corrections or replace Services or materials 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 in accordance with Exhibit B, entitled "SCHEDULE OF FEES AND PAYMENT PROVISIONS." The maximum compensation of this Agreement is four hundred thousand dollars ($400,000), 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 including any taxes. All Services performed or supplies, materials and equipment provided in excess of the maximum compensation shall be at 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 covenants 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.
Agreement with DL T Solutions, LLC
Rev. 07-01 -18
13. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR
City, through its authorized employees, representatives or agents shall have the right during the Term and for four (4) years from the date of final payment for Services or goods 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, and 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 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 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") and/or any other similar federal or state law, Contractor warrants that it is meeting its Agreement with DL T Solutions, LLC
Rev. 07-01-18
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 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, msIgma, 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.
Agreement with DL T Solutions, LLC
Rev. 07-01-18
EXHIBIT A
SCOPE OF SERVICES
SECTION 1. GENERAL ...................... ....................................... .............................. 10 SECTION 2. SYSTEM AND SOFTWARE REQUIREMENTS .................................. 11 SECTION 3. PROJECT IMPLEMENTATION, DATA CONVERSION, TRAINING AND DOCUMENTATION ..... ................ .. .... ...... ............................. ........ ........................ 13 SECTION 4. PROJECT APPROACH ................. ................................................... .. 24 SECTION 5. POST IMPLEMENTATION TRAINING AND SUPPORT SERVICES .. 27 SECTION 6. SCHEDULE AND TIMELINE .............................................................. 28 SECTION 7. PROJECT ROLES AND RESPONSIBILITIES ..... ............... ................ 28 SECTION 8. OTHER ASSUMPTIONS AND OBLIGATIONS .......... ......... ..... ........ ... 31 SECTION 9. ADDITIONAL SERVICES/LICENSES ................................................. 32 SECTION 10. E-BUILDER ........................................................................... ........ ...... 36 Agreement with DL T Solutions, LLC
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1.8The term "Core Project Team" consists of both the "Project Team" and the "Customer Project Team".
1.9The term Project Team Lead means the person designated, by Contractor or SVP, to be the point of contact to communicate tasks and receive feedback.
SECTION 2.
2.1 Licensed Software
SYSTEM AND SOFTWARE REQUIREMENTS
Contractor shall provide the following third-party software ("Licensed Software") required for the OMS:
Table 1 : Licensed Software
oftware
utodesk
lmaginit
Microsoft
Modules
ault Professional 3- ear subscri tion
ault Server Utilities (3-year subscription)
ault Client Utilities 3- ear subscri tion
QL
2.2License Software Scope Assumptions and SVP Obligations
2.2.1 Any licenses required for Autodesk Vault Professional products will be covered by the Autodesk License Agreement (Exhibit D), which is attached hereto and incorporated as though fully set forth herein. All Licensed Software is subject to the terms of the AutoDesk License Agreement, and nothing herein shall serve to modify such terms or expand the scope of the license granted thereunder.
2.2.2 Logging incidents with IMAGINiT Support (ProductivityNOW), after Project end, as well as the application of fixes or patches that are made available by IMAGINiT Support or other Software Vendor, are the responsibility of SVP.
Annual support services through ProductivityNOW will be covered by the Rand Worldwide Service Level Agreement (Exhibit E), which is attached hereto and incorporated as though fully set forth herein.
2.3Business Process Scope
The scope of this Project is based on an Autodesk Vault Professional (Vault) implementation and content delivered by Contractor. Any deviations will be addressed via the Project Change Control Process, described in Section 9.
Contractor may recommend SVP replace existing business processes with an alternative process to improve optimization and efficiency. SVP's acceptance or rejection of such recommendations shall not modify the scope of this Agreement unless authorized through the process in Section 9.
Agreement with DL T Solutions, LLC
Rev. 07-01-18
2.4.14 File/data loading workshop.
2.4.15 Install Microsoft SQL Server Standard/Enterprise.
2.4.16 SSL (Secure Socket Layer) configuration 1 / high-level or government security requirements.
2.4.17 Bill of Materials management and configuration (requires Items-based configuration).
SECTION 3. PROJECT IMPLEMENTATION, DATA
CONVERSION, TRAINING AND DOCUMENTATION
3.1 Organizational Change Management Scope
3.1.1 "Organizational Change Management (OCM)" means the efforts related to managing the organizational and people aspects from changes in organizational structures, processes, systems, culture, or changes from an existing state to a future state. Contractor will provide the level of effort related to the scope and a senior consultant with responsibility for key strategy/approach work products and activities. Activities may include:
3.1.1.1 Organizational Readiness & Risk Assessment - This work product will identify key organizational risks and challenges associated with the Project. The assessment also provides critical success factors and mitigation plans.
3.1.1.2 Change Management Strategy and Roadmap (Change Management Strategy) - This work product documents the change management strategy and the corresponding program and roadmap for the Project. It integrates the findings from the Change Readiness Risk Assessment into an overall change management program and roadmap. The Change Management Strategy will also outline risk mitigations for organizational issues and provide a recommended change management program.
3.1.1.3 Change Management Project Plan - This work product outlines the Project work plan including phases, stages, and tasks mapped to responsible resources.
3.1.1.4 Communications Plan & Cadence - This work product documents the communications plan and activities to support the initial communication needs of the Project. The primary focus will be on the Project Teams, and general awareness activities to the broad audience.
3.1.1.5 Executive Alignment Workshops - The purpose of Executive Alignment Workshops is to provide a vision and roadmap for the Project, share and discuss organizational challenges with this transformation, and Agreement with DL T Solutions, LLC
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3.2.1.1.3 Vault and working folder structure definition.
3.2.1 . 1.4 Administrative and global options.
3.2.1.1 .5 Advanced Autodesk Data Management Server (ADMS) setting options.
3.2.1.1.6 Visualization management options.
3.2.1.1.7 Category definitions and rules.
3.2.1.1.8 Lifecycle and revision schemes.
3.2.1.1 .9 Property mapping including but not limited to iProperties, attributes, file properties, user defined properties (UDP's).
3.2.1.1.10 Automatic file naming schemes.
3.2.1.1.11 Engineering change order routings.
3.2.1.1.12 Collaboration settings.
3.2.1.1.13 Custom objects and labels.
3.2.1.1 .14 Thin client configuration.
3.2.1.1.15 Backup strategy & SQL server maintenance plan.
3.2.1.1.16 Inventory Project file configuration requirements.
3.2.1.2 Contractor Specific Tasks. Contractor shall be responsible for:
3.2.1.2.1 Reviewing the final hardware and software requirements.
3.2.1.2.2 Reviewing and defining configuration options.
3.2.1.2.3 Reviewing training requirements and setup.
3.2.1.2.4 Refining the plan and schedule, as necessary.
3.2.1.3 SVP Specific Tasks. SVP shall be responsible for:
3.2.1.3.1 Organizing internal resources needed for the meetings.
3.2.1.3.2 Supplying sample CAD (Computer Aided Design) files and drawings
3.2.1.3.3 Managing revision control/ change process documentation, templates, etc.
3.2.1.4 Required Resources
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3.2.2.3.1 Prepare Vault server(s), including but not limited to:
operating system (OS), Internet information services (IIS) & standard practices (SP's), network connectivity,
configuration, and security) according to Vault requirements.
3.2.2.3.2 Supply local administrator access to all required servers/workstations.
3.2.2.3.3 Create Vault services account(s).
3.2.2.3.4 Allocate time for implementation of Vault server(s) software and components.
3.2.2.3.5 Organize internal resources needed for "pilot" setup.
3.2.2.4 Required Resources
3.2.2.4.1 Contractor Technical Consultant (IMAGINiT).
3.2.2.4.2 SVP Project Team I Project Team lead, CAD and IT representatives, and other SMEs as may be required.
3.2.2.5 Deliverables
3.2.2.5.1 Installation and configuration of Vault "pilot" server(s) environment.
3.2.2.5.2 Updated Vault environment configuration document.
3.2.3 Pilot User Acceptance Testing Preparation
3.2.3.1 Contractor and SVP shall work together for Vault Pilot User Acceptance Testing (UAT).
3.2.3.2 Contractor shall be responsible for the following:
3.2.3.2.1 Prepare a written UAT plan (per Section 4.3) (Test Plan) that clearly documents the requirements and steps for Customer to follow.
3.2.3.2.2 Review UAT Test Plan with Customer.
3.2.3.2.3 Prepare UAT sample data import.
3.2.3.2.4 Install UAT workstation, including (a) deployment of CAD and Vault Clients; (b) deployment of CAD project files & template files; and (c) UAT Vault training (basic user training per UAT requirements).
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3.2.4.4.1 Vault UAT pilot testing period support.
3.2.4.4.2 Vault reconfiguration recommendations document (from UAT results).
3.3Production Implementation Phase Tasks
3.3.1 Production Rollout
This phase includes installation of the components necessary to build out the production Vault server environment based on prior task requirements, planning and results.
3.3.1.1 Contractor shall be responsible for the following:
3.3.1 .1.1 Production server components software: MS IIS, MS SQL server, and other components as required.
3.3.1.1.2 Install and configure production job processor server software.
3.3.1.1.3 Setup and install production workstation client software.
3.3.1.1.4 Setup and configure production server backup.
3.3.1.1.5 Configure production server environment.
3.3.1.1.6 Aid in the update of CAD design data, templates, and project files.
3.3.1.2 SVP shall be responsible for organizing internal resources if needed for further discussions.
3.3.1.3 Deliverables
3.3.1.3.1 Installation and configuration of Vault to production server.
3.3.1.3.2 Installation of Vault Client software to production workstations.
3.3.1 .3.3 Deploy CAD design data, templates, project files to production workstations.
3.3.2 Data Loading and Mastering. This phase includes examining, checking-in and properly mastering approximately 7,000 substation drawings and 1,000 generation-related AutoCAD drawings.
3.3.2.1 Contractor shall be responsible for the following:
Agreement with DL T Solutions, LLC
Rev. 07-01-18
delivery format. Contractor will lead this effort with
contribution from SVP.
3.4.1.1.3 Training Material Standards, Prototypes, and Templates - These work products detail the overall courseware standards for the training effort and includes details on the development process, e.g., storage, file naming, development process and sign-off, etc. Contractor will lead this effort.
3.4.2 End User Training Assumptions and Customer Obligations
3.4.2.1 Contractor's training lead will work with SVP training lead.
3.4.2.2 SVP is responsible for coordination of training, including enrolling and scheduling trainees and trainers and obtaining and preparing training facilities.
3.4.2.3 Exclusions:
3.4.2.3.1 Training Help Desk support and post-implementation support (training course maintenance) is not part of the
implementation training . If SVP subscribes to annual
ProductivityNow Support Services, post-implementation
support and training service will be provided as part of those services.
3.4.2.3.2 Contractor assumes that all users will be PC literate prior to training delivery. Basic PC training is not included in this effort.
3.4.2.4 SVP will be responsible for providing and supporting a training environment to be used in the development of training materials and to deliver end-user training. During training delivery this environment will be used to support demonstrations and exercises. SVP will be responsible for providing an environment that contains base data to support demonstrations and exercises.
3.4.3 Vault Professional Training. Rollout of the Vault production environment, deployment of remaining clients, and Vault training to SVP's engineering/design team members and administrators based upon the core features and functionality of Vault and SVP's specific workflow configuration.
3.4.3.1 Contractor shall be responsible for the following:
3.4.3.1 .1 Assist with deployment of Vault Clients to remaining users.
3.4.3.1.2 Supply Vault training Manuals.
Agreement with DLT Solutions, LLC
Rev. 07-01-18
systems into current Contractor systems), whether by manual or programmatic methods. The Data Migration and Conversion tasks identified below are within the Project scope.
3.6.2 Contractor will hold a data migration and conversion task for the applications in scope including data related to approximately 8,000 files of AutoCAD DWG Data. Data Migration and Conversion Assumptions and SVP Obligations
3.6.2.1 SVP will be responsible for data import, normalization and full data migration.
3.6.2.2 If issues are found with the current state of the CAD data that need to be corrected, Contractor shall supply migration assistance as an optional service at an additional cost. If approved by City, such additional cost shall be authorized pursuant to the provisions of Section 9. ·
3.6.2.3 SVP is responsible for all conversion activities, other than those identified as Contractor responsibilities herein. This includes but is not limited to the following:
3.6.2.3.1 Extracting and cleansing legacy data and
transforming/mapping into prescribed formats provided by Contractor.
3.6.2.3.2 Designing and building any conversion programs that may be required.
3.6.2.3.3 Reconciling and validating converted data and correcting and reloading data with errors.
3.6.2.3.4 Where the conversion method is manual, SVP is responsible for performing the data preparation and data entry.
3.6.2.4 Data Conversion Roles and Responsibilities:
3.6.2.4.1 Test Load Sample data: Sample tests will be performed to help ensure the end-to-end process is working.
• Lead: Contractor
• Assist: Customer
• Key Assumptions: Contractor will provide
guidance for sample data testing. Contractor will
provide data mapping guidance; Contractor will
assist with issue resolution as necessary.
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4.2.2.5 Determine Project priorities and approve all changes to Project scope.
4.2.2.6 Provide final review and approval of Project deliverables and milestones.
4.2.2.7 Monitor Project quality and integrity with respect to business goals.
4.2.2.8 Provide positive leadership and ongoing support to Core Project team members.
4.2.2.9 Identify and communicate any issues of concern throughout the Project.
4.2.2.10 Participate in Project meetings.
4.2.2.11 Be available to the Project to resolve issues that the Project management team cannot resolve promptly.
4.2.3 Weekly Status Reports and Meetings: Contractor shall provide a weekly Project status report and conduct weekly one-hour status meetings. Additional meetings will occur as mutually agreed between the Contractor Project Manager, SVP Project Manager, and key Project participants. The status report and associated meeting will focus on overall Project status and deliverables, issues/at risk items, key decisions, Project plan review/updates, escalations, and overall Project status as compared to plan.
4.2.4 Project Issue Escalations: From time to time, issues that are negatively impacting Project progress will arise that require urgent SVP attention. The Contractor Project Manager will act as the point of escalation for urgent issues that require the attention of SVP. When Project items are escalated, SVP shall:
4.2.4.1 Respond within two (2) business days where Project progress is being negatively impacted but is not halted.
4.2.4.2 Respond within one (1) business day where Project progress is blocked.
4.2.5 Project Change Control Process. Project changes such as, but not limited to, changes in costs, timing, scope, or deliverables will be managed in accordance with Section 9, Additional Services/Licenses. Change Control Process will be invoked before any unplanned or out of scope work is executed or any work is completed outside the Customer's regular business hours. Any additional effort/costs because of such work would be subject to the process in Section 9.
Agreement with DL T Solutions, LLC
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4.4.5 Upon completion of each Project deliverable set forth above, Contractor shall provide the deliverable to the Customer. Customer has five (5) business days after submission of the deliverable or completion of the activity ("Acceptance Period") to give Contractor written notice specifying any deficiencies of such deliverable or activity against the description for such deliverable or activity specified in this Agreement in detail. If provided with such notice, Contractor shall make reasonable efforts to promptly cure any such deficiencies. After completing such a cure, Contractor shall resubmit the deliverable or perform the activity for Customer review as set forth above (with a new five (5) day Acceptance Period beginning on the date that such resubmittal was received by Customer. Customer's acceptance shall be in writing; however, if Customer fails to provide written notice of any deficiencies (or written acceptance) within an Acceptance Period, as provided above, such deliverable or activity shall be deemed conclusively accepted at the end of the Acceptance Period.
SECTION 5. POST IMPLEMENTATION TRAINING AND
SUPPORT SERVICES
5.1 Post implementation training and support services will be available through an optional annual subscription to IMAGINiT ProductivityNOW Professional Support and elearning. Services include, but not limited to:
5.1.1 Knowledge Capture & Sharing Portal with Priority Support including, but not limited to:
5.1.1.1 Unlimited access to the entire library of Autodesk related elearning courses, how-to videos, and other productivity content.
5.1.1.2 Ability for managers to capture and publish company specific content, manage user accounts and access learning reports.
5.1.1.3 Priority access to technical support via telephone, online chat, and email, including electronic screen sharing.
5.1.1.4 Five (5) hours (per contract year) of design assistance including scheduled 1-on-1 time with an expert for 'How-To' and/or Project related assistance.
5.1.2 Contractor will assign a ProductivityNOW Success Manager to assist with the implementation, administration, and ongoing user communications to drive user awareness of the ProductivityNOW benefits available to SVP.
Agreement with DL T Solutions, LLC
Rev. 07-01-18
Task
1. Define, Develop, Implement and
Monitor Project Governance.
2. Develop Project Report as a Part of Project
Governance Process
3. Escalate Project Related Matters Needing
Attention
4. Perform Project Management
Functions/Implement Project
Governance
5. Act as Primary Point of Contact for
Program Communication
6. Manage Program Resources, Resolve
Personnel Issues, Fix Problems
7. Manage Scope (as a part of Project
Governance)
8. Manage Senior Management Communication
9. Provide High Level Guidance to the Teams
10. Define, Manage, Maintain, Report and Enforce
Quality
11 . Meet per Project plan to Review Project Status
12. Define, Design, Perform and Verify OCM
13. Make Decisions on Project Issues
14. Identify, Discuss, Review, Verify and
Implement Deliverable Acceptance
Criteria
15. Facilitate workshops or pilots to ensure
business requirements are met.
16. Provide Licensed Software Knowledge and
expertise during the Project's lifecycle.
Agreement with DL T Solutions, LLC
Rev. 07-01 -18
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7.3Resource Assumptions and Customer Obligations
7.3.1 SVP acknowledges that all Project timelines are subject to timely provision of resources and performance of obligations.
7.3.2 SVP will provide, at no charge to Contractor, personnel to carry out administrative functions on behalf of the Contractor Project team. SVP may, at its discretion, choose to assign multiple people to cover the required tasks.
7.3.3 The Core Project Team, including Contractor and SVP team members, will be co-located at SVP's office, located at 881 Martin Avenue, Santa Clara, California, 95050, for all onsite Project work.
7.3.4 Customer Core Team Members: SVP will assign experienced representatives from all the areas within scope for the duration of the Project, to ensure all activities are completed within the established timeline. These individuals will be qualified to define requirements for their respective disciplines and will be empowered to make decisions, including deliverable signoffs, and will engage other subject matter experts as needed.
7.3.5 Customer subject matter experts (SMEs): In addition to SVP core team members, SVP's SM Es will be required from affected areas of the business to participate in business process requirements reviews and design workshops.
SVP will ensure these resources are identified in advance and are readily available to participate in meetings workshops and test events as defined in the Project work plan to keep the Project on schedule.
7.3.6 SVP will have full time technical resources assigned to the Project, while the Contractor technical resource will serve as an advisor for all technical activities in this Project. This should allow the Contractor to transfer knowledge and ownership of technical tasks to the SVP technical team, which should result in decreased Contractor involvement over time.
7.3.7 Contractor staffing requirements will be determined solely by Contractor but shall be sufficient to complete the scope of services, trained and experienced in the functions they are to perform and are subject to the provisions of Section
1.5. SECTION 8. OTHER ASSUMPTIONS AND OBLIGATIONS
8.1 If not referenced elsewhere in this Agreement, the following assumptions and obligations shall apply:
8.1.1 Any additional requirement(s) not specified in this Scope of Services that are identified during the Project will be addressed using the Project Change Control Process
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such as though the Project Change Control Process, Contractor may submit a proposal without a Work Request.
9.2Contractor shall prepare and submit a Proposal (Proposal) for each Work Request that includes:
9.2.1 A work plan that includes a detailed description of the licenses required and/or services to be performed.
9.2.2 A project timeline/schedule with discussion on any activities that may impact the project timeline/schedule.
9.2.3 Any required documents.
9.2.4 A list of City responsibilities.
9.2.5 A final acceptance criteria.
9.2.6 An itemized cost proposal showing:
9.2.6.1 Hours and hourly rates by position for both Contractor and subcontractor personnel if applicable.
9.2.6.2 Itemized license cost and quantity.
9.2.6.3 Reimbursable expenses, in accordance with the limitations set forth in Exhibit B.
9.2.6.4 Any additional costs including, but not limited to freight, permits, or fees.
9.2.6.5 Breakdown of materials and labor sufficient to calculate required taxes.
9.2.6.6 Estimated total cost including any required taxes.
9.2.6.7 All submitted pricing shall be in accordance with the rates authorized in Exhibit B of this Agreement and the Proposal shall include sufficient information for the City to determine that rates are in accordance with the Agreement.
9.2.7 Cost for any additional equipment, parts, or services required for completion of services as detailed in the Work Request and in Contractor's Proposal but not reflected in the Contractor's cost proposal shall be the sole responsibility of the Contractor and at no cost to the City.
9.2.8 The City will review the Proposal, and may elect to approve it, reject it, or use it as a basis for further negotiations with Contractor.
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9.3.5 Only the Assistant Director of the Electric Utility, Electric Utility Chief Operating Officer, or Chief Electric Utility Officer may, on behalf of the City, execute a Work Authorization.
9.3.6 Changes to Work Authorization:
9.3.6.1 Contractor shall notify the City immediately when a situation occurs that may result in a change to the total project cost or specific line items in a Work Authorization or Purchase Order. Contractor shall provide the reason for the change specific to each Work Authorization or Purchase Order.
9.3.6.2 If Contractor requires changes to a fixed price Work Authorization, Contractor shall only be permitted to request changes with justification such as additional scope requested by City or unanticipated conditions. For such changes, Contractor shall submit justification demonstrating that changes in cost are associated with changes in scope. Contractor shall not be entitled to additional compensation for issues such as errors in calculation of original pricing, changes in staff, or other changes that are not directly related to changes requested by City.
9.3.6.3 In the event that unanticipated site conditions or other issues result in costs that exceed the total of the Work Authorization or Purchase Order or changes to line items in a Purchase Order, Contractor shall submit to the City an updated Proposal for review and approval from the City in advance of performing any additional services. The City will issue a new or amended Work Authorization (if required pursuant to Section 9.3.2) or Purchase Order (as applicable) to authorize such additional services.
9.4A Work Authorization must be consistent with - and cannot alter - the terms and conditions of this Agreement. The terms and conditions of this Agreement shall prevail over any and all terms and conditions contained in a Work Authorization or Proposal - even if the Work Authorization or Proposal expressly states that it is intended to control. Any conflicting terms and conditions in a Work Authorization or Proposal are invalid and unenforceable.
9.5Each Work Authorization and Purchase Order shall be incorporated into the Agreement by reference and subject to its terms and conditions and the Services contained therein shall be included within the Services.
9.6If Contractor begins services or fails to dispute a Purchase Order within three (3) business days, Contractor is assumed to have accepted the terms of the Purchase Order.
9. 7The City, through the individuals listed in Section 9.3.5 may terminate a Work Authorization or Purchase Order for convenience with ten (10) days prior written notice to Contractor. In such event, the Contractor shall have no further rights Agreement with DL T Solutions, LLC
Rev. 07-01-18
office or job site. Under no circumstances will the usage of e-Builder be grounds for a time extension or cost adjustment to the Agreement.
10.6 Data entered in a collaborative mode (entered with the intent to share as determined by permissions and workflows within the e-Builder system) by the City and the Contractor will be jointly owned.
10. 7 Contractor is responsible for managing, tracking, and documenting the Services to comply with the requirements of this Agreement. The City's acceptance via automated system notifications or audit logs extends only to the face value of the submitted documentation and does not constitute a validation of the Contractor's submitted information.
10.8 At the City's sole discretion, project documents may be processed and distributed digitally over the internet or may be required to be presented in hard copy format.
10.9 While regular email may still be used for communication, when requested by the City, e-Builder shall be utilized as much as possible in connection with all document and information management required in the performance of projects where City has directed the use of e-Builder. Contractor shall be responsible for scanning or otherwise converting to electronic format all project submittals and Contractor correspondence, drawings, sketches, etc., and uploading them to the e-Builder website and shall be responsible for the validity of the information placed in e-Builder. The Contractor shall utilize the existing forms and processes in eBuilder to the maximum extent possible. If a required form does not exist in eBuilder, the Contractor shall include a form of its own or one provided by the City (if available) as an attachment to a submittal or process. Documents and information to be submitted electronically include, but are not limited to:
10.9.1 Correspondence.
10.9.2 Meeting minutes.
10.9.3 Product data, reports, certifications, etc. must be submitted in PDF. (If a sample can be scanned, it is requested that a scanned PDF copy be submitted with the sample.
10.9.4 Requests for Information (RFl's).
10.9.5 Submittals and shop drawings.
10.9.6 Change order requests and documentation, including record copies of change orders, proposals, and modifications.
10.9. 7 Pay applications.
Agreement with DL T Solutions, LLC
Rev. 07-01-18
EXHIBIT B
SCHEDULE OF FEES AND PAYMENT PROVISIONS
SECTION 1. MAXIMUM COMPENSATION
1.1 The maximum compensation payable to Contractor during the Term shall not exceed the amount in Section 6 of this Agreement.
SECTION 2. ONE-TIME SYSTEM IMPLEMENTATION FEES
2.1 All the cost of implementing Autodesk Vault as outlined is Exhibit A shall be paid on a fixed fee basis at completion of services. The breakdown is provided in Table 81 below.
T a bl e 81 - 0 ne-T ,me mp emen t a f ton C OS t 8 rea kd own Fixed Fee Billing ID Fixed Fee*
Project Management $6,666.67
Autodesk Vault Professional Implementation as defined in Section 2.4 $18,888.89 and Section 3.1 - 3.3
Autodesk Vault Professional Implementation (Training) as defined in $10,000.00 Section 3.4
lmaginit Design Assistance Support 8 Hours ($261.11/hour) $2,088.88 Customer AutoDesk Vault Professional: Essentials Training Class 1 $12,500.00 Custom Training Course for 45 Students over five (5) days Total $50,144.44
2.2Sales tax are not applicable to the services or subscription. To the extent that sales or use tax is applicable, Contractor is responsible for invoicing such sales tax and remitting pursuant to applicable law.
2.3Travel and associated expenses are not included in the rates or estimated fees stated herein and are in addition to such fees. Expenses for travel shall be invoiced in accordance with Exhibit 8, Section 3.2(5).
SECTION 3. ONGOING SOFTWARE LICENSE,
MAINTENANCE, AND SUPPORT FEES
3.1 Table 82 sets forth the fees for the initial three years of the Agreement. Increases to the fees are subject to Section 3.1 below.
Table 82: Ongoing Software License, Maintenance, and Support Fees Agreement with DL T Solutions, LLC
Rev. 07-01 -18
3.3.1 Except for ProductivityNOW, Contractor may request to increase labor rates up to 4% annually subject to Section 3.3.3. After the first twelve months of ProductivityNOW, rates may be negotiated annually.
3.3.2 After the initial three years of the Agreement, rates for Vault Professional License Subscriptions and Vault Server and Client Utilities may be negotiated no more than once annually.
3.3.3 Contractor shall notify the City ninety (90) days in advance of any proposed rate increase. Any rate increases are subject to approval by the City and must be substantiated by the Contractor to the satisfaction of the City. Except as specified in Section 3.1.1, All rate adjustments must be approved by the City through an amendment to this Agreement. References to alternate rates in quotes that have not been separately authorized pursuant to this section are not approved.
3.4Reimbursable Expenses: Contractor may pass through costs such as printing, materials, equipment, etc. in Reimbursable Expenses Schedule in this Section.
Expenses shall be reimbursable only to the extent that (1) Contractor submits sufficient documentation to City that the expenses were directly incurred in providing the required Services, (2) Contractor demonstrates that such expenses aren't included in the hourly rate where applicable, (3) such expenses were approved in advance, (4) Contractor submits receipts, invoices, or other supporting documentation demonstrating that such reimbursable costs were incurred.
Reimbursable Expense Schedule
1. The cost of mailing, shipping and/or delivery of any documents or materials.
2. The cost of photographing, printing, reproducing
and/or copyinq any documents or materials.
3. Other reimbursable expenses with prior written
approval from the City
4. Allowable mileage will be charged at the prevailing
IRS rate per mile. Mileage is not applicable to rental
cars. Rental cars are reimbursed at actual cost only.
5. Unless approved in writing (e-mail acceptable) in
advance, meals, lodging, and related per diem shall
not exceed the rates outlined by United States
General Services Administration (GSA).
https://www.gsa.gov/travel-resources. Airfare or
rental car, where applicable shall be at economy
rates.
SECTION 4. PAYMENT PROVISION
4.1 Contractor shall email all invoices to SVP [email protected].
Agreement with DL T Solutions, LLC
Rev. 07-01-18
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EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Contractor's 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, 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. 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 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, non-owned and hired autos.
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 Agreement with DL T Solutions, LLC
Rev. 07-01-18
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 Contractor'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 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 D of this Exhibit C, above.
G. 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 Services 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 Services reserves the right to charge Agreement with DL T Solutions, LLC
Rev. 07-01-18
be an insurance company of equal financial stability that is approved by the City or its insurance compliance representatives
Agreement with DL T Solutions, LLC
Rev. 07-01-18
capitalized terms are defined in these Terms, including in Section 18 (Definitions) below.
2. Special Terms
Some Offerings may be subject to special terms set forth in the Special Terms (https:/ /www .autodesk.com/company/terms-of-use/en/specialterms) or in the Documentation for the Offerings ("Special Terms").
You agree to the Special Terms, if any, for an Offering that You subscribe to, access, or use.
3. Return For Refund
For a limited period, if You (a) object to any of these Terms, (b) object to any Autodesk terms of purchase or auto-renewal applicable to the purchase or renewal, or (c) are dissatisfied (for any reason) with the Offering to which You subscribed, You may return the Offering and may qualify for a refund under the Autodesk Return Policy
(https://www.autodesk.com/customer/help ?guid=G U I D-0 D? 58126-D BBC4489-8DBF-924977E9DC94#refund-policy).
4. Your Account
You are responsible for anyone who obtains, accesses, or uses Offerings through You or Your account (including Your Authorized Users) and their compliance with these Terms as though each of them is You. In certain cases, Your Authorized Users may be required to set up individual accounts or agree to applicable terms in order to obtain, access, or use Offerings, but You remain responsible. You also agree to secure and not share user IDs or passwords (except with authorized account administrators). If You suspect unauthorized use of Your account, please contact https://www.autodesk.com/trust/ contact-us
(https://www.autodesk.com/trust/contact-us).
5. Your Own Work
You will retain Your ownership rights to files, designs, models, data sets, images, documents or similar material created by You (or Your Authorized Users) and submitted or uploaded to an Offering by You (or Your Authorized Users).
6. Privacy
Autodesk is committed to protecting Your privacy and letting You know what Autodesk will do with Your personal data. Autodesk's Privacy Statement (https://www.autodesk.com/company/legal-notices-trademarks/privacystatement) sets forth how Autodesk may collect, use, store and process Agreement with DL T Solutions, LLC
Rev. 07-01-18
solely for Your backup and archival purposes for the duration of the Offering Term.
8.2 Access to Software and Cloud Services
Subject to compliance with these Terms, Autodesk will, during the Offering Term, make Offerings available to You through Your account or other electronic means. Autodesk will not be liable for any losses or other liability incurred by You or others due to sending Your account information to an incorrect address. You may be required to log into Your account or provide Autodesk additional information to activate, access, or use an Offering.
Some Offerings may cause Your computers or other devices to automatically connect to the internet (intermittently or on a regular basis)- for example, to validate the proper use of Your subscription, provide You with access to services (including third-party services), or download and install Updates or Upgrades, all without further notice to You. You and Your Authorized Users agree to such connection and to validation of Your subscription and to the automatic downloading and installation of Updates and Upgrades. You may not be able to adjust Your Update or Upgrade settings for certain Offerings, including those for which automatic Updates or Upgrades are required for operation or security of the Offering.
During the Offering Term, Autodesk may make available or deliver Updates or Upgrades to Software. You will promptly install any mandatory Updates.
8.3 AutoDesk APls
In connection with an Offering, you may have access to standard application programming interfaces, software development kits, tools, libraries, scripts, sample source code and similar developer material (collectively, "APls").
Unless otherwise specified in the applicable Special Terms (including Documentation}, You may use the APls only (a) for the Offering for which you have a subscription and for which the APls are provided, (b) during the Offering Term, (c) in accordance with the Special Terms (including Documentation) specific to the APls, and (d) to develop applications, services, modules, or components solely for Your internal business use.
8.4 Use of Third Party Material and Services
Autodesk may provide You with content, designs, models, data sets, project information, documents, libraries, audio, links, data, applications and other software, services, or other material of a third party (collectively, "ThirdParty Material/Services") in connection with Offerings. Any Third-Party Material/Services may be governed by different terms found in or with such Third-Party Material/Services (for example, in the "About Box," a .txt file, or accompanying license terms), on a registration page of a third party, or in the Special Terms (including Documentation) for the Offering for which the Agreement with DL T Solutions, LLC
Rev. 07-01-18
others may be able to use, sell, reproduce, modify, distribute, make available, display, transmit and communicate Your Content, and suspending or terminating access will not delete or inhibit access to any of Your Content that was earlier shared or published. If You do not want others to have any such access or any of those rights, do not use the sharing, publishing, or other collaboration features of the Offerings and set Your permissions accordingly. Keep in mind that forums and galleries may be public, and submissions are generally public.
An Offering may feature links to Third-Party Material/Services. Such links are provided as a convenience to You. Autodesk does not monitor or control what such third parties will do with Your Content. You are responsible for ensuring the appropriate level of access to Your Content by any third party.
If You authorize any of Your Content to be shared with any third party, Autodesk may make Your Content available to such third party; Autodesk will, however, have no responsibility or liability for the actions of such third party.
9. Trial Versions
Autodesk may make available or deliver Offerings (or features of an Offering) described as "not for resale , " "free , " "evaluation , " "trial ' " "prerelease," "beta," or another similar designation (collectively, "Trial Versions"). Except as expressly set forth in the Documentation for the Trial Version or applicable Special Terms, (a) you may access or use the Trial Version only for a period of 30 days from download or receipt, (b) Your use will be limited to non-commercial evaluation purposes, (c) the use of a Trial Version will be only by You as an individual or, if You are an entity, by one named employee, and (d) the Trial Version may only be used within the Territory where You acquired the Offering.
Notwithstanding any other provisions in these Terms, (i) Autodesk makes no commitments with respect to Trial Versions, including any commitment to continue any Trial Version or to convert any Trial Version into an Offering; (ii) Autodesk constantly conducts research to improve our Offerings and makes no commitment that such research will be commercially released in an Offering; and (iii) Trial Versions may contain code that is not fully tested, including errors and faults that may cause total data loss or system failure.
Subscriptions to Trial Versions do not include subscription Benefits, and Autodesk reserves the right, without any further notice, to end any Trial Versions at any time.
10. Feedback
If You provide Autodesk with ideas for improvement, suggestions, or other feedback (collectively, "Feedback"), You hereby grant to Autodesk a nonexclusive, transferable, irrevocable, worldwide, royalty-free license (with Agreement with DL T Solutions, LLC
Rev. 07-01-18
11.3 Acceptable Use of Offering
You will access and use (and permit access to and use of) Offerings only in compliance with the Acceptable Use Policy
(https ://www.autodesk.com/com pa ny/terms-of-use/en/acceptable-use) and all applicable laws.
12. Confidentiality
You or Autodesk (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party") in connection with these Terms. The Receiving Party will use the same degree of care as to the Disclosing Party's Confidential Information that it uses to protect its own confidential information of like kind (but in no event less than reasonable care) and will (a) use the Confidential Information of the Disclosing Party only in connection with Offerings, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to the Confidential Information of the Disclosing Party to those of its employees, consultants, contractors, service providers, professional advisors and other individuals who need such access for purposes related to Offerings and who are subject to confidentiality obligations with the Receiving Party no less stringent than those in these Terms. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so. The Receiving Party will give the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and take reasonable steps to limit such disclosure. Autodesk may also disclose Your Confidential Information to comply with any governmental or regulatory body request (including subpoenas or court orders), as part of a legal proceeding involving Autodesk, or at Your request. If disclosure is made at Your request, You may be responsible for the costs of compiling and providing access to Your Confidential Information.
13. Autodesk Proprietary Rights
You acknowledge and agree that Autodesk and its licensors and suppliers will have ownership of and all rights with respect to (a) the Offerings, Documentation, APls, and other information or material made available to You by Autodesk, including any copies of the foregoing, (b) any materials or other information based on, derived from, or otherwise using any of the foregoing (including Metrics), and (c) all rights under trade secrets, copyrights, trademarks, patents, and any other intellectual property or proprietary rights relating to any of the foregoing. The structure and organization, the underlying algorithms and other internals, the protocols, data structures and other externals, and the source code of the Offerings and the APls constitute proprietary and confidential information of Autodesk, and You will not disclose such information to third parties, or use such information for any purpose other than as required for ordinary-course Agreement with DL T Solutions, LLC
Rev. 07-01-18
FAUL TS," AND WITHOUT WARRANTY OR CONDITION OF ANY KIND AND (b) AUTODESK AND ITS LICENSORS AND SUPPLIERS MAKE,
AND YOU RECEIVE, NO WARRANTIES, REPRESENTATIONS,
CONDITIONS, OR COMMITMENTS OF ANY KIND, EXPRESS OR
IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO ANY OF THE
OFFERINGS OR ANY OUTPUT, INCLUDING ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, OR QUIET ENJOYMENT, ANY WARRANTIES OR
CONDITIONS IMPLIED BY STATUTE, OR ANY WARRANTIES OR
CONDITIONS BASED ON A COURSE OF DEALING, USAGE OF TRADE OR INDUSTRY STANDARDS. Any statements by Autodesk or its thirdparty agents, representatives, or service providers about the Offerings (including any statements about their functionality or performance) or Output, or other communications with You (including any insights, recommendations, guidance, assessments, projections, estimates or opinions), that are not contained in these Terms (including any Additional Agreement or Special Terms) are for information purposes only and do not constitute a warranty, representation, condition, or other commitment.
Without limiting the generality of the foregoing, Autodesk and its licensors and suppliers do not warrant or otherwise commit that (i) the Offerings or Output, or Your access thereto or use thereof, will be available, uninterrupted, timely, error-free, secure, accurate, reliable, or complete, (ii) the Offerings will meet any particular performance, availability or servicelevel criteria, (iii) Your Content will not be lost or damaged, or (iv) errors or defects will be corrected or any particular support requests will be resolved to meet Your needs or expectations. Also, for clarity, (1) any reference to "unlimited" access, use, storage, or otherwise with respect to an Offering is subject to the technical limitations of the Offering, and (2) some Offerings or functionality may not be available in all locations (including the Territory) or languages.
14.3 Limitations on Liability
NEITHER AUTODESK NOR ANY OF ITS LICENSORS OR SUPPLIERS
WILL HAVE ANY LIABILITY (DIRECTLY OR INDIRECTLY) FOR ANY
INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES; LOSS OF PROFITS OR REVENUE; BUSINESS
INTERRUPTION OR LOSS OF USE; COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR SERVICES OR OTHER COVER; FAILURE OF, OR DEFECTS IN, THE OUTPUT; LOSS, CORRUPTION, OR DELETION OF (OR FAILURE TO DELETE) DATA OR YOUR CONTENT; OR
DAMAGES RESULTING FROM FORCE MAJ EURE. THE AGGREGATE
LIABILITY OF AUTODESK AND ITS LI CENSORS AND SUPPLIERS WITH
RESPECT TO ANY OFFERING OR OUTPUT THEREOF WILL IN NO
EVENT EXCEED THE GREATER OF (a) THE AMOUNT PAID OR
PAYABLE BY YOU FOR THE OFFERING IN THE ONE-YEAR PERIOD
Agreement with DL T Solutions, LLC
Rev. 07-01-18
Autodesk, (ii) the IP Claim covers any method or process not fully embodied in the Covered Offering, (iii) there is available an Update or Upgrade that avoids the infringement alleged in the IP Claim, or (iv) You have been in breach of these Terms. If Autodesk receives information about an infringement claim related to any Offering, Autodesk may, in its discretion, (1) modify or replace the Offering, (2) obtain a license for Your continued use of the Offering, and/or (3) terminate Your subscription for the Offering and refund any prepaid fees covering the remainder of the Offering Term of the terminated subscription. This Section 15 states Autodesk's sole obligations and Your exclusive remedy for any infringement of any thirdparty intellectual property rights
16. Term, Termination, Suspension
These Terms become effective on the first date accepted in accordance with Section 1 (Acceptance) above and continue in effect indefinitely unless terminated in accordance with the provisions of these Terms, including this Section 16.
16.1 Your Right to Terminate
You may terminate Your subscriptions and these Terms if Autodesk is in material breach of these Terms and fails to cure such breach within 30 days after written notice of the breach.
16.2 Autodesk's Right to Terminate or Suspend a Subscription or Account
Autodesk may terminate (or disable or suspend Your access to and use of) any or all of Your subscriptions or other Offerings, or terminate these Terms and Your account, if (a) You have no current paid subscriptions; (b) You have failed to timely pay any amounts (including fees and taxes) owing to Autodesk; (c) You (including any of Your Authorized Users) are otherwise in material breach of these Terms and fail to cure such breach within 30 days after written notice of the breach; or (d) You become subject to bankruptcy or insolvency proceedings, become insolvent, make an arrangement with or affecting Your creditors (including an assignment for the benefit of creditor) or commence a process of liquidation. These Terms will automatically terminate without further notice or action by Autodesk if You go into liquidation. Autodesk may also immediately disable or suspend Your access to and use of Offerings and Your Content if Autodesk believes in good faith that Your (or Your Authorized Users') conduct or failure to act, or Your Content, may (i) pose a security risk, constitute illegal activity, or otherwise adversely impact Offerings, systems, or other users, (ii) constitute or enable tampering with, removing, disabling or otherwise limiting the effectiveness of any technical protections, or (iii) subject Autodesk, or its Agreement with DL T Solutions, LLC
Rev. 07-01-18
17.1 Changes to the Offerings
Autodesk reserves the right from time to time to (a) modify, discontinue, or substitute an Offering (including any Benefits, features, functionality, or supporting services related to the Offering), or (b) add or modify license keys, authorizations or other means of controlling or measuring access to or use of the Offerings. Autodesk will endeavor to notify You of any major changes to an Offering in the applicable release notes or other Documentation for the Offering.
17.2 Changes to Terms
To the maximum extent permitted by applicable law, Autodesk reserves the right from time to time to (and You acknowledge that Autodesk may) modify these Terms. Autodesk will endeavor to notify You of any changes to these Terms ("Terms Modification Notice"), including by posting to this site. It is your responsibility to regularly check this site for updates, including Terms Modification Notices. Except as otherwise expressly set forth in these Terms, if any modification to the Terms has a material adverse effect on You and You do not agree to the modification, You may reject the modification by notifying Autodesk of the rejection within 30 days of the Terms Modification Notice. If You reject a modification under these circumstances, (a) Your access to and use of any Offerings affected by the modification will continue to be governed by the terms in effect immediately before the modification (except to the extent the modification was made for security, privacy, or legal compliance reasons, in which case the modification will be effective immediately) until the earlier of (i) the end of the applicable Offering Term, or (ii) 180 days after the Terms Modification Notice; and (b) Your rights to such Offerings, including any related subscription Benefits, will then terminate. In the event of such a termination by You, Autodesk (or the party from whom You purchased Your subscription) will refund the prorated portion of any prepaid fees applicable to the remaining Offering Term of Your subscription for the affected Offerings after the effective date of termination. In any event, if any subscription is renewed or extended, it will be under the then-current Terms.
Notices by You or Autodesk will be provided as set forth below, except that You may also provide Your notice of rejection via email (within the 30-day period described above) to the following email address:
Terms. Modification. [email protected]
(mailto:[email protected]). or in any other manner specified in the Terms Modification Notice.
Notwithstanding the forgoing, if the Special Terms, Offering Types and Benefits, or other policies include different terms or procedures for modification thereof, modification may, at Autodesk's option, be handled as described therein.
Agreement with DL T Solutions, LLC
Rev. 07-01-18
Mainland China, Hong : Autodesk, Inc., a
Kong, and Macau Delaware
Asia, Oceania, and the
Asia-Pacific region,
other than Mainland
China, Hong Kong, and
Macau
Europe, the Middle
East, and Africa
Worldwide (unless in a
country or region
described above),
including Mexico, South
America, Central
America, Caribbean
re ion, and Antarctica
corporation
Autodesk, Inc., a
Delaware
corporation
Autodesk Ireland
Operations
Unlimited Company,
an Irish cC>_m~an_y
Autodesk, Inc., a
Delaware corporation
Singapore
Singapore
(i) State of California,
and (ii) to the extent
controlling, federal laws
of the United States
and (to the extent not
inconsistent with such
section) in accordance
with the arbitration
rules of ADR Services
as in effect when the
notice of arbitration is
submitted. The seat of
the arbitration will be
San Francisco.
Arbitration
administered by the
Singapore
International
Arbitration Centre
("SIAC") in accordance
with the Arbitration
Rules of the SIAC as in
effect when the notice
of arbitration is
submitted. The seat of
the arbitration will be
Singapore.
---=-- -
Courts of Singapore
Courts of Ireland
(i) United States District
Court for the Northern
District of California in
San Francisco, or (ii)
courts of the State of
California, County of San
Francisco.
(b) Binding Arbitration and Dispute Resolution for United States and Canada If Your principal place of business (or, if You are an individual, Your residence) is in the United States or Canada, the following informal dispute resolution and binding arbitration provisions apply to You"
(i) Informal Dispute Resolution and Binding Arbitration Agreement with DL T Solutions, LLC
Rev. 07-01-18
designated the "Initial Test Cases" and will proceed to arbitration. The filing fees will be paid only for the Initial Test Cases; for all other Claims, the filing fees (together with any arbitrator consideration of the other Claims) will be held in abeyance, and neither You nor Autodesk will be required to pay any such filing fees. The arbitrator will render a final award for the Initial Test Cases within 180 days after the initial pre-hearing conference, unless such period is extended by the arbitrator. Thereafter, the results of the Initial Test Cases will be given to a mediator, and such mediator and the parties will have 90 days from the mediator's appointment (the "Mediation Period") to agree on a resolution or substantive methodology for resolving the remaining Claims. If the parties are unable to resolve the remaining Claims during the Mediation Period, either party may choose to opt out of the binding arbitration process and proceed in court with the remaining Claims. Notice of any opt-out must be provided in writing within 60 days after the close of the Mediation Period.
Absent notice of an opt-out, the remaining Claims will be arbitrated individually in the order determined by the sequential numbers assigned to the Claims in the Mass Filing. Filing fees for each Claim will be due upon commencement of the arbitration of such Claim.
(iv) Determination of Arbitrability, Enforcement of Rights The arbitrator will have the right to determine the arbitrability of any Claim.
Notwithstanding the foregoing arbitration provision, each party may enforce its, or its Ii censors', patent, copyright, or trademark rights in any court of competent jurisdiction.
(c) Waiver of Class or Consolidated Actions
All Claims arising out of, or relating to, an Offering or these Terms must be arbitrated or litigated on an individual basis and not on a class basis. Claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.
(d) Injunctive and Other Equitable Relief
Notwithstanding any other provisions of these Terms, if a Claim is subject to resolution in the specified court or courts under Section 17.4(a) (General) above, Autodesk may apply for injunctive relief and other equitable remedies (or their equivalent) in any jurisdiction or forum, including any available court. If a Claim is subject to arbitration, either party may apply to a court of competent jurisdiction for interim measures necessary to preserve the parties' rights, including prearbitration attachments or injunctions, and any such request will not be deemed incompatible with, or a waiver of, the agreement to arbitrate.
17.5 Force Majeure
Agreement with DL T Solutions, LLC
Rev. 07-01 -18
for use by You or on Your behalf, subject to these Terms and with only those rights as are granted to all other Autodesk customers and their Authorized Users pursuant to these Terms. These Terms apply to Governmental Entity customers and Authorized Users except to the limited extent You are prohibited by the laws of Your jurisdiction from accepting any provisions of these Terms. If and to the extent any provision of these Terms is so prohibited, such provision will be deemed modified only to the extent reasonably necessary to conform to applicable law but to give maximum effect to the provision as written.
17.8 Verification of Compliance
Autodesk reserves the right to verify Your compliance with these Terms and may, at its discretion, do so by providing you with a report regarding Your noncompliant use of Offerings and/or by conducting a remote or on-site audit (any such action, a "Verification").
If a remote or on-site audit is required, Autodesk or its representative will provide You electronic written notification. You must use an Autodeskapproved tool to gather information from all devices accessing Your Offerings and obtain any necessary access and consent from Your Authorized Users. Within 15 calendar days of audit notification, You must submit Your audit results to the notifying party. Audit results must include machine IDs, serial numbers, Autodesk IDs, NT/Windows username, device ID and other information relating to Your Offerings.
If, through a Verification, Autodesk determines You are in violation of these Terms, You must immediately purchase new Offerings at least equal to the total of the value of the identified noncompliance and Autodesk's reasonable costs to complete the Verification.
Failure to comply with this Section 17.8 is a material breach of these Terms.
Autodesk reserves the right to suspend and/or terminate Your access to Offerings as set forth in Section 16.2 (Autodesk's Right to Terminate or Suspend a Subscription or Account) above, as well as to seek any other remedies available at law or in equity as set forth in Section 17.4 (Autodesk Party, Governing Law, Dispute Resolution) above.
17.9 Assignment
You may not assign or otherwise transfer these Terms or Your rights or obligations under these Terms (whether by operation of law or otherwise) without Autodesk's prior written consent, and Autodesk may terminate these Terms (including Your rights under these Terms) if You are acquired by, or come to be controlled by, any other person or entity (whether by acquisition of shares, merger, or other transaction) without such written consent of Autodesk. Autodesk may assign or otherwise transfer these Agreement with DL T Solutions, LLC
Rev. 07-01 -18
there is any conflict between these General Terms or the Special Terms and the Additional Agreement, the Additional Agreement will control in relation to its subject matter to the extent set forth in the Additional Agreement.
Failure to enforce or exercise any provision of these Terms is not a waiver of such provision, unless such waiver is specified in writing and signed by the party against which the waiver is asserted.
17.13 DMCA
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the internet infringes their rights under U.S. copyright law. If You believe in good faith that materials made available by or through Autodesk infringe Your copyright, You (or Your agent) may send Autodesk a notice requesting that Autodesk remove the material or block access to it. If You believe in good faith that someone has wrongly filed a notice of copyright infringement against You, the DMCA permits You to send Autodesk a counter-notice.
Notices and counter-notices are required to meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ (http://www.copyright.gov/) for details. Notices and counter-notices should be sent to:
Copyright Agent Autodesk, Inc.
The Landmark @ One Market, Ste. 400
San Francisco, CA 94105 USA
E-mail: [email protected]
(mailto:[email protected])Tel: +1 (415) 507.5000 Fax:+ 1 (415) 507.6128
Autodesk suggests that You consult Your legal advisor before filing a notice or counter-notice.
18. Definitions
"Additional Agreement" means any agreement signed directly with an Autodesk entity that expressly supplements or amends the Terms (for example, an enterprise business agreement).
"Authorized Users" or "Your Authorized Users" means (a) You (if You are an individual) and (b) identified individuals (such as Your individual employees, consultants and contractors and other individuals accessing and using an Offering) for whom You have acquired a subscription to an Offering. If an Offering allows You to designate Authorized Users for such Offering, You will be responsible for providing notice to, and obtaining agreement from, any such Authorized Users regarding the application of Agreement with DL T Solutions, LLC
Rev. 07-01 -18
"Customer Information Form" means a form completed by or on behalf of You and submitted to Autodesk (or to a reseller, distributor, or other third party), directly or indirectly, in connection with Your account, a subscription or other Offering.
"Documentation" means the then-current end-user documentation (including online, printed, or other documentation) and any technical or legal requirements for an Offering.
"Governmental Entity" means any nation or government, including the United States federal government, any state, municipality, or other political subdivision thereof, and any entity, body, agency, commission, department, board, bureau, or judicial body pertaining to government, and any employee or official thereof.
"Metrics" means data and other information regarding access to and use of any Offerings (including Your access and use). Metrics includes information regarding usage of features, functions, storage and indexes and information regarding usage, volume, type, storage and processing of Your Content (but not Your Content itself). If Metrics includes any personal data, treatment of such personal data will be pursuant to the Privacy Statement (https://www.autodesk.com/company/legal-notices-trademarks/privacystatement}. "Offerings" means Software, Cloud Services, and Benefits provided by Autodesk, and any subscriptions for such items.
"Offering Identification" means one or more designations by Autodesk that set forth (as applicable) the name of an Offering; the Offering Type; and the permitted number, Territory, and length of Your subscription. The Offering Identification may be (a) provided in a written confirmation or other notice issued to You by Autodesk, posted to Your account, transmitted via email, or otherwise made available to You; (b) located in the Offering or on or with any Autodesk packaging; or (c) obtained from Autodesk on request.
Offering Identification does not include any designation, confirmation, packaging or other document provided by a reseller, distributor, or other third party.
"Offering Type" means the license type specified by Autodesk for a subscription (for example, single-user, multi-user, or Flex). Offering Types are set forth on Offering Types and Benefits
( https: //www .a utodesk. com/company/terms-of- use/en/offering-types-andbenefits}. "Output" means all results, work product, designs, prototypes or other items created or generated by or through any use of any Offering, including any Agreement with DL T Solutions, LLC
Rev. 07-01-18
You will inform Autodesk promptly in writing of such court proceedings, and (ii) You will not serve Autodesk with a third party notice regarding such proceedings unless Autodesk requests in writing that You do so. (c) Nothing in these Terms will exclude or restrict (i) Autodesk's liability for death or personal injury caused by Autodesk's negligence or willful misconduct, (ii) other damages caused to You by Autodesk's fraud, willful misconduct or gross negligence, (iii) if applicable, Autodesk's strict liability for defects of products under applicable statutory law of a Member State of the European Union or the European Economic Area (e.g., the German Product Liability Act), or (iv) any other liability that cannot be excluded or restricted under applicable law.
(d) The following provisions apply if You are contracting with Autodesk Ireland Operations Unlimited Company ("Autodesk Ireland") as a consumer and are a resident of either the United Kingdom or a country that is a Member State of the European Union or the European Economic Area.
These provisions will control in case of a conflict with other provisions of these Terms.
(i) Governing Law and Jurisdiction. If you are a consumer resident of the United Kingdom, these Terms are governed by English law. If you are a consumer resident of a country that is a Member State of the European Union or European Economic Area, these Terms are governed by Irish law. Nothing in these Terms will deprive You of the protections granted to You by the law of the country where you reside that cannot be derogated from by contract pursuant to the law of such country. Autodesk Ireland may bring a claim with respect to an Offering against You only in the courts of the country where You reside, and You have the right to bring a claim with respect to an Offering against Autodesk Ireland either in the courts of Ireland or in the courts of the country where You reside. In any case, You and Autodesk Ireland have the right to bring a counterclaim in the court in which, in accordance with this provision, the original claim is pending.
(ii) Assignment. If Autodesk assigns or otherwise transfers these Terms, Autodesk will notify you of such transfer in advance and ensure that such transfer does not prejudice Your rights under these Terms. You may terminate these Terms (including any subscriptions hereunder) within thirty (30) days of receipt of such notice of transfer, and, if a resident of the United Kingdom, receive a refund for the prorated portion of any prepaid fees applicable to the remaining Offering Term of Your affected subscriptions. If You wish to assign or otherwise transfer these Terms (and your rights and obligations under these Terms) to another entity, You must deliver written notice to Autodesk requesting consent to such transfer. Autodesk's consent Agreement with DL T Solutions, LLC
Rev. 07-01-18
(v) Liability of Autodesk. Notwithstanding Section 14.3 (Limitations on Liability) above and Section 17.12 (Entire Agreement, No Waiver) above, such sections will not exclude Autodesk's liability to You for: (1) misrepresentations in voluntary statements about an Offering made by Autodesk to You that You rely on in purchasing the Offering; (2) failure to provide pre-contract information regarding an Offering that Autodesk is required by the law of the country where You reside to provide to You before purchasing the Offering; (3) if applicable, Autodesk's breach of implied terms that cannot be excluded or restricted under English law (including implied terms relating to satisfactory quality of, fitness for a particular purpose of, conformance to pre-contractual information relating to, or Autodesk's right to supply, digital content); or (4) if applicable, consequential or indirect losses that cannot be excluded or restricted under English law.
(vi) Statutory Warranties. You may have statutory warranty rights under the law applying to You that cannot be excluded or restricted by agreement between You and Autodesk in advance. Such
warranty rights will remain unaffected by these Terms. Autodesk offers or makes no further implied or statutory warranties or conditions regarding the Offerings, and explicitly disclaims all implied warranties and conditions to the maximum extent permitted by applicable law.
(vii) Consumer Right of Withdrawal. Under applicable law, consumer residents of a Member State of the European Union or the European Economic Area have a statutory right to withdraw from their subscription to an Offering within 14 days of its purchase. How this right may apply is explained in Consumer Right of Withdrawal Information
(https://damassets.autodesk.net/content/dam/autodesk/www/comp any/terms-of-use/EU-and-E EA-Consumer-Rig ht. pd:Q. Please note that Your more favorable rights of return for refund that Autodesk voluntarily grants You under Section 3 (Return for Refund) above are not affected by this statutory right of withdrawal.
(e) Contact Us. You may contact Autodesk Ireland by calling +353 1 571 8800, emailing [email protected]
(mailto:[email protected]), or writing to Autodesk Ireland Operations Unlimited Company, 1 Windmill Lane, 2nd Floor, Dublin, Ireland 002 F206.
(f) In addition, notwithstanding any limitations on Territory in these Terms, these Terms do not limit cross-border access or use (such as access or use in one Member State of the European Union of Offerings Agreement with DL T Solutions, LLC
Rev. 07-01-18
(d) Autodesk will not be responsible for user error and may refer any such issues to a supporting reseller, distributor or similar third party, if any.
You may be required to return the Offering to the address we provide to You at the time, at Your own cost.
(e) DESPITE ANYTHING ELSE IN THESE TERMS, IF ANY OFFERING IS
SUBJECT TO THE MANDATORY WARRANTIES OR GUARANTEES
OF THE COMPETITION AND CONSUMER ACT (CTH) OR OTHER
APPLICABLE LAW IN AUSTRALIA (THE "LAW'), AND SUCH LAW
PERMITS AUTODESK TO LIMIT ITS LIABILITY FOR BREACH OF
THESE WARRANTIES OR CONDITIONS, THEN AUTODESK'S
LIABILITY FOR BREACH OF ANY SUCH WARRANTY OR
GUARANTEE WILL BE LIMITED, AT AUTODESK'S OPTION, TO THE
REPAIR, REPLACEMENT OR REPERFORMANCE (OR THE COST
OF DOING SO) OF THE RELEVANT OFFERING.
19.3 Mainland China, Hong Kong, and Macau
If You acquired Your subscription in mainland China, the "Territory" for such subscription is Mainland China. Likewise, if You acquired Your subscription in Hong Kong, the "Territory" for such subscription is Hong Kong; and if You acquired Your subscription in Macau, the "Territory" for such subscription is Macau.
Agreement with DL T Solutions, LLC
Rev. 07-01-18
Service Level Agreement
Titis Service Level Agreement ("Agreement") is made by and between Rand Worldwide, Inc., including its subsidiaries and affiliates (the "Company") and You (the "Customer" or "Licensee"), (both Company and Licensee shall collectively be known as U,e "Parties"). The terms and conditions of this Agreement shall apply to Company's delivery of consulting services and support (the "Services" or "Support") pursuant to the service level purchased by Licensee under the Proposal
Software Support ("Common Support Features"):
o "Company Support Hours" are Monday through Friday, 8 AM to 8 PM EST (excluding United States/ Canada Company observed holidays)
o The following information is required when contacting the Company's Solution Center for technical assistance; Support Contract Number, Company Name, User contact information, Product Name and Version, and a Detailed Description of the Issue o 24x7 access to the Resources pages of the IMAGINiT website including:
o Web-based case submission
o Ability to view, update, and re-open previous support cases o Ability to search and view case history for your entire organization o Ability to submit supporting file(s) to case for review via Dropbox IMAGINiT Basic eSupport
IMAGINiT's Entry level, limited, technical support
o Contact the IMAGINiT Solution Center by either of the following methods:
o Electronic case submission at: https://www.imaginit.com/My-Account/Support-Contracts/Mv-Cases o Email to support at: [email protected]
o Eight (8) Business Hour Response Time, during Company Support Hours. (Titis does not ensure a resolution in said ti.me frame, but that an IMAGINiT Support Technician will be working on the issue in this timeframe.) o Support coverage provided via email and electronic communications for:
o Basic Software Troubleshooting: Assist, troubleshoot, decipher, and solve software related issues such as, installation errors, software error messages, and software functionality issues (crashing). o Coverage includes standard product configuration options and functionality (excludes customer customizations and special configurations)
o Company will assist client with logging product defects with OEM development staff (excludes retired/ non-supported products)
o Coverage EXCLUDES User Performance Support (how-to questions), software customizations, file/ drawing recovery, and special configurations
[MAGINiT PRIORITY SUPPORT:
IMAGINiT' s premier telephone and online support
o Includes all coverages of "IMAGINiT Basic eSupport" PLUS o Access via Toll-Free Telephone (1-888-528-4765) (in addition to online case submission and email) o Four (4) Business Hour Response Time, during Company Support Hours. (This does not ensure a resolution in said time frame, but that an IMAGINiT Support Technician will be working on the issue in this timeframe.) o Basic Software Troubleshooting (see above)
o Limited User Performance Support (how-to questions); Support staff will make reasonable effort (up to 30 minutes) to give user direction to get tarted and will recommend options for accessing learning materials. (Titis is not a replacement for user training, but intended to help a user overcome an urgent knowledge gap and direct them to additional learning options.) o Certain restrictions may apply. Please consult with Company for additional details.
ProduclivityNOW ST AND ARD and Productivity NOW PROFESSIONAL:
Unlimited access to IMAGINiT's Productivity NOW eLearning and productivity platform combined with Priority telephone and online Support. o Includes all coverages of "IMAGINiT Priority Support" PLUS o 24x7 access to ProductivityNOW portal for access to eLeamingcurriculum and other productivity content o eLearning portal provided by Company's designated learning management system provider. Please see Terms of Use for Portal for additional features and limitations)
o Access to priority technical support, during Support Hours, via online "live chat" from within the Productivity NOW portal (in addition to telephone and email access)
DESIGN ASSISTANCE and FLEXTIME SUPPORT Hou.rs (plus Common Support Features):
IMAGINiT' s pre-paid 'hourly' telephone and electronic support o Support activity time deducted in 15 minute increments o Includes Basic Software Troubleshooting
o Four (4) Business Hour Response, during support hours, for Basic Software Troubleshooting o Includes Expanded Installation Assistance and User Performance Support (how-to questions)
Version 1 O - January 2020 Service Level Agreement
26. TERMS AND CONDITIONS
Subject to Licensee's compliance with the Company's "Terms of Use" found within each of Company's websites/portals, Licensee agrees that
6. DEFINITIONS
a. Application - means computer software and/ or software as a service designed to help the Licensee perform specific tasks b. Application Support - means the support/ services provided by Company pursuant to this Agreement c. Authorized Users - means Qualified Users whom the Licensee has designated as callers or points of contact for support d. Basic Software Troubleshooting- Assist, troubleshoot, decipher, and solve software related issues such as, installation errors, software error messages, and software functionality issues (crashes or not functioning per manufacture's documented standards). e. User Performance Support- Assistance/ guidance with "how-to" or other user knowledge/ education type questions f. OEM - Original Equipment Manufacturer
g. Proposal - means the document outlining the terms and conditions of the level of support and applications purchased by Licensee from Company
h. Qualified Users - means Licensee's personnel that have attended the minimum training courses prescribed by OEM or Company for the specific application and moduJes being supported
i. Response Time - means the amount of time, under normal and/ or reasonable circumstances, taken by the Company to respond to a request for Application Support.
j. Release or Upgrade - means the distribution or commercial availability of an OEM Application k. Software - means software downloaded onto hardware and software as a service.
1. Support/Services Exclusions - means those certain exclusions listed on Page 2 of this Agreement m. Updates - means an OEM software update, hotfix or service pack
2. RESPONSE TrME and ESCALATION PROCESS
Company will use reasonable efforts to provide a response to Licensee within the Response Times outlined above per the specific level of service purchased for a properly reported request for Services or Support. Company shall not be held liable for delays in responding to the Licensee's request where such delays are attributable to communication problems beyond Company's control or a Force Majeure event.
From time to time, a request may need to be escalated to the OEM to determine if the request is a software defect, intended functionality, or to be reported as an enhancement request. During the escalation process, Company shall use reasonable efforts to provide Licensee with progress updates; provided, however, in no way shall Company be responsible, or will Company guarantee a suitable resolution to Licensee in a timely manner.
Note: In order to effectively communicate an issue to the OEM, the Company must ensure the following:
a. To be able to consistently reproduce the issue or scenario. b. Provide the current Release number and update or hotfix level of the software application and operating system c. Provide step-by-step instructions in order to reproduce the issue or scenario d. If required, deliver a data sample and/ or sample of an affected file(s) relating to the issue or scenario e. If requested, remote web access to allow OEM personnel to remotely verify customer environment and scenario
3. LICENSEE'S OBLIGATIONS
Licensee represents that prior to requesting any Application Support that all Applications are certified by the Licensee and in accordance with the OEM's recommendations for hardware and operating system.
In order to receive appropriate Application Support, Licensee shall comply with the following requirements:
• Licensee will follow appropriate Application Support protocol as outlined by the Company • Use the appropriate means of communication provided by the Solu lion Center (phone number, email, tools from the Productivity NOW Portal, and/ or account manager).
• Only Authorized Users to engage the Company for support or access the eLearning functions • Licensee to provide the necessary details required for the Solution Center representative to address the issue (i.e., step-by-step instructions, recorded video or data set).
• Obtain the latest and current Update for the relevant Application version • Create a backup or save work before pursuing a solution to the support request • Ensure the Company is notified of any of the following:
o Departure or reallocation of Authorized User(s)
o Arrival of new personnel to be designated as a new Authorized User • Must be a Qualified User and subject to Company's approval Licensee's failure to comply with the above may affect the quality of Services/Support received by the Company.
1. TERMINATION, SUSPENSION, OR MODTFICATION
Company reserves the right, in its sole discretion,, discontinue, or terminate this Agreement, at any time, with prior written notice to Licensee and the terms and conditions in effect on the date that service is either requested or rendered will govern the relationship between the parties. Company may suspend provision of the Service or Support or any part thereof for the purpose of carrying out or implementing necessary repairs, maintenance or
Version 10 - January 2020 Service Level Agreement
HUNDRED SIXTY FIVE (365) DAY PERIOD AFfER THE EFFECTIVE DATE OF THE PROPOSAL AND THIS AGREEMENT.
COMP ANY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS RELATING TO THE
SUPPORT OR SERVICES INCLUDING ACCESS TO THIRD PARTY LINKS SUCH AS VIDEOS OR HYPERLINKS EMBEDDED WITHIN THE SERVICES OR SUPPORT. IN THE EVENT OF NONACCESSABILITY, THE LICENSEE'S SOLE REMEDY WITH
RESPECT TO NON ACCESSIBILITY OF THE SERVICES/SUPPORT OR THIRD PARTY PRODUCTS/SERVICES/SUPPORT ARE
AT THE COMPANY'S SOLE DISCRETION AND ARE LIMITED TO A PRORATED REFUND OF THE PREPAID FEES PAID BY
LICENSEE TO COMP ANY BASED UPON THE TOTAL OUTAGE TIME OF NONACCESSABILITY OF THE SERVICES/SUPPORT OR THIRD PARTY PRODUCTS/SERVICES/SUPPORT. ALL REFUNDS ARE DETERMINED AND EQUAL TO 1/36STH (IF BASED UPON A ONE (1) YEAR PROPOSAL) OR 1/1,09STH (IF BASED UPON A THREE (3) YEAR PROPOSAL) OF THE PREPAID FEES PAID BY LICENSEE TO COMPANY FOR EACH TWELVE (12) CONSECUTIVE HOURS OF NONACCESSABILITY.
NONACCESSABILITY SHALL MEAN LICENSEE IS UNABLE TO ACCESS SUBSTANTIALLY ALL OF THE SERVICES/SUPPORT /THIRD PARTY LINKS WITHIN THOSE TWELVE (12) CONSECUTIVE HOURS. SOME STATES DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO LICENSEE.
9. MJSCELLANEOUS
In the event that any provision in this Agreement is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent permitted by law and the remaining provisions will remain in full force and effect to the maximum extent permitted by law. The failure of a party to enforce any right or provision of Uus Agreement will not be deemed a waiver of such right or provision. Licensee may no t assign this Agreement (by operation of law or otherwise) without the prior written con entof Company and any prohibited assignment will be null and void. Company may assign this Agreement or any rights hereunder without Licensee' consent The relationship of the parties under this Agreement is that of independent contractors, and this Agreement will not be construed to imp! y that e.ither party is the agent, employee, or joint venturer of the other. This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware excluding that body of law pertaining to confl.ict of laws. Any legal action or proceeding arising under this Agreement will be brought exclusively in courts located in Delaware and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. Licensee agrees U1at this Agreement and the rules, restrictions and policies contained herein, and Company's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than Licensee and Company. This Agreement together with the Company's Terms of Use, Company Proposal, and the ruJes and policies of Company constitutes the entire agreement between Company and Licensee with respect to the subject matter hereof.
Version 10 - January 2020 Service Level Agreement
PART B: SERVICES TO BE PERFORMED
1. REVISED WORK AUTHORIZATION
□ No
D If yes, provide a brief description of the change(s).
2. SCOPE OF SERVICES TO BE PERFORMED
The Contractor shall perform the service(s) described below in accordance with all of the terms and conditions of the Agreement. (Insert a detailed Scope of Services below or attach as a separate file.) Scope of Services and cost proposal shall meet all of the provisions of Section 9 of Exhibit A and Section 4 of Exhibit B.
Version 10 - January 2020 Service Level Agreement
Such liquidated damages shall be the City's sole and exclusive remedy for Contractor's failure to meet the agreed delivery schedule.
5. ACCEPTANCE CERTIFICATE
D Acceptance Certificate not required .
D Acceptance Certificate required.
Version 1 0 - January 2020 Service Level Agreement
Page87of87
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-652 Agenda Date: 11/12/2024
REPORT TO CITY COUNCIL
SUBJECT
Action on an Agreement with Hello Housing for Administration Services for the Below Market Price Purchase Program
COUNCIL PILLAR
Promote and Enhance Economic, Housing and Transportation Development
BACKGROUND
The City of Santa Clara has operated a Below-Market Price Purchase (BMP) Program since 1995 to assist low and moderate-income families with achieving the goal of homeownership and to fulfill State mandates to produce housing for all income levels within Santa Clara. The City’s BMP Program is administered by the City’s Housing and Community Services Division in the Community Development Department with certain functions delegated under a service contract to an outside entity. The outside entity acts as the City’s BMP Administrator conducting homebuyer outreach and education, maintaining a website with available units, marketing new BMP opportunities and resales, processing applications, documenting client eligibility, managing wait lists, helping coordinate closings and transactions, ensuring long term compliance, and more. Individuals searching for affordable for sale units which are part of Santa Clara’s BMP Program are directed to the BMP Administrator’s website for opportunities and information on the eligibility process.
In February 2015, the California Department of Housing and Community Development determined that the City’s previous Housing Element complied with state law. That Housing Element included an affordable housing policy that requires "developers of residential developments of 10 or more units to provide at least 10 percent of their units at prices affordable to very low, low, and moderate-income households." Specifically, under this policy, housing developers building for-sale units were required to designate at least 10 percent of the total units in an approved project as BMP units to be sold to qualified buyers.
Through the adoption of the City’s Affordable Housing Ordinance in February 2018, the City’s inclusionary requirement for homeownership projects increased from 10 to 15 percent. The new requirements expanded the production of affordable units through inclusionary requirements for both rental and for-sale residential projects and through the collection of impact fees for smaller projects and nonresidential projects. The Ordinance is intended to provide both a steady stream of inclusionary affordable housing units and revenue to fund the provision of affordable housing projects across the City.
Since 2020, the City of Santa Clara has utilized Housekeys as the BMP Administrator for units which are required by the City to be deed restricted affordable.
City of Santa Clara Page 1 of 4 Printed on 11/8/2024
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24-652 Agenda Date: 11/12/2024
Staff determined a need to issue a new Request for Proposals (RFP) to ensure that the scope of the BMP program aligns with the cost to administer it.
DISCUSSION
Pursuant to City Code Section 2.105.140(c), a formal RFP was conducted with the award recommendation based on “best value.” In April 2024, the RFP for Administration Services for the Below Market Price Purchase Program was published on the City’s e-procurement system. In addition, staff sent emails directly to five companies notifying them of the RFP.
The RFP closed on May 14, 2024, and the City received two proposals from Housing Inc. and Hello Housing. The proposals were evaluated by a three-member evaluation team against the criteria and weights set forth in the RFP. The factors considered in the evaluation were firm experience, capability, and cost. After thorough review of the two proposals, staff determined that the proposal from Hello Housing satisfied all of the requirements set forth in the RFP.
Hello Housing is a 501(c)(3) nonprofit organization with over 12 years of experience in designing and operating affordable homeownership programs in the Bay Area. Hello Housing has served as a below market rate portfolio administrator and as a developer of affordable for-sale homes. As an administrator, Hello Housing has crafted program guidelines, developed educational resources, facilitated outreach and application processes, conducted eligibility assessments, conducted client underwriting, managed program data, engaged stakeholders, and ensured full compliance with program regulations.
Currently, Hello Housing serves as the below market rate program administrator for the cities of Emeryville and South San Francisco and administers the County of Alameda’s down payment assistance program. In the past, Hello Housing has worked with the cities of Novato, Menlo Park, Concord, Cupertino, Livermore, Pleasanton, and the Town of Los Gatos.
Staff is requesting Council authorization to negotiate and execute an agreement with Hello Housing, with an initial term starting on or around December 1, 2024 and ending on June 30, 2027. After the initial term, the City may exercise up to seven one-year options to extend the agreement through June 30, 2034.
The proposed agreement with Hello Housing, Inc. includes program set up, establishing and maintaining an application waitlist of pre-approved prospective buyers, marketing of new BMP units, providing homebuyer education, helping with access to homeowner financial assistance, determining eligibility and pre-qualification of potential homeowners, and coordinating the BMP lottery and sales process.
Pricing for administration and transaction services for the initial term of the agreement are set forth as below.
FY 2024/25
(Prorated)
FY 2025/26 FY 2026/27
Program Set Up $20,000.00 N/A N/A
Program Administration $49,800.00 $103,584.00 $107,727.00 Transactions $67,175.00 $83,255.00 $88,227.00
Total $136,975.00 $186,839.00 $195,954.00
City of Santa Clara Page 2 of 4 Printed on 11/8/2024
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24-652 FY 2024/25 Agenda Date: 11/12/2024 (Prorated)
FY 2025/26 FY 2026/27
Program Set Up $20,000.00 N/A N/A
Program Administration $49,800.00 $103,584.00 $107,727.00 Transactions $67,175.00 $83,255.00 $88,227.00
Total $136,975.00 $186,839.00 $195,954.00
An additional $10,232 has been included bringing the maximum compensation to $530,000. This additional amount is optional and may be used to cover the costs of additional workshops and any other unanticipated services during this period.
After the initial term of the agreement, Hello Housing may request fee adjustments. Any such request must be justified by Hello Housing and is subject to the City’s approval and appropriation of funds.
Increases may not exceed 4% per year.
If the City chooses to extend the agreement through June 30, 2034, the total maximum compensation will increase by $1,609,610 for a new not-to-exceed amount of $2,139,610 for the full term of the agreement, including all optional extensions. This amount reflects the anticipated costs associated with the services, including any potential rate increases.
ENVIRONMENTAL REVIEW
The action being considered not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Section 15378(b)(5) in that it is a governmental organizational or administrative activity that will not result in direct or indirect changes to the environment.
FISCAL IMPACT
The term of the agreement is 31 months beginning on or about December 1, 2024 and ending on or about June 30, 2027. Total cost for the administration services shall not exceed $530,000 over a 31- month period.
Funding for the prorated year one of this agreement is available in the FY 2024/25 Adopted Operating Budget in the City Affordable Housing Fund. Funding for subsequent years is subject to budget appropriations and will be incorporated into the budget development 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
1. Authorize the City Manager or designee to execute an agreement with Hello Housing City of Santa Clara Page 3 of 4 Printed on 11/8/2024
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24-652 Agenda Date: 11/12/2024
(Agreement) for administration services for the Below-Market Purchase Program for an initial term starting on or around December 1, 2024 and ending on June 30, 2027 for a total maximum compensation of $530,000 subject to the appropriation of funds and approval as to form by the City Attorney; and
2. Authorize the City Manager or designee to take any actions as necessary to implement and administer the Agreement and to negotiate and execute amendments to the Agreement to (a) add or delete services consistent with the Agreement’s scope of services; (b) adjust future rates in accordance with the Agreement; (c) extend the term of the Agreement through June 30, 2034; and (d) increase the maximum compensation by $1,609,610 for a new not-to-exceed maximum compensation amount of $2,139,610 for the full term of the agreement, subject to the appropriation of funds and approval as to form by the City Attorney.
Reviewed by: Reena Brilliot, Acting Director, Community Development Department Approved by: Jovan D. Grogan, City Manager
ATTACHMENTS
1. Agreement with Hello Housing
City of Santa Clara Page 4 of 4 Printed on 11/8/2024
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Agreement with Hello Housing Page 1 of 25
Rev. 07-01-18
EBIX Insurance No. *S200005483
AGREEMENT FOR SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
HELLO HOUSING
PREAMBLE
This Agreement is entered into as of the City’s execution date (Effective Date) between the City of Santa Clara, California, a chartered California municipal corporation (City) and Hello Housing, a California nonprofit corporation (Contractor). City and Contractor may be referred to individually as a “Party” or collectively as the “Parties.”
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 Agreement with Hello Housing Page 2 of 25
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of any of the Exhibits and the Terms and Conditions, the Terms and Conditions shall govern and control.
2. TERM OF AGREEMENT
A. 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 the Effective Date and terminate on June 30, 2027.
B. After the Initial Term, the City reserves the right, at its sole discretion, to extend the term of this Agreement for up to seven (7) additional one-year terms (“Option Periods”) through June 30, 2034, if all previous Option Periods were exercised, in such increments as determined by City, subject to the appropriation of funds. City shall provide Contractor with no less than thirty (30) days prior written notice of its intention to exercise its option to extend the term of this Agreement. The Initial Term and Options Periods shall collectively be referred to as the “Term.”
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.
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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 Five Hundred Thirty Thousand Dollars ($530,000), 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 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 covenants 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.
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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 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 Agreement with Hello Housing Page 5 of 25
Rev. 07-01-18
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 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”) and/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.
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 Agreement with Hello Housing Page 6 of 25
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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.
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: Housing & Community Services Division
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected], and [email protected]
And to Contractor addressed as follows:
Hello Housing
Attn: Jennifer Duffy
Physical Address 1970 Broadway, Suite 100, Oakland, CA 94612 Mailing Address: 121 San Anselmo Ave #2440, San Anselmo, CA 94979 Phone: (415)828-4362
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 Agreement with Hello Housing Page 7 of 25
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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.
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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.
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
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”
HELLO HOUSING
a California nonprofit corporation
Dated:
By (Signature):
Name: Jennifer Duffy
Title: President
Principal Place of
Business Address:
121 San Anselmo Ave #2440, San Anselmo,
CA 94970
Email Address: [email protected]
Telephone: (415) 828-4362
Fax: ( )
“CONTRACTOR”
10/29/2024
866 931-0445
Agreement with Hello Housing/Exhibit A-Scope of Services Page 1 Rev. 07-01-18
EXHIBIT A
SCOPE OF SERVICES
1. Objectives
1.1. Contractor will administer the City’s Below Market Purchase Program (BMP) in support of the activities of the Community Development Department’s Housing and Community Services Division.
1.2. BMP Program Administration services includes but is not limited to services to City, prospective applicants, pre-qualified applicants, owners of BMP Program-restricted units, and lenders. City is responsible for refinance transactions and resale transactions to market rate buyers.
1.3. The City desires to reduce the number of days vacant for any BMP unit that is move-in ready. Contractor shall proactively plan their activities with this objective in mind.
1.4. The City desires to have to have at least three (3) preferred lenders available at any time to facilitate the BMP Program homebuying, refinance, or resale processes. Contractor shall provide education and informational classes to prospective lenders, as necessary, to meet City’s objective.
2. General Requirements
2.1. Contractor shall provide program administration services in accordance with federal, state, and local regulations and in conformance with the provisions of the City’s “Below Market Purchase Ownership Program Application Guide,” as amended and adopted by the City of Santa Clara.
2.2. Contractor and its project team assigned to administer the City’s BMP Program must demonstrate successful experience in BMP program administration, possess resources to ensure ongoing knowledge and expertise in this area of specialization remains relevant throughout the term of the contract; and maintain a commitment to continuous improvement in BMP Program administration.
2.3. Within 60 (sixty) calendar days from the contract kickoff meeting, Contractor must complete the initial set-up of the BMP Program, in accordance with Section 3 (Program Set-Up Requirements).
2.4. Contractor must provide reasonable accommodations for applicants upon request. Such accommodations may include one-on-one voice calls, video conferences, and in limited cases in-person meetings.
Agreement with Hello Housing/Exhibit A-Scope of Services Page 2 Rev. 07-01-18
2.5. In coordinating its work, Contractor shall prioritize the processing of households from the BMP Program’s prequalified homebuyer list from the current BMP administrator for the sale of completed, or soon to be completed, BMP Program units.
3. Program Set-Up Requirements
3.1. Contractor shall review the “Below Market Purchase Ownership Program Application Guide,” policies, and procedures to ensure that initial Program set-up is completed in accordance with the City’s requirements. Contractor’s set-up activities must include, but are not limited to, the following:
3.1.1. BMP Program Webpage. Contractor shall create a dedicated BMP Program webpage on its website where the public can find information about the City’s BMP Program, including:
3.1.1.1. Program application or intake form;
3.1.1.2. Supporting manuals, documents, and forms;
3.1.1.3. Below Market Purchase Ownership Program
Application Guide;
3.1.1.4. BMP Program eligibility criteria and qualifications;
3.1.1.5. Information related to BMP units available, or soon to be available;
3.1.1.6. Links to and from the City and Contractor websites; and
3.1.1.7. List of preferred lenders, name of primary contact person, their contact information, and a link to lenders’ website.
3.1.2. Program File Directory. Implement a secure, online file directory that will serve as a temporary repository for BMP Program and applicant information that will be exchanged securely with encryption between City, Contractor and Program applicants. Contractor will agree to fully purge highly sensitive client data within 90 days of close of escrow and once the City has confirmed it has transferred files to the City’s system for long term file retention. Contractor will retain only the files needed for compliance monitoring. If a client does not purchase a specific home but wishes to remain active in the BMP program, the Contractor will purge such sensitive client data from its directory within one year of document submission. The Contractor may enter and retain less sensitive client data into a separate database to facilitate program management, tracking, reporting, program evaluation, and compliance monitoring. Highly sensitive Agreement with Hello Housing/Exhibit A-Scope of Services Page 3 Rev. 07-01-18
documents to be collected include federal and state tax returns, financial account statements, pay stubs, and citizenship and identification documents.
3.1.3. Program Documents. Assist and recommend revisions to existing City Program manuals, forms, and documents. Create new
documents to facilitate Program administration activities, as needed.
3.1.4. Homebuyer Education.
3.1.4.1. Develop a homebuyer information program workshop for Program applicants and publish schedule of live
streamed on-line homebuyer orientation workshops.
3.1.4.1.1. Contractor shall document Program
applicant attendance and provide a
certificate of attendance.
3.1.4.2. Refer applicants to agencies who provide HUDapproved first time homebuyer workshops.
3.1.4.2.1. The workshops must be an eight (8) hour
class given by a certified HUD counseling
agency.
3.1.4.2.2. Contractor shall ensure Program
attendees receive a Certificate of
Completion valid for 2 years.
3.1.5. Change of Administrator. Within 60 days from completion of Program set-up, Contractor shall send a notice to existing BMP homeowners notifying them of a change in BMP Administrator, including contact person name and their contract information, and instructions for submission of annual compliance certifications.
3.2. Contractor and City shall conduct review and testing to ensure the set-up process is complete and that the Program database is secure and operational.
3.3. City shall not pay Contractor any monthly or annual fees for BMP Program Administration until after Program set-up is complete, system has been tested, and is confirmed by City to be operational.
4. BMP Program Administration
4.1. General Administrative Duties. Contractor shall provide administrative support, including but not limited to the following:
Agreement with Hello Housing/Exhibit A-Scope of Services Page 4 Rev. 07-01-18
4.1.1. Scheduling bimonthly (every other month) meetings with City staff to report on Program administration activities.
4.1.2. Tracking and responding to customer service inquiries using a customer relationship management application, or similar platform.
4.1.3. Conducting a periodic review of BMP Program Homeownership Guidelines Handbook; recommending changes, where appropriate; and submitting recommendations to City for approval.
4.2. Marketing. Using online and offline marketing channels, Contractor shall develop a marketing strategy to generate and sustain ongoing interest in the City’s BMP Program, upcoming BMP units, and available BMP units currently for sale. Contractor shall:
4.2.1. Develop and implement a marketing strategy that targets households meeting the City’s occupancy preference categories and/or income guidelines.
4.2.2. Develop project-specific marketing collateral.
4.2.2.1. Collateral must be pre-approved by the City prior to dissemination.
4.2.2.2. With permission from project developer, Contractor may incorporate information from the development’s
website into its marketing collateral.
4.2.2.3. Contractor shall provide copies of marketing flyers to City staff for posting on City’s website and on City’s
social media sites.
4.2.3. Create ongoing e-mail campaign for waitlisted BMP applicants.
4.3. Compliance and Monitoring. Contractor shall implement a compliance monitoring plan for the City’s homeownership portfolio which totals approximately 153 Program-restricted units as of July 2024. The number of units the Contractor will be required to monitor will grow over time.
4.3.1. Compliance activities shall include, but are not limited to:
4.3.1.1. annual occupancy certification;
4.3.1.2. annual insurance verification;
4.3.1.3. utility billing monitoring; and
Agreement with Hello Housing/Exhibit A-Scope of Services Page 5 Rev. 07-01-18
4.3.1.4. other activities, as determined by the City and recommended by Contractor.
4.3.2. On or before July 31st of each year, Contractor shall submit a compliance report to City for the prior fiscal year ending June 30th.
4.4. Annual Survey. Contractor shall conduct an annual survey to assist City with Program evaluation. Contractor shall:
4.4.1. Develop the survey template for the City’s approval;
4.4.2. Issue survey to new BMP homeowners and prior year applicants; and
4.4.3. Tabulate results and submit report to City for review.
4.5. Referral to City for Assessment. In certain cases, Contractor must refer a Program applicant or homeowner to the City before Contractor provides further assistance. Contractor shall refer to City:
4.5.1. Any exception and appeal requests from applicants.
4.5.2. Any current BMP Program homeowner that requests financial assistance or who is experiencing a financial hardship. Contractor may make recommendations to City to assist homeowner.
4.5.3. Existing BMP Program homeowners who intend to sell their BMP Program home during the restriction period. City staff will determine the home’s restricted sales price. Thereafter, Contractor will provide services in accordance with section 5.3.
4.5.4 Refer existing homeowners who intend to refinance their first mortgage to the City for loan review and issuing a subordination agreement, if applicable.
5. Transaction Support.
5.1. Initial Application Processing. Contractor shall establish an intake process for prospective applicants and Program participants. Contractor shall:
5.1.1. Evaluate and process initial pre-applications to determine basic eligibility using stated income, assets, live-work criteria, and other information;
Agreement with Hello Housing/Exhibit A-Scope of Services Page 6 Rev. 07-01-18
5.1.2. Conduct initial applicant eligibility screening of prospective homebuyers. The initial application screening shall be based on client’s stated information and income which will not require clients to submit highly sensitive personal information until the underwriting stage of the process.
5.1.3. Add qualified pre-applicants to the City’s BMP Interest list based on stated information and City’s priority ranking criteria;
5.1.4. Refer interested, prospective BMP Program homebuyers to Citypreferred lenders for loan pre-approval;
5.1.5. Review BMP program guidelines with existing or new preferred lenders. Provide informational classes and education regarding BMP program for prospective lenders, as necessary.
5.2. New BMP Unit Sales.
After Contractor is notified by the City or Developer of the availability of a new BMP unit, Contractor shall:
5.2.1. Notify the BMP Interest list of an open application period for each unit in an AMI (Area Median Income) category;
5.2.2 All BMP Interest List candidates seeking to purse an available unit shall confirm interest by registering for an application lottery;
5.2.3. Randomly assign each registered BMP Interest List applicant a unique identifier;
5.2.4. Conduct selection and rank registered applications pursuant to the City’s Priority Criteria;
5.2.5. Conduct a lottery if more than one applicant in a priority tier meets all of the Program eligibility criteria or when required by Program guidelines. Contractor shall:
5.2.5.1. Administer a fair, random, and transparent lottery process with oversight by City staff;
5.2.5.2. Select a “Designated Buyer” and two “Alternate Buyers;”
5.2.5.3. If Designated Buyer is unable to obtain financing or is unable to purchase the unit, the next highest ranked
Alternate Buyer will be offered the unit. If the first
Alternate is unable to purchase the unit, the second
Agreement with Hello Housing/Exhibit A-Scope of Services Page 7 Rev. 07-01-18
Alternate Buyer will be offered the opportunity to
purchase the unit.
5.2.5. Program underwriting three or more applicants per BMP unit to include collection of supporting documentation for income, verify household members’ assets, etc. Per section 3.1.2, highly sensitive documents will be retained for a limited period of time.
5.2.6. Issue a Notice of Application Denial to ineligible applicants;
5.2.7. Notify selected applicant, applicant’s preferred lender, and project developer of buyer selection;
5.2.8. On behalf of City, collect the Affordable Housing Application and Processing Fees in accordance with the City’s Municipal Fee Schedule. Remit fees to City;
5.2.9. Arrange meeting between selected buyer and Developer’s sales staff to view the BMP unit, or a comparable unit, and execute the Purchase Agreement.
5.2.10. Review lender final loan approval and conditions;
5.2.11. Prepare for City’s review the BMP documents that will be executed by buyer(s) and City Manager. Transmit documents to title company;
5.2.12. Conduct one-on-one meetings with selected buyer(s) to review and explain BMP Program documents they will be signing;
5.2.13. Coordinate escrow closing process with title company, lender, and City staff. City will provide escrow instructions directly to title company with executed BMP documents;
5.2.14. Send City staff intake, application and qualification documents after buyer selection and lender preapproval and again after Buyer is referred to developer, executes purchase contract, addenda and receives loan final approval.
5.2.15 Prepare a summary sheet with buyer’s application and qualification data, lender information, asset summary, monthly housing payment, and property information for review and approval by City staff, after applicant approval (ie. Program Eligibility Summary).
5.3. Resale of BMP Unit.
Contractor shall coordinate the resale process of a price-restricted BMP unit.
Contractor shall:
Agreement with Hello Housing/Exhibit A-Scope of Services Page 8 Rev. 07-01-18
5.3.1. Work with City staff to assess the Program re-sale requirements, review home inspection reports, repairs, and seller disclosures after City has received the owner’s notification of intent to sell home;
5.3.2. Develop unit-specific marketing collateral including photos, videos, unit features, and community amenities list;
5.3.3. Notify BMP Interest List of unit availability, sales price, program eligibility requirements and application dates;
5.3.4. Coordinate with owner for open houses or appointments for qualified applicants to view the home prior to applicant selection process;
5.3.5 Conduct selection and ranking process of qualified applicants to obtain list of priority applicants;
5.3.6. Select designated buyer(s) for unit;
5.3.7. Coordinate execution of a purchase agreement and mandatory disclosures between seller(s) and selected buyer(s);
5.3.8. Open escrow with selected title company and order title documents; and
5.3.9. Prepare the BMP documents for delivery to title company and execution by the buyer(s) and City. City to provide escrow instructions and deliver to title company with executed BMP documents.
6. Additional Services.
When requested by the City in writing, Contractor shall provide additional services.
Additional services are those services closely related to, but not specifically described, above.
7. Data Security Requirements.
7.1 Data Security. Contractor must secure, protect at all times, and implement commercially reasonable measures to prevent unauthorized access to any personal identifying information, financial account information, and other information which City marks "confidential" (collectively; "Confidential Information"), whether in electronic format or hard copy. At a minimum, Contractor must encrypt and password-protect electronic files, store and process Confidential Information only in North America, and adhere to any security applicable standards.
7.2 Records Destruction. When Confidential Information, regardless of its format, is no longer required by Contractor to execute the work required by this Agreement or is no longer required to be maintained by Contractor to comply with any law or regulation, Agreement with Hello Housing/Exhibit A-Scope of Services Page 9 Rev. 07-01-18
the information must be redacted or destroyed through appropriate and secure methods, to ensure the information cannot be viewed, accessed, and reconstructed.
7.3 Major Security Incident Notification. Any major security incident to include interruption of business due to malicious activity or a Data Breach the Contractor shall notify the City in writing within two (2) days of becoming aware of such major security incident. "Data Breach" means: the unauthorized or unlawful access, acquisition, or destruction of Confidential Information.
Agreement with Hello Housing/Exhibit B Schedule of Fees Page 1 Rev. 07-01-18
EXHIBIT B
SCHEDULE OF FEES
Contractor will bill City on a monthly basis for Services provided by Contractor during the preceding month on an invoice and in a format approved by City and subject to verification and approval by City. City will pay Contractor within thirty (30) days of City’s receipt of an approved invoice.
KEY ASSUMPTIONS Year 1 Year 2 Year 3
Number of Full Applications Reviewed 12 15 12
Number of New Sales 4 5 4
Number of BMO Resales (Buyer’s Agent) 0 0 1
Number of BMP Resales Listing (Sellers Agent) 0 0 1
Application Orientation Workshops 2 2 2
PROGRAM SETUP Rates* Year 1 Year 2 Year 3
Digitization of BMP Owner files, build out online file directory $3000 one-time fee $ 3,000 $ - $ - Build program specific webpage, online Pre-application and Purchase Application
$3000 one-time fee $ 3,000 $ - $ -
Revise existing Program manuals, forms and documents to include current administrative practices, logos and contact info $4000 one-time fee $ 4,000 $ - $ - Export City Pre-Qualified Homebuyer List, provide
communication and instruction for re-registration
$2000 one-time fee $ 2,000 $ - $ -
Send out introduction communications to all existing BMP Owners and existing program partners
$2200 one-time fee $ 2,200 $ - $ -
Build out BMP Program Application Workshop Materials $2000 one-time fee $ 2,300 $ - $ - Program Transition meetings with City and exiting Administrator Allowance $ 3,500 $ - $ - TOTAL $ 20,000
Agreement with Hello Housing/Exhibit B Schedule of Fees Page 1 Rev. 07-01-18
EXHIBIT B
SCHEDULE OF FEES
PROGRAM ADMINISTRATION
Review and update, as necessary BMP Program Policies, Guidelines and Procedures included Annual Compliance Monitoring, data collection in CRM data base and Reporting included Maintain and update web page with updated income eligibility tables, programmatic information, and relevant BMP ownership housing information included Manage BMP Homebuyer Interest List, conduct interest list updates including the removal of applicants no longer interested, no longer eligible or not able to contact.
Insert new approved pre-applicants, enter relevant data into CRM Included
Develop various marketing campaigns to support pre-application interest in the BMP Program
included
Identify and onboard preferred lenders and HUD approved homebuying counseling agencies conduct training on the program throughout the year around sales campaigns included
Field and track inquiries from the public, triage response and share actions with the City included Develop and disseminate Program Survey post workshop and post-closing.
Summarize responses and prepare report annually with findings and recommendations based on findings
included
Coordinate with Development Sales Teams to facilitate closing process workflow, communication protocols, marketing collateral and status updates. included
Meet with City staff bi-monthly to review program status, transaction status and inquiries. Produce reports as requested. included
Ongoing training and oversight of the Hello Housing team included
*4% Escalation per year $8,300 per month* $49,800 $103,584 $107,727 Agreement with Hello Housing/Exhibit B Schedule of Fees Page 1 Rev. 07-01-18
EXHIBIT B
SCHEDULE OF FEES
ACTIVITIES Rates* Year1 Year2 Year3
PROGRAM TRANSACTIONAL
Purchase Application Eligibility and underwriting, approvals, dentals, data entry
$ 850* $ 10,200 $ 13,260 $ 11,032.32
Provide Application Workshops in advance of the new BMP units coming online
$ 1,500* $ 3,000 $ 3,120 $ 3,244.80
Marketing and Outreach of new BMP Units for sale. Field inquiries from perspective buyers, disseminate marketing material through City and Hello Housing channels, disseminate marketing material to BMP Interest list and other nontraditional channels.
2.5% per sales price
Pre-Application Eligibility Screening, approvals, denials, and data entry
BMP Sale Coordination of the transaction team, including sales teams, preferred lender, escrow agent, City and prospective buyer through the close of escrow. Manage documentation preparation, reviews and signing.
BMP Resale facilitation - Support and educate sellers on the NIT process. Conducting inspections City on resale calculation (restricted units), working with the city on loan payoff and equity share or interest repayment if (market rate)
Facilitate pre-applicant waitlist ranking and lottery
Year 1 Year 2 Year 3
Sub Total $ 67,175.00 $ 83,255.00 $88,227.12
TOTALS $136,975$ 186,839 $195,954.48
OTHER FEES RATES*
Reimbursable costs: Language Translation Services including ASL interpretation services
Actual cost plus 10%
As-needed workshop Year 1 $1,500
As-needed workshop Year 2 $1,560
As-needed workshop Year 3 $1,622
Agreement with Hello Housing/Exhibit B Schedule of Fees Page 2 Rev. 07-01-18
EXHIBIT B
SCHEDULE OF FEES
HOURLY CONSULTING FEE (FOR ADDITIONAL SERVICES) RATES*
President $225.00
Program Manager $150.00
Program Specialist $150.00
Special Project Manager $135.00
NOTES:
Hello Housing does not pass through reimbursable expenses for cost incurred for basic office functions such as phone lines, postage, photocopying and other office equipment. * Hello Housing does include an annual price escalator, as a cost-of-living adjustment (COLA) of 4%. This cost increase is meant to offset the rising costs of doing business in the Bay Area, including programmatic insurance expenses, staff salaries and benefits.
2.5% Resale Fee is based on a minimum fee assumption of an average of actual sales price per year.
Agreement with Hello Housing/Exhibit C Insurance Requirements Page 1 Rev. 07-01
EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Contractor’s 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 Contractor’s 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 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 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 Agreement with Hello Housing/Exhibit C Insurance Requirements Page 2 Rev. 07-01
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.
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 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 two million dollars ($2,000,000) aggregate. Any coverage containing a deductible or self-retention must first be approved in writing by the City Attorney’s 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 Contractor’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.
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 Agreement with Hello Housing/Exhibit C Insurance Requirements Page 3 Rev. 07-01
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 Contractor’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 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.
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 Agreement with Hello Housing/Exhibit C Insurance Requirements Page 4 Rev. 07-01
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 City’s 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 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, 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 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 Community Development
P.O. Box 100085 – S2 or 1 Ebix Way
Duluth, GA 30096 John’s 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.
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-796 Agenda Date: 11/12/2024
REPORT TO COUNCIL
SUBJECT
Action to Authorize the City Manager to Execute Agreements with Tasman East Station Holdco, LLC for the Construction of Park Improvements and the Maintenance of the Parks located at 5123 Calle de Sol within the Tasman East Specific Plan Area at the Developer’s Sole Cost
COUNCIL PILLAR
Enhance Community Sports, Recreational and Arts Assets
Enhance Community Engagement and Transparency
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
In July 2014, the City Council adopted Ordinance No.1937, adding Chapter 17.35 “Park and Recreational Land” to the Santa Clara City Code (SCCC). The purpose of City Code Chapter 17.35 is to help mitigate the impacts of new housing development growth on existing parkland and recreational facilities pursuant to the provisions of the State of California Quimby Act (Quimby) and/or the California Mitigation Fee Act (MFA). New residential developments are required to dedicate developed park and recreational land and/or pay a fee in-lieu of parkland dedication.
On November 13, 2018, the City Council adopted the Tasman East Specific Plan (TESP) (Attachment 1), providing detailed land use and development guidelines for future projects proposed inside the 45-acre specific plan area boundaries.
On July 17, 2019, the Architectural Review Committee approved a development application located within the TESP area at 5123 Calle del Sol to construct:
(1) Three hundred eleven (311) apartment units, private recreational amenity space, public retail space, and parking on 1.87 acres (the “Parcel 19 Project”) (2) One hundred and ninety-two (192) apartment units, private recreational amenity space, public retail space; and
(3) Parking on 0.75 acres (the “Parcel 29 Project”) (both parcels collectively, “Project”) The Project site is within the Station District of the TESP, and is bounded by Calle de Luna to the north, Calle del Sol to the west, and Tasman Drive to the south.
The Project will meet its parkland dedication requirements of 2.8506 acres as follows:
1. For the Parcel 19 Project:
a. Construction of a 0.109-acre mini park and fee title dedication to the City; b. Provision of 0.6422 acres of private recreational amenities; and City of Santa Clara Page 1 of 4 Printed on 11/8/2024
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24-796 Agenda Date: 11/12/2024
c. Payment of a $5,591,446 in-lieu fee in conformance with City Code Chapter 17.35 (already paid in April of 2022).
2. For the Parcel 29 Project:
a. Construction of a 950 sq. ft. mini park plaza and dedication in fee title to the City; b. Provision of 0.2836 acres of private recreational amenities; and c. Payment of a $3,825,837 in-lieu fee in conformance with City Code Chapter 17.35 by on or before April of 2030 or upon issuance of the first building permit for Parcel 29.
This item requests Council consideration and approval of the park construction and maintenance contracts necessary to implement certain aspects of the Project’s overall park requirements.
DISCUSSION
In conformance with the City Code and TESP, the City and Tasman East Station Holdco, LLC (Developer) negotiated the following:
1. Parkland Agreement (Attachment 2): This agreement sets the terms and conditions for the construction of the park and private recreational amenity improvements, acceptance of the parks according to the Architectural Review Committee approved schematic design, and dedication of the park to the City. Key provisions of the Parkland Agreement include:
a. Construction of park improvements in the amount of $399,921 for the mini park with the Parcel 19 Project and park improvements in the amount of $79,984 for the mini park plaza with the Parcel 29 Project;
b. Construction of private recreational amenity improvements for which credit will be provided in the amount of $1,178,116 with the Parcel 19 Project and in the amount of $520,355 with the Parcel 29 Project;
c. Confirmation that if Developer has not pulled building permits for the Parcel 29 Project within eight (8) years of the building permit issuance for the Parcel 19 Project (April 18, 2022), Developer shall pay $1,178,116 to the City, which is the value of the Parcel 19 Project private recreational amenity improvements credit; d. Council-approved mini park and mini park plaza schematic designs; and e. Obligation to transfer fee title for both the mini park and the mini park plaza to the City.
2. Park Maintenance Agreement (Attachment 3): This agreement sets the terms and conditions for the maintenance of the dedicated public parks. Key provisions of the Park Maintenance Agreement include:
a. Responsibility of Developer to provide the labor, supervision, equipment, and materials necessary to maintain the mini park and the mini park plaza in accordance with City standards as defined in the Agreement;
b. Obligation for the maintenance services, including utilities, to continue for the life of the park, by Developer. The maintenance period is defined as the period commencing the date of the City’s acceptance of dedicated parklands and continuing in perpetuity; and c. Option for the City to conduct periodic performance reviews upon City’s request.
Both parties acknowledge that for the duration of the Park Maintenance Agreement, the parklands will remain public parks operated, controlled, and managed solely by the City, with hours of operation City of Santa Clara Page 2 of 4 Printed on 11/8/2024
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24-796 Agenda Date: 11/12/2024
set by the City.
ENVIRONMENTAL REVIEW
The Environmental Impact Report (EIR) for the TESP which included the construction of parks was approved on November 13, 2018 (Resolution No. 18-8623), pursuant to the California Environmental Quality Act (CEQA) (Public Resources Code Section 21000 et seq.).
The action being considered does not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(5) in that it is a governmental organizational or administrative activity that will not result in direct or indirect changes in the environment.
FISCAL IMPACT
There is no General Fund fiscal impact other than staff time that is budgeted in the Parks and Recreation Operating Budget for minor administrative tasks related to the operation of the Mini Park as part of the City’s overall park system. In conformance with the TESP and the terms of the proposed Parkland Agreement and Park Maintenance Agreement, Tasman East Station Holdco, LLC (Developer) will design, construct, dedicate to the City, and maintain the Mini Park and Mini Park Plaza, at its sole expense for the life of the park, expiring upon mutual written consent of all parties.
In addition, the City will receive Mitigation Fee Act (MFA) funds from the Developer in the amount of $5,591,446 for the Parcel 19 Project and will receive $3,825,837 for the Parcel 29 Project, which will be allocated to the Parks and Recreation Capital Fund once submitted.
COORDINATION
This report has been coordinated with the City Attorney’s Office, the Community Development Department, the Finance Department, and the 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
Authorize the City Manager to execute the Parkland Agreement and the Park Maintenance Agreement with Tasman East Station Holdco, LLC on substantially the terms and in the forms presented, with such minor, non-substantive changes and amendments that may be necessary to implement the project, in final forms approved by the City Attorney.
Prepared by: Gina Saporito, Staff Analyst
Reviewed by: Cynthia Bojorquez, Assistant City Manager and Acting Director of the Parks & Recreation Department
Approved by: Jovan D. Grogan, City Manager
ATTACHMENTS
1. Tasman East Specific Plan Excerpts
City of Santa Clara Page 3 of 4 Printed on 11/8/2024
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24-796 Agenda Date: 11/12/2024
2. Parkland Agreement with Tasman East Station Holdco, LLC
3. Park Maintenance Agreement with Tasman East Station Holdco, LLC City of Santa Clara Page 4 of 4 Printed on 11/8/2024
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02/22/19 Tasman East Focus Area Plan 31
Transit Neighborhood
Required Ground Floor
Retail
Dedicated Open Space
(acres)*
Greenway
To Be Implemented as
Development Occurs
City Easement
Site Boundary
* Dedicated Open Space areas will
be implemented through the City’s
Parkland Dedication Ordinance
and the terms of the Specific Plan.
* Greenway and Park locations
depicted are conceptual.
Figure 03-5-3 Land Use Framework
1.0 2.5
0.5 0.15
0.85 Calle Del Mundo
Calle Del Sol
Avenue C
Avenue D
Guadalupe River T
Lafayette Street
2nd Street
Calle De Luna
Tasman Drive
Lick Mill Station
City Place
Guadalupe River
Ulistac
Natural Area
Great America Station
Lick
Mill Boulevard
N
0 100’ 250’ 500’
Attachment 1- Excerpts from Tasman
East Specific Plan pertaining to Parks
-
-
-
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11 II \=--=~-=---==------------......_
1111' I
~;===.=======-'■
\
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I
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'-'--------
,
,
111111111111111111.I
------
34 Tasman East Focus Area Plan 02/22/19
03.7 OPEN SPACE FRAMEWORK
DETERMINED NEED
For residential developments, Open Space requirements
are regulated by Chapter 17.35 of the City’s Municipal
Code. Per City Council direction, the Tasman East Focus Area (TEFA) is required to provide at least 10 acres of open space made up of both dedicated park and privatelyowned open spaces.
DEDICATED PARKLAND
A minimum of 5 acres of dedicated parkland is required
throughout the Tasman East Focus Area districts, see
Figure 03-7-1 for location of districts.
Each district is required to provide dedicated parkland of a given acreage and adjacency. The exact dimensions
and programming are flexible to allow for the design to evolve along with the needs of the community, see Figure 03-7-3.
The five dedicated parkland districts are: Hill District (0.85 acres), River District (2.5 acres), Station District (0.15-acre urban plaza), Bridge District (0.5 acre), and Center District (1 acre). For an overview of the character, connections, and programming for each district, see
Chapter 5: Open Space Design Guidelines.
Dedicated parkland and greenways as required by the
TEFA shall receive park land dedication credits for the Santa Clara Parks Ordinance 17.35 SCCC if consistent
with the size and general location of parks identified in Figure 3.7.3 and Chapter 5 of the TEFA.
All development will be responsible for satisfying the
parkland amount specified in Chapter 17.35 of SCCC by
land dedication and/or in-lieu fees. Properties that do not have parkland identified on their sites on Figure 3.7.3 of the TEFA shall make their contribution through in-lieu fees or can choose to propose parkland dedication that
has not yet been identified. The City will retain discretion to provide Parks Ordinance credit for proposed parkland not identified in the TEFA. The “Parkland Dedication
Ordinance and TEFA Additions” section of Chapter 5
specifies the criteria for private recreation credit.
PRIVATELY-OWNED OPEN SPACE
Beyond the minimum 5 acres of dedicated parkland, the
balance of the 10 acres of required open space may be
achieved with any of the three following types of space:
greenways, privately-owned publicly-accessible parks, and Privately-owned Open Space, see Figure 03-7-2.
GREENWAYS
Greenways are privately owned publicly-accessible open
space connectors that will link dedicated parkland and
streets into a continuous green network throughout
the site. Greenways will be car-free, providing safe and pleasant paths for people on foot, bikes and scooters.
If landscaped appropriately, greenways will create open space opportunities for lingering and gathering as an
addition to the dedicated parkland and privately-owned
open spaces. They also provide an opportunity to improve the local environment by reducing air pollution, the heatisland effect, noise, and improving pedestrian safety.
Greenways will be created through minimum 15-foot
easements on either side of property lines for a total
minimum right-of-way width of 30 feet. The general
alignment of greenways are shown in Figure 03-5-
3 (equivalent to roughly 1 acre of open space). This
alignment may be refined, but generally greenways should be toward the middle of a block and create meaningful
connections between open spaces. The greenway network
should align across streets so that they can be connected via mid-block crosswalks. Greenways are to be maintained at a standard equal to or higher than City parks.
Greenways count towards the total 10-acre open space
requirement. Also see Section 05.6 for design guidelines.
PRIVATELY-OWNED PUBLICLY ACCESSIBLE OPEN SPACE
In the case of privately-owned, publicly accessible open space, each portion of at-grade publicly-accessible land may count toward the TEFA open space requirement, as
long as it meets the following criteria:
• To the maximum extent feasible, privately owned
publicly-accessible land shall be contiguous with the
fixed open space network;
• For parcels one acre or greater in size, the minimum
area of a single open space is 2,000 square feet with
a minimum dimension of 40 feet. For parcels less
than an acre in area, the minimum size for open space
is 5% of the net parcel size, after any other required
dedications, with a minimum dimension of 30 feet;
• A minimum 25% of the perimeter of the open space
must abut a sidewalk, greenway, open space or
publicly-accessible pathway;
• The open space shall include signage that is located
in a publicly conspicuous place stating that the open
space is available for public use and the hours of use; • Fences or other barriers that create the appearance of privatization of open space are discouraged. If fencing is used, it shall be designed to maximize visibility.
02/22/19 Tasman East Focus Area Plan 35
Figure 03-7-1 Districts
Calle Del Mundo
Calle Del Sol
Avenue C
Avenue D
Guadalupe River Trail
Lafayette Street
2nd Street
Calle De Luna
Tasman Drive
Lick Mill Station
City Place
Guadalupe River
Ulistac
Natural Area
Great America Station
Lick
Mill Boulevard
N
0 100’ 250’ 500’
To Be Implemented as
Development Occurs
City Easement
Site Boundary
BRIDGE DISTRICT STATION DISTRICT
CENTER DISTRICT RIVER DISTRICT
HILL DISTRICT
ti ~
I
I L __ -.. ...__ -- • 1111 I I
36 Tasman East Focus Area Plan 02/22/19
Figure 03-7-2 Privately-Owned Open Space Requirement as a Percentage of Development Area.
ACRES
Total Open Space
Requirement
10.0 Dedicated Parkland 5.0
Greenways 1.1
Remaining Privately-Owned
Open Space
3.9 Need from Each Development
(as a percent of 31.35 acres of
developable area)
12.5% (or
3.9 acres)
• To ensure visibility and safety, all points along
the perimeter of an open space must maintain an
unobstructed line of sight to at least one street or
greenway frontage;
• The open space shall be generally flat; sloped areas
programmed with active uses can be considered for
credit.
Privately-owned publicly accessible open space located on a podium must meet all of the above criteria as well as:
• Provide adequate soil volume to support planting; and • Ensure privacy for podium level units; and.
• Clear and visible signage indicating that the space is open for public use.
PRIVATE OPEN SPACE
In the case of PRIVATE OPEN SPACE, up to 50 percent
of the area of each open space is eligible for credit toward the TEFA open space requirement. In addition, balconies or stoops that are a minimum of 36 square feet in area
and have a minimum dimension of 5 feet in any direction shall be allowed 25% of area credit toward the TEFA open space requirement.
Parkland Dedication Ordinance and TEFA Additions
Privately-Owned Publicly Accessible Open Space and
PRIVATE OPEN SPACE as defined in the Specific Plan
shall receive Park and Recreational Land PRIVATE OPEN
SPACE credits when the combined area of over 0.75 acres meets 4 of the 8 required elements of the Park Ordinance defined in Municipal Code Section 17.35.070 plus two
new as noted below.
The eight required elements of the Park Ordinance
defined in Municipal Code Section 17.35.070 are listed
below for reference:
• Turfed play field, comprised of a single unit of land which is generally level and free of physical barriers
which would inhibit group play activities with a
minimum contiguous area of one-half acre;
• Children’s play apparatus area that conforms to
the then current Federal Consumer Product Safety
Commission guidelines;
• Landscaped and furnished, park-like quiet area;
• Recreational community gardens;
• Family picnic area;
• Game, fitness or sport court area;
• Accessible swimming pool (minimum size forty-two
(42) feet by seventy-five (75) feet) with adjacent deck or lawn areas;
• Recreation center buildings and grounds;
Two additional recreational elements are noted in the
Tasman East Focus Area Plan:
• Dog park with a minimum size of 3,000 square feet,
and a minimum dimension of 30 feet; and
• Game area, a minimum of 2,000 square feet in area
with a minimum dimension of 30 feet. This minimum
area can be reduced to 1,000 square feet if next to
another open space.
The City has the discretion to also allow Park Ordinance credit for costs associated with off-site improvements
in areas which are functionally contiguous to dedicated parkland (or an easement with public access).
02/22/19 Tasman East Focus Area Plan 37
BRIDGE DISTRICT STATION DISTRICT
CENTER DISTRICT
RIVER DISTRICT
HILL DISTRICT
Figure 03-7-3 Open Space Framework
1.0 2.5
0.5 0.15
0.85 Public improvements beyond the site
not included in 10.0 acres
PRIVATELY-OWNED OPEN
SPACE
TOTAL 10 ACRES
• Hill District 0.85 acre
• Center District 1.0 acre
• River District 2.5 acres
(Including 0.75 acre easement)
• Bridge District 0.5 acre
• Station District 0.15 acre
DEDICATED PARKLAND
(MINIMUM 5 ACRES)
+
=
• Greenways
• At Grade & Publicly
Accessible (100% Credit )
• PRIVATE OPEN SPACE
(50% Credit )
Public Improvement Beyond
the Site
To Be Implemented as
Development Occurs
City Easement
Site Boundary
* Greenway and Park locations
depicted are conceptual.
Calle Del Mundo
Calle Del Sol
Avenue C
Avenue D
Guadalupe River Trail
Lafayette Street
2nd Street
Calle De Luna
Tasman Drive
Lick Mill Station
City Place
Guadalupe River
Ulistac
Natural Area
Great America Station
Lick
Mill Boulevard
N
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38 Tasman East Focus Area Plan 02/22/19
03.8 URBAN DESIGN FRAMEWORK
The urban design framework builds on the land use,
circulation and open space frameworks to create a sense of place for the Tasman East Focus Area. An identity
for the neighborhood will take shape through the urban
design devices of gateways, edges, connections, and
landmark buildings. These elements are illustrated in
Figure 03-8-1.
GATEWAYS
The Focus Area will feature two gateway locations at
the edge of the site that offer first impressions upon
approach. Gateways mark important destinations, such as transit stations and points of connection within the site and to adjacent development. Gateways will feature high quality architecture, public realm enhancements (such as plazas and parks), or a combination of both.
The gateway locations include: 1) a connection to the Lick Mill Station at Calle Del Sol; and 2) a connection to the Great America Station at Calle de Luna and a potential
third gateway connection to City Place at 2nd Street.
EDGES
The site is surrounded on the north and east sides by
challenging grade changes ranging from roughly 15 feet
to 30 feet in height. Additionally, at the two southern corners of the site, Tasman Drive bridges over the rail tracks and the Guadalupe River (from west to east),
causing steep slope differences on the site.
Periphery developments along the eastern edge of the
site should gracefully mitigate grade changes to offer
pedestrians continuous access to the Guadalupe River
Trail. The northern edge of the site should be designed to facilitate a pedestrian connection to 2nd Street, as this will be an important pedestrian route to City Place.
Strategies for mitigating grade changes include fill and/or publicly accessible, activated vertical connections such as stairs, ramps or landscaped slopes.
Any action to mitigate the grade changes will happen
beyond the site boundaries and will require landscape
design and civil engineering coordination with adjacent property owners.
CONNECTIONS
A complete and connected network of streets will
provide a safe and enjoyable pedestrian experience that encourages walking and biking. A finer grained network of greenways will provide secondary, pedestrian and bicycleonly connections that link people easily to the parks in the neighborhood as well as regional open spaces, including the Guadalupe River Trail.
In order to truly connect this network, vertical connections are required to be made between specific parks in Tasman East to roads or trails outside of the plan boundary.
Ramps and stairs for pedestrian and bicycle connectivity are required at open spaces in the River District, located along grade changes. See Section 5.2 and 5.3 for Open
Space Design Guidelines.
LANDMARK BUILDINGS
Towers should mark the location of key site features
such as sites nearby the VTA and Amtrak/ACE stations
and neighborhood parks. By locating towers near transit stations and neighborhood parks, these places are
identifiable from a distance and also give the towers a sense of prominence, proximity and space appropriate to their larger scale.
Towers should also be located to take advantage of the
site’s sweeping views. Santa Clara is characterized by flat lands with meandering rivers and creeks – allowing for
distant views of the hills to the East and West, of the Bay to the north, and of landmark buildings such as Levi’s
Stadium, the towers of Downtown San Jose and views up
and down the Guadalupe River.
02/22/19 Tasman East Focus Area Plan 39
Open Space Framerwok
Vertical connection / site bndy /
bridges / phased/ D opne space
framework/ OPen space / Xwalks /
existing Row base / Site white base /
trail / channel/ base
Gateway
Grade Change Beyond Site
Filled and Landscaped
Grade Change
Required Ground Floor
Retail
Dedicated Open Space*
Greenway
Vertical Circulation
To Be Implemented as
Development Occurs
City Easement
Site Boundary
* Greenway and Park locations
depicted are conceptual.
Figure 03-8-1 Urban Design Framework
Calle Del Mundo
Calle Del Sol
Avenue C
Avenue D
Guadalupe River Trail
Lafayette Street
2nd Street
Calle De Luna
Tasman Drive
Lick Mill Station
City Place
Guadalupe River
Ulistac
Natural Area
Great America Station
Lick
Mill Boulevