and supplement the Deed of Trust and Assignment of Rents (“'Deed of Trust”) covering real property and any improvements thereon located 2150 Tasman Drive, Santa Clara, CA 95054, and further described in the property description set forth in the Deed of Trust, (“Property”), of the same date given by the undersigned, RIVERWOOD GROVE ASSOCIATES, a California Nonprofit Corporation ("Trustor") to secure Trustor’s promissory note to the City of Santa Clara, a municipal corporation (“City”) in the amount of THREE HUNDRED FIFTY THOUSAND DOLLARS AND NO/100 ($350,000.00) dated of even date herewith (the “Note”).
In addition to the covenants and agreements made in the Deed of Trust, City and Trustor further covenant and agree as follows:
1. This Rider and the Deed of Trust are made in connection with a certain Grant Agreement by and between the City of Santa Clara and RIVERWOOD GROVE ASSOCIATES, for the 2023-24 programs, as may be amended from time to time (“Grant Agreement”).
The Grant Agreement provides that Trustor is the recipient of certain Community Development Block Grant (“CDBG”) funds designated for rehabilitating Trustor’s building located at 2150 Tasman Drive in Santa Clara, California (the “Facility”).
2. All sums secured by the Deed of Trust shall, at the option of City, become immediately due and payable upon:
(a) The sale or transfer by Trustor of the Facility or Property, without the prior written consent of City, prior to time periods specified in the Note and Grant Agreement; or,
(b) A use by Trustor of the Property or the Facility, prior to the expiration of time periods specified in the Note and Grant Agreement and the reconveyance of the Deed of Trust, which violates the terms of the Grant Agreement including J-12
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the Affordability Restriction attached thereto, or which is not an “eligible activity” under Title 1 of the Housing and Community Development Act of 1974, Public Law 93-383, as amended and regulations issued pursuant thereto by the United States Department of Housing and Urban Development; or, (c) An uncured default under the terms of the Deed of Trust. If City exercises this option, City shall give Trustor notice of acceleration. The notice shall provide a period of not less than sixty (60) days from the date the notice is mailed, within which Trustor must pay all sums secured by the Deed of Trust, If Trustor fails to pay these sums prior to the expiration of this sixty (60) day period, such failure shall constitute an uncured default and City may invoke any remedies permitted by the Deed of Trust without further notice or demand on Trustor.
3. The sums secured by the Deed of Trust shall be considered paid in full if the contingencies set forth in the Note and Grant Agreement have not occurred within the time periods set forth in the Grant Agreement. When said contingencies in the Note and the Grant Agreement do not occur within the time periods specified in the Grant Agreement, the Promissory Note shall have no further force or effect and shall be deemed null and void at the end of the latter of the time periods specified in the Grant Agreement, and City shall instruct the Trustee of the Deed of Trust to execute a full reconveyance, without warranty, of the Property described in the Deed of Trust.
4. Trustor hereby agrees to indemnify, hold harmless and defend with counsel of City’s choice, City, its agents, successors, and assigns for any and all expenses, costs, or liabilities directly or indirectly caused by displacement of and relocation of tenants located at the Facility.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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By signing below, Trustor accepts and agrees to the terms and provisions contained in this Rider.
IN WITNESS WHEREOF, the Organization has executed this Covenant as of the date of this agreement.
OWNER/ORGANIZATION:
RIVERWOOD GROVE ASSOCIATES,
a California non-profit corporation
By: MP Santa Clara Inc.,
A California non-profit public benefit corporation,
Its General Partner
_____________________________________
By: Michael J. Vergara
Title: Assistant Secretary
Address: 303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Date: _________________
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-327 Agenda Date: 5/7/2024
REPORT TO COUNCIL
SUBJECT
Action on Amendment No. 1 to the Agreement with Hinderliter, De Llamas & Associates DBA HdL Companies for Business License Tax Process Improvements, Software, Transition Support and Audit Services
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
In November 2022, residents approved the passage of Measure H, a “City of Santa Clara Business License Update / Tax Equity Measure.” Several elements of the updated business license tax include, but are not limited to, the following:
· Rolling invoicing/billing throughout the year
· Cap of $500 increased to $350,000 per business
· Flat $45 per employee tax rate
· Annual CPI adjustment
· One license for each business entity (certificates required for each location) · Out of area business registration pro-rated based on estimated workdays in the year · Flat landlord tax per rental unit
· Various exemptions
· Home-based businesses
· Penalties for non-payment
· Simplification of tax rates by removing tiers based on business industry size and type.
In response to the passage of Measure H, staff completed a competitive Request for Proposals process (RFP) to select a qualified firm to assist with the development and implementation of a new business tax system. Five proposals were received, and Hinderliter, De Llamas & Associates DBA HdL Companies (HdL) was awarded the agreement having submitted the best value proposal as determined by the evaluation panel.
In July 2023, the City worked with HdL and went live with changes to the business tax system based on the elements of the updated Business Tax Ordinance (Ordinance). This change required businesses to update license information to include accurate employee-based headcount. HdL supported this transition by redirecting all inquiries conducted by phone and online for business license tax renewals. New renewals continued to be serviced by the City’s Finance Department. In addition, accounts for businesses with multiple locations were consolidated into a single account.
Due to potential data integrity issues, this consolidation effort was conducted in phases, often City of Santa Clara Page 1 of 4 Printed on 5/3/2024
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24-327 Agenda Date: 5/7/2024
requiring individual review of accounts to ensure a smooth transition process for the business license renewal.
DISCUSSION
The current agreement with HdL has a term of five years through May 11, 2028 and includes services for business process review, system configuration, and tax administration. The agreement’s maximum compensation of $250,000 covers these services on a fixed fee basis. Under the agreement, HdL also provides audit services which are compensated on a percentage of amounts recovered.
Tax Administration Services
HdL has already completed the business process review and system configuration and has been providing tax administration services for a fixed monthly fee of $15,000. The current contract has capacity for these services through July 2024. Due to the extended time needed to consolidate existing business accounts, address system upgrades, correct data integrity issues and revise training materials, additional tax administration services are necessary to ensure a seamless transition for our businesses and to fully implement the system and process changes required as a result of the passage of Measure H.
Tax administration services include:
· Providing phone and email customer support to augment existing City call taking services to assist with the transition to the new Business Tax. (The current average volume is approximately 500 calls and 180 email inquiries per month). · Providing staffing support to supplement existing staff resources to process business license renewals (equivalent to 1 full-time position) until the Business Tax Program is fully transitioned. · Providing advisory services on behalf of the City to conduct outreach to impacted businesses until the Business Tax Program is fully transitioned.
· Providing outreach materials and advisory support to help the City encourage businesses that do not currently have a business license to sign up.
· Conducting clean-up and migration of existing data to the new system.
Staff is seeking authorization to execute Amendment No. 1 to the Agreement to increase the maximum compensation by $137,500 for a new revised maximum compensation amount of $387,500. This will enable staff to extend HdL’s tax administration services at a lower monthly fee of $13,500 until June 30, 2025. Additionally, staff is requesting authorization for the City Manager to negotiate and execute future amendments to increase the maximum compensation by an additional $536,240 for a total maximum compensation not to exceed $923,740 for ongoing tax administration services through June 30, 2028. As part of this Amendment No. 1, staff is requesting to revise the expiration date from May 11, 2028 to June 30, 2028 to align with the fiscal year.
Audit Services
In addition to the tax administration services outlined above, HdL also provides audit services as part City of Santa Clara Page 2 of 4 Printed on 5/3/2024
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24-327 Agenda Date: 5/7/2024
of the agreement. Unlike tax administration services, there is no maximum compensation for audit services, as the fee is based on amounts recovered. The fee for audit services is 40% of all revenues collected by HdL, with a $350 minimum. For any new revenues collected by HdL through audit services, the City would retain 60% of the revenues collected by HdL in the first year, and 100% of the revenues thereafter.
Audit services include:
· Ensuring a complete and accurate receipt and recording of business tax revenues, thereby enhancing the City’s business tax revenue.
· Conducting audits on the reporting of the 20 top businesses (by number of employees) after the implementation of the Ordinance.
· Auditing the application of business tax caps in accordance with the Ordinance. · Performing random audits of a minimum of 50 businesses every two years located outside the City, and annual audits of 10 landlords, starting with the landlords with the greatest number of rental units, to ensure compliance with the Ordinance.
· Conducting randomized annual audits of 50 businesses located within the City to determine compliance with the Ordinance.
· Identifying potential businesses that do not have a business license using available external data sources.
· Comparing audit findings to independently reported sources (e.g., State EDD reporting). · Preparing documentation for each error/omission to substantiate and facilitate revenue recovery, including applicable interest and penalties.
· Providing additional assistance, as necessary, to support the City in recovering and preventing tax allocation errors/omissions.
· Delivering written or electronic reports summarizing findings upon completion of annual audits.
Audit services are necessary to ensure compliance with the revised Business Tax Ordinance and correct reporting by businesses. Authorization to approve audit services on an ongoing basis is included in this report.
Update on Business Tax Collections
As of February 2024, Business Tax collections have totaled $3.1 million or 52% of the budgeted estimate of $6 million. With the implementation of the revised Business Tax Ordinance, the transition and need to re-register every business impacted collections in the first few months of the 2023/24 fiscal year. Consolidation efforts for business licenses with multiple locations are ongoing and staff anticipates ending the year close to the budgeted estimate. The review of business licenses through the audit services is anticipated to enhance revenues moving forward.
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24-327 Agenda Date: 5/7/2024
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to section 15378(b)(5) of Title 14 of the California Code of Regulations as the proposed services are administrative activities that will not result in either a direct or indirect physical change in the environment.
FISCAL IMPACT
The Finance Department budget will cover the cost of the HdL services for implementation support in FY 2024/25. Costs for audit services will be funded by new revenue collected through HdL audit services and any necessary budget actions will be brought forward to recognize those revenues and appropriate funding to cover the audit costs as those funds are received.
COORDINATION
This report has been coordinated with the City Attorney’s Office.
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 or designee to execute Amendment No. 1 to the Agreement with Hinderliter, De Llamas & Associates DBA HdL Companies to revise the expiration date from May 11, 2028 to June 30, 2028 and increase the maximum compensation by $137,500 from $250,000 to $387,500 for additional tax administration services, subject to the appropriation of funds;
2. Authorize the City Manager or designee to take any actions as necessary to implement and administer the Agreement as amended and negotiate and execute amendments to add or delete services consistent with the scope of services and increase the maximum compensation by an additional $536,240 for a total maximum compensation not to exceed $923,740, subject to the appropriation of funds and the review and approval as to form by the City Attorney; and
3. Authorize the City Manager or designee to approve ongoing audit services by HdL, as directed by staff, throughout the duration of the term of the agreement with fee to HdL of 40% of new revenues collected, through audit services, with a minimum fee of $350.
Reviewed by: Kenn Lee, Director of Finance
Approved by: Jovan Grogan, City Manager
ATTACHMENTS
1. Agreement with HdL Companies
2. Proposed Amendment No. 1 to the Agreement with HdL Companies City of Santa Clara Page 4 of 4 Printed on 5/3/2024
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EBIX Insurance No.
AGREEMENT FOR SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
HINDERLITER, DE LLAMAS & ASSOCIATES DOING BUSINESS AS HDL COMPANIES
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Hinderliter, de Llamas & Associates OBA Hdl Companies, a California Corporation, (Contractor). City and Contractor may be referred to individually as a "Party"or collectively as the "Parties" or the "Parties to this Agreement."
RECITALS
A. City desires to secure the services more fully described in this Agreement, at Exhibit A, entitled "Scope of Services";
B. Contractor represents that it, and its subcontractors, if any, have the professional qualifications, expertise, necessary licenses and desire to provide certain goods and/or required services of the quality and type which meet objectives and requirements of City; and,
C. The Parties have specified herein the terms and conditions under which such services will be provided and paid for.
The Parties agree as follows:
AGREEMENT TERMS AND CONDITIONS
1. AGREEMENT DOCUMENTS
The documents forming the entire Agreement between City and Contractor shall consist of these Terms and Conditions and the following Exhibits, which are hereby incorporated into this Agreement by this reference:
Exhibit A - Scope of Services
Exhibit B - Schedule of Fees
Exhibit C - Insurance Requirements
This Agreement, including the Exhibits set forth above, contains all the agreements, representations and understandings of the Parties, and supersedes and replaces any previous agreements, representations and understandings, whether oral or written. In the event of any inconsistency between the provisions of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
Unless otherwise set forth in this Agreement or unless this paragraph is subsequently modified by a written amendment to this Agreement, the term of this Agreement shall begin on May 12, 2023 and terminate on May 11, 2028.
3. SCOPE OF SERVICES & PERFORMANCE SCHEDULE
Contractor shall perform those Services specified in Exhibit A within the time stated in Exhibit A. Time is of the essence.
4. WARRANTY
Contractor expressly warrants that all materials and services covered by this Agreement shall be fit for the purpose intended, shall be free from defect and shall conform to the specifications, requirements and instructions upon which this Agreement is based. Contractor agrees to promptly replace or correct any incomplete, inaccurate or defective Services at no further cost to City when defects are due to the negligence, errors or omissions of Contractor. If Contractor fails to promptly correct or replace materials or services, City may make corrections or replace materials or services and charge Contractor for the cost incurred by City.
5. QUALIFICATIONS OF CONTRACTOR - STANDARD OF CARE
Contractor represents and maintains that it has the expertise in the professional calling necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and City expressly relies upon Contractor's representations regarding its skills and knowledge. Contractor shall perform such Services and duties in conformance to and consistent with the professional standards of a specialist in the same discipline in the State of California.
6. COMPENSATION AND PAYMENT
In consideration for Contractor's complete performance of Services, City shall pay Contractor for all materials provided and Services rendered by Contractor in accordance with Exhibit B, entitled "SCHEDULE OF FEES." The maximum compensation of this Agreement is Two Hundred Fifty Thousand Dollars and Zero Cents ($250,000), subject to budget appropriations, which includes all payments that may be authorized for Services and for expenses, supplies, materials and equipment required to perform the Services. All work performed or materials provided in excess of the maximum compensation shall be at Financial Services Agreement between City of Santa Clara and Hdl Page 2 of20 Contractor's expense. Contractor shall not be entitled to any payment above the maximum compensation under any circumstance.
7. TERMINATION
A. Termination for Convenience. City shall have the right to terminate this Agreement, without cause or penalty, by giving not less than Thirty (30) days' prior written notice to Contractor.
B. Termination for Default. If Contractor fails to perform any of its material obligations under this Agreement, in addition to all other remedies provided by law, City may terminate this Agreement immediately upon written notice to Contractor.
C. Upon termination, each Party shall assist the other in arranging an orderly transfer and close-out of services. As soon as possible following the notice of termination, but no later than ten (10) days after the notice of termination, Contractor will deliver to City all City information or material that Contractor has in its possession.
8. ASSIGNMENT AND SUBCONTRACTING
City and Contractor bind themselves, their successors and assigns to all covenan.ts of this Agreement. This Agreement shall not be assigned or transferred without the prior written approval of City. Contractor shall not hire subcontractors without express written permission from City.
Contractor shall be as fully responsible to City for the acts and omissions of its subcontractors, and of persons either directly or indirectly employed by them, as Contractor is for the acts and omissions of persons directly employed by it.
9. NO THIRD PARTY BENEFICIARY
This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
10. INDEPENDENT CONTRACTOR
Contractor and all person(s) employed by or contracted with Contractor to furnish labor and/or materials under this Agreement are independent contractors and do not act as agent(s) or employee(s) of City. Contractor has full rights to manage its employees in their performance of Services under this Agreement.
11. CONFIDENTIALITY OF MATERIAL
All ideas, memoranda, specifications, plans, manufacturing procedures, data, drawings, descriptions, documents, discussions or other information developed Financial Services Agreement between City of Santa Clara and Hdl Page 3 of20 or received by or for Contractor and all other written information submitted to Contractor in connection with the performance of this Agreement shall be held confidential by Contractor and shall not, without the prior written consent of City, be used for any purposes other than the performance of the Services nor be disclosed to an entity not connected with performance of the Services. Nothing furnished to Contractor which is otherwise known to Contractor or becomes generally known to the related industry shall be deemed confidential.
12. OWNERSHIP OF MATERIAL
All material, which shall include, but not be limited to, data, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports, designs, technology, programming, works of authorship and other material developed, collected, prepared or caused to be prepared under this Agreement shall be the property of City but Contractor may retain and use copies thereof. City shall not be limited in any way or at any time in its use of said material. However, Contractor shall not be responsible for damages resulting from the use of said material for work other than Project, including, but not limited to, the release of this material to third parties.
13. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the term of this Agreement and for four (4) years from the date of final payment for goods or services provided under this Agreement, to audit the books and records of Contractor for the purpose of verifying any and all charges made by Contractor in connection with Contractor compensation under this Agreement, including termination of Contractor. Contractor agrees to maintain sufficient books and records in accordance with generally accepted accounting principles to establish the correctness of all charges submitted to City. Any expenses not so recorded shall be disallowed by City. Contractor shall bear the cost of the audit if the audit determines that there has been a substantial billing deviation in excess of five (5) percent adverse to the City.
Contractor shall submit to City any and all reports concerning its performance under this Agreement that may be requested by City in writing. Contractor agrees to assist City in meeting City's reporting requirements to the State and other agencies with respect to Contractor's Services hereunder.
14. HOLD HARMLESS/INDEMNIFICATION
A. To the extent permitted by law, Contractor agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents from and against any claim, injury, liability, loss, cost, and/or expense or damage, including all costs and attorney's fees in providing a defense to any such claim or other action, and whether sounding in law, contract, tort, or equity, in any manner Financial Services Agreement between City of Santa Clara and Hdl Page 4 of20 arising from, or alleged to arise in whole or in part from, or in any way connected with the Services performed by Contractor pursuant to this Agreement - including claims of any kind by Contractor's employees or persons contracting with Contractor to perform any portion of the Scope of Services - and shall expressly include passive or active negligence by City connected with the Services. However, the obligation to indemnify shall not apply if such liability is ultimately adjudicated to have arisen through the sole active negligence or sole willful misconduct of City; the obligation to defend is not similarly limited.
B. Contractor's obligation to protect, defend, indemnify, and hold harmless in full City and City's employees, shall specifically extend to any and all employment-related claims of any type brought by employees, contractors, subcontractors or other agents of Contractor, against City (either alone, or jointly with Contractor), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.
C. To the extent Contractor is obligated to provide health insurance coverage to its employees pursuant to the Affordable Care Act ("Act") or any other similar federal or state law, Contractor warrants that it is meeting its obligations under the Act and will fully indemnify and hold harmless City for any penalties, fines, adverse rulings, or tax payments associated with Contractor's responsibilities under the Act.
D. In no event will Contractor be liable for any City monies not collected by Contractor. Contractor's duty to indemnify and hold harmless City shall not apply to claims for liability which arise from the issuance or non-issuance of any registration, license, permit, or exemption.
15. INSURANCE REQUIREMENTS
During the term of this Agreement, and for any time period set forth in Exhibit C, Contractor shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit C.
16. WAIVER
Contractor agrees that waiver by City of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Neither City's review, acceptance nor payments for any of the Services required under this Agreement shall be constructed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement.
Financial Services Agreement between City of Santa Clara and Hdl Page 5 of 20
17. NOTICES
All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows:
City of Santa Clara
Attention: Finance Department
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected]
And to Contractor addressed as follows:
Hinderliter, de Llamas & Associates OBA Hdl Companies
120 S. State College Blvd., Suite 120
Brea, CA 92821
and by e-mail at [email protected]
The workday the e-mail was sent shall control the date notice was deemed given.
An e-mail transmitted after 1 :00 p.m. on a Friday shall be deemed to have been transmitted on the following business day.
18. COMPLIANCE WITH LAWS
Contractor shall comply with all applicable laws and regulations of the federal, state and local government, including but not limited to "The Code of the City of Santa Clara, California" ("SCCC"). In particular, Contractor's attention is called to the regulations regarding Campaign Contributions (SCCC Chapter 2.130), Lobbying (SCCC Chapter 2.155), Minimum Wage (SCCC Chapter 3.20), Business Tax Certificate (SCCC section 3.40.060), and Food and Beverage Service Worker Retention (SCCC Chapter 9.60), as such Chapters or Sections may be amended from time to time or renumbered . Additionally, Contractor has read and agrees to comply with City's Ethical Standards (http://santaclaraca.gov/home/showdocument?id=58299).
19. CONFLICTS OF INTEREST
Contractor certifies that to the best of its knowledge, no City officer, employee or authorized representative has any financial interest in the business of Contractor and that no person associated with Contractor has any interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Contractor is familiar with the provisions of California Government Code section 87100 and Financial Services Agreement between City of Santa Clara and Hdl Page 6 of 20 following, and certifies that it does not know of any facts which would violate these code provisions. Contractor will advise City if a conflict arises.
20. FAIR EMPLOYMENT
Contractor shall not discriminate against any employee or applicant for employment because of race, sex, color, religion, religious creed, national origin, ancestry, age, gender, marital status, physical disability, mental disability, medical condition, genetic information, sexual orientation, gender expression, gender identity, military and veteran status, or ethnic background, in violation of federal, state or local law.
21. NO USE OF CITY NAME OR EMBLEM
Contractor shall not use City's name, insignia, or emblem, or distribute any information related to services under this Agreement in any magazine, trade paper, newspaper or other medium without express written consent of City.
22. GOVERNING LAW AND VENUE
This Agreement shall be governed and construed in accordance with the statutes and laws of the State of California. The venue of any suit filed by either Party shall be vested in the state courts of the County of Santa Clara, or if appropriate, in the United States District Court, Northern District of California, San Jose, California.
23. SEVERABILITY CLAUSE
In case any one or more of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, it shall not affect the validity of the other provisions, which shall remain in full force and effect.
24. AMENDMENTS
This Agreement may only be modified by a written amendment duly authorized and executed by the Parties to this Agreement.
Financial Services Agreement between City of Santa Clara and HdL Page 7 of 20
25. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which shall constitute one and the same instrument.
The Parties acknowledge and accept the terms and conditions of this Agreement as evidenced by the following signatures of their duly authorized representatives .
App'41i as to Form:
GLEN R. Gok Ns
City Attorney
CITY OF SANTA CLARA, CALIFORNIA
a chartered California municipal corporation
"CITY"
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
Hinderliter, de Llamas & Associates OBA Hdl Companies
a California Corporation
Dated: _5_mP2 ....... 7_,,. .2_0_2_3_, __________ _ _
By (Signature): ~ ~
Name: =
7 : R: o=b=e=rt==G=ra~== ========================
Title: Chief Information Officer ----------- ---~--- Pr inc i pa I Place of Business Address: 120 S State College Blvd Suite 200, Brea, CA 92821 Email Address: ~ r=g'-'-ra=-yl--J@~h=d~lc~o~m-'-'p~a~n~ie~s~.c~o~m~------- Telephone: _ 7_1_4_-8_7_9_-5_0_0_0 __________ _
Fax:
"CONTRACTOR"
Financial Services Agreement between City of Santa Clara and Hdl Page 8 of 20 1 INTRODUCTION
EXHIBIT A
SCOPE OF SERVICES
1.1 Hdl Company (HdL or Consultant) shall provide the City of Santa Clara (City) with a turnkey solution(s) to modernize the City's revenue systems (System).
Consultant shall provide services to facilitate the efficient and successful transition of current process as described in this document. Key deliverables include: 1) A review of current business processes; 2); Identification of process improvements; 3) Provision all required software and materials as described below including but not limited to enhance the Business Tax, Transient Occupancy Tax and Fire Permit systems; 4) Transition daily tax administration duties (related to transitioning existing businesses each month to the new City ordinance) from the City to Hdl; 5) Provide business tax and administration support during the transition to the new Ordinance, and 6) Audit Services.
1.2 Implementation of the new BLT program has a target date of July 1, 2023. 2 BUSINESS PROCESS REVIEW AND PROCESS IMPROVEMENT
2.1 Consultant shall:
2.2 Recommend process improvements and operational efficiencies based on available technology, public finance best practice, and reflecting revised Ordinances from the TOT and BLT Ballot Measures. Provide a written or electronic report documenting process changes.
2.3 Review the City's new ordinance, documented processes, and workflow for the collection of Business Tax, Transient Occupancy Tax, State-mandated CASp Fees and Fire Permits to identify any constraints impacting the customer experience and efficiency of processes. A one-page diagram of the optimal process meeting the ordinance requirements, with documentation for each key step will be presented at the conclusion of this task.
2.4 Meet with City staff to document actual processes and compare with the process documentation, municipal code requirements, and the optimal process identified above. Reconcile any differences and update the optimal process diagram and documentation as needed.
2.5 Present and discuss possible changes to administrative practices to align with the intended outcomes of the process and the key constraints embodied in the municipal code, with an emphasis on those areas that may be naturally occurring bottlenecks for either staff or the business community. Upon receiving City approval for one or more of these changes, HdL will provide documentation of the newly streamlined process.
2.6 Provide a timeline of how these changes could be implemented with the system improvements in this Statement of Work.
Financial Services Agreement between City of Santa Clara and Hdl Page 9 of 20 3 BUSINESS TAX SYSTEM/ REVENUE PROCESSES AND FUNCTIONALITY
3.1 Consultant shall perform the following tasks and deliver System functionality described below:
3.2 Provide all existing functionality and align to the new City Ordinance, which is located at:
(https://www.santaclaraca.gov/home/showpublisheddocumenU77922/63794009752400 0000)
3.3 Ensure the ongoing collection of other fees including State fees applied to or associated with Business Taxes such as State-mandated CASp Fee and continue the ongoing collection of fire permits.
3.4 Provide a single entity tax certificate that allows for multiple locations.
3.5 Provide functionality for online and over-the-counter completion of new, renewal, closure and updates of business tax applications.
3.6 Provide functionality for ongoing online and over-the-counter completion of business tax updates (e.g. add new locations).
3.7 Provide online and over-the-counter account creation functionality that is tied to a business entity.
3.8 Provide secure online payment functionality of business taxes through credit card, debit card, eCheck and/or ACH.
3.9 Provide for minimum payment, maximum payment, convenience fees charges as it relates to credit card payments.
3.10 Provide audit trail and interfaces with the City's CORE Cashiering system and PeopleSoft financial management system.
3.11 Include standard reports that will allow City management staff to analyze business tax activity as required. The analysis will include a review of current and historical data and be able to assist in identifying businesses within the City that do not currently have a current Business Tax Certificate.
3.12 Include standard reports as required that will allow management staff to analyze transient occupancy tax, TIO and CFO activity. This will include data by business, including monthly and quarterly receipts, average room rates, average occupancy rates, and delinquencies as well as summary reports on collections by fiscal year.
3.13 Flexible report writing tools that increase the ability to create adequate financial and management reports. The reporting capabilities of the system shall include at a minimum; financial analysis, forecasting monitoring, retrieval of historical data, and graphical presentation of data and reports. Additionally, it must provide ad hoc reports and queries functionality.
3.14 Provide operations and technical manuals (both on-line and hard copy), data element dictionary must be available.
3.15 Include security features providing internal controls like restricting access to the system and protecting the confidentiality and integrity of certain information. (For example, the availability and access to tax information must be restricted to specified users both internally and externally.
Financial Services Agreement between City of Santa Clara and Hdl Page 10 of20
3.16 SOFTWARE IMPLEMENTATION AND MAINTENANCE SERVICES
Consultant shall:
3.16.1 Configure system to align to the requirements of the updated City Ordinance
3.16.2 Provide/update user manual(s) for City staff
3.16.3 Train all applicable staff on the Software
3.16.4 Provide System go-live in time for the implementation of the new Ordinance on July 1, 2023. (Typically, renewal notices are sent 1 to 2 months ahead of the effective date. The Ordinance provides implementation flexibility; however, time is of the essence and all best efforts should made to achieve go-live on July 1, 2023).
3.16.5 Provide ongoing user and technical support, including but not limited to training users on the initial implementation and installing and configuring product updates.
3.16.6 Provide assistance installing the system and integrating it with City systems including assistance with software engineering, custom programming and database system support.
3.16.7 Test the new software to ensure it is functioning as anticipated including a separate test platform/site with sample transactions in-order to identify any issues a customer may encounter.
3.16.8 Work with City staff to correct or address or modify any System issues with the Software and/or online portal.
3.16.9 Provide ongoing updates, maintenance, support, and security updates.
3.16.1 o Provide tax administration services for an initial period of three months (July 1, 2023 through September 30, 2023). Hdl's tax administration team will handle the daily responsibilities of taxpayer communications and interactions as required to facilitate the transition to the City's new business tax registration process, including handling the renewal process each month.
3.17 FIRE SERVICES
Consultant shall:
3.17.1 Ensure the ongoing collection of fire permit fees. Separate the fire permit billing from the business tax billing process.
3.17.2 Maintain existing accounts with fire permit billing and disable business tax functionality for each account.
3.17.3 Create new business tax accounts and re-register the business with business locations being consolidated by ownership entity as determined by the business process review portion of the project.
3.17 .4 Allow for the invoicing and billing of fire permit fees including files necessary to integrate with lnfoSend billing services.
Financial Services Agreement between City of Santa Clara and Hdl Page 11 of20
3.18 IMPLEMENTATION/ TRANSITION SUPPORT SERVICES
Consultant shall:
3.18.1 Revise existing City forms to conform to the new Ordinance
3.18.2 Create an operating and procedural manual for customer service staff based on the new Ordinance and procedure.
3.18.3 Prepare summary FAQs and documentation in support for the transition to the new Ordinance.
3.18.4 Support the City's Communications/ Outreach staff by providing suggestions to an online, mail and business outreach efforts.
3.18.5 Provide the City's finance department call takers with over the phone script(s) for commonly asked questions and scenarios.
3.18.6 Provide phone and email customer support to augment existing City call taking services to assist with the transition to the new Business Tax. (the current average volume is approx. 500 calls and 180 email inquiries per month).
3.1°8.7 Provide staffing support to supplement existing staff resources (1 full-time equivalent position) until the Business Tax Program is fully transitioned (current average volume is approx. 125 per month/ pre-Covid activity was approx. 300 per month).
3.18.8 Provide advisory services. on behalf of City to outreach to impacted businesses until the Business Tax Program is fully transitioned.
3.18.9 Provide outreach materials and advisory support to help the City encourage businesses that do not currently have a business license to sign up.
3.18.10 Services included above 3.21.6 through 3.21.9 are for a three-month initial term with optional extended service included in 8.1.3
4 AUDIT SERVICES
Consultant Shall:
4.1 Ensure complete and accurate receipt and recording of business tax revenues, enhancing the City's business tax revenue in compliance of requirements under a recent voter approved ballot.
4.2 Conduct an audit on the reporting of the 20 top businesses (by number of employees) after the implementation of the new Ordinance.
4.3 Audit the application of business tax caps in accordance with the City Ordinance
4.4 Conduct randomized annual audits of 50 businesses located in the City to determine compliance for the new Ordinance.
4.5 Perform random audits for a minimum of 50 businesses every two years that are not located in the City.
. Financial Services Agreement between City of Santa Clara and Hdl Page 12 of 20
4.6 Perform annual audits of 10 landlords, starting with the landlords with the greatest number of rental units, to ensure compliance of the new Ordinance.
4.7 Identify potential businesses that do not have a business license using available external data sources
4.8 Compare audit findings to independently reported sources (e.g. State EDD reporting).
4.9 For each error/omission, prepare documentation to substantiate and facilitate recover of revenue plus applicable interest and penalties.
4.10 Provide additional assistance, as necessary, to support the City in recovering and preventing tax allocation errors/omissions.
4.11 Provide written or electronic reports summarizing findings upon completion of annual audits.
Financial Services Agreement between City of Santa Clara and Hdl Page 13 of20 5 TIMELINE
5.1 Hdl shall make all efforts to complete the Timeline per the Table below. If, through no fault of Consultant, the timetable is not met, then Hdl will ensure that all systems continue to function as-is and make all efforts to complete System functionality as soon as possible after July 1, 2023.
Phase Week(s) Date Task Description
Agreement Approval 1.5 4/26/2023 City's decision to award contract 4/27/2023 City provides copy of current Prime database
to Hdl who then initiates data analysis &
project planning on current data
5/5/2023 Deadline for agreement to be signed
Project Kickoff 1 5/8/23 Official Project Kickoff
Business Process 4 5/8 - 5/19/2023 Work on business process review - Create Review and confirm technical project plan outlining
areas that will require development assistance
to facilitate the account transitions - City will
make key personnel and systems available for
review for up to 40 hours during this phase;
this may include on-site visits from Hdl
personnel, with the City paying for travel,
hotel, and incidental costs if needed.
5/19/2023 Deadline for delivery of business process
review document
5/22 - 5/26/2023 City's review of business process review document
5/26/2023 Deadline for City's response to business
process review document. If
changes/questions, brief project team meeting
to discuss.
5/31/2023 Deadline for Hdl's response to City's
changes/questions regarding business
process review document
Implementation 3 6/5 - 6/23/2023 Implement system and report changes, finalize work plan, prepare for June renewals
Send Renewals & 1 6/26 - 6/30/2023 Prepare for and send end of June renewals.
Begin Processing Hdl begins handling business re-registration and renewal process. City will agree to
extended grace period for filing.
Financial Services Agreement between City of Santa Clara and HdL Page 14 of20 6 OTHER REVENUE COLLECTION SOFTWARE
Consultant Shall:
6.1 Develop a software solution flexible to collect other types of revenue. For example, the online collection of Transient Occupancy Tax. Under the current process, Transient Occupancy Tax forms are submitted with information input separately and manually by Finance Department staff into the existing HDL Companies system.
Provide for an on line solution that will allow for:
6.2 Online form for submission based on fields and instructions in the existing TOT, TID, and CFD forms.
6.3 Online collection of tax through eCheck or ACH.
6.4 Migration of existing Transient Occupancy Tax data.
6.5 Allow for the export of data.
6.6 Standardized reports that show collections by business, including monthly and quarterly receipts, number of rooms, average room rates, average occupancy rates, and delinquencies as well as summary reports on collections by fiscal year.
6.7 Integration with CORE Cashiering and PeopleSoft Financials Management System.
6.8 If configured in the same system, integration into the proposed Business Tax Software.
7 HOSTING
7.1 Initially, City will host all System software and hardware with Hdl performing all software maintenance and administrative services.
7.2 The City will grant Hdl with VPN network access to the System to perform all ongoing software maintenance and System administration. 8 OPTIONAL SERVICES
8.1 In the event that services are required that are outside the scope of this agreement, then City and Hdl will negotiate the scope and related costs and initiate the work by issuing a formal addendum that is signed by both parties. Such services include but are not limited to:
8.1.1 Transitioning hosting of the System from the City to Hdl.
8.1.2 Monthly service for items included in 3.21.6 through 3.21.9 along with handling of all day- to- day administration responsibilities and communications as required for transitioning and supporting the businesses beyond the initial three month term Financial Services Agreement between City of Santa Clara and Hdl Page 15 of 20 Exhibit B
Compensation Schedule
1. The total not to exceed cost for this agreement shall not exceed $250,000 unless modified by formal addendum and signed by City and Hdl.
2. City shall pay consultant within 30 days upon receipt of a properly completed invoice, subject to acceptance by the City.
3. Any applicable taxes shall be added to the invoice total at the time the invoice is submitted.
4. City shall pay Hdl as follows:
Task/ Milestone Cost Frequency
Business Process Review $12,000 60% due within 30 days of Agreement date, remaining 40% due
within 30 days of completion
$43,000 60% due within 30 days of
Agreement date, remaining 40% due
System Configuration Costs within 30 days of completion of all tasks under Section 3 of this
Statement of Work
$40,000 Paid monthly in three equal
Tax Administration Services installments commencing 7/1/2023 through 9/30/23
TOTAL $95,000
40% of all
revenues Per audit conducted; Invoiced Audit Services collected; Minimum fee is monthly
$350 per audit
Recurring Costs:
Optional Tax Administration $15,000
Services (after initial three Per Month
months)
5. In addition to the above, City shall reimburse Consultant actual costs for travel, housing and related incidentals that may be incurred during the performance of duties. No markups are permitted on reimbursable expenses. All such charges shall be reasonable and customary and in conformance with the City's Travel Policy which may be located at.
6. Pricing for the optional tax administration services shall remain fixed through 3/31/2024. If these services are requested beyond this date, pricing thereafter will be determined and agreed upon in writing by both City and Consultant.
Financial Services Agreement between City of Santa Clara and Hdl Page 16 of 20
EXHIBIT C -INSURANCE REQUIREMENTS
Contractor, at Contractor's sole cost and expense, shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from, or in connection with, the performance of the services hereunder by Contractor, its agents, representatives, employees or subcontractors or suppliers.
I. Minimum Scope and Limit of Insurance
There shall be no endorsements reducing the scope of coverage required below unless approved by the City's Risk Manager.
Type of Insurance
1 Commercial General Liability
The coverage provided by Insurance Services Office
"occurrence" form CG 0001, including coverages for
contractual liability, personal injury, broad form property damage, independent contractors, products and completed operations.
2 Automobile Liability
The coverage provided by Insurance Services Office form number CA 0001. Coverage shall be included for all owned, non-owned and hired automobiles.
3 Workers' Compensation and Employer Liability
As required by the Labor Code of the State of California. 4 Professional Liability/Errors and Omissions
Including coverages for negligent acts, errors or omissions arising from professional services provided under this
contract, with any deductible not to exceed $25,000 per claim. 5 Cyber & Technology Errors & Omission
Cyber & Technology Errors & Omissions
Technology/Professional Liability insurance and data
protection liability insurance covering liabilities for financial loss resulting or arising from acts, errors, or omissions, in rendering services provided under this agreement as well as all Vendor costs, including damages it is obligated to pay Client or any third party, which are associated with any Security Breach ( as hereafter defined) or loss of Personal Data, regardless of cause (including, without limitation, Vendor negligence or gross negligence and unlawful third party acts). Costs to be covered by this insurance policy shall include without limitation: (a) costs to notify individuals whose Personal Data was lost or compromised; (b) costs to provide credit monitoring and credit restoration services to Financial Services Agreement between City of Santa Clara and HdL Minimum Limit
$1,000,000 per occurrence for
bodily injury, personal injury
and property damage or
$2,000,000 annual aggregate.
$1,000,000 combined single
limit per accident for bodily
injury and property damage.
Not less than $1,000,000 each
claim and annual aggregate.
Not less than $1,000,000 each
occun-ence.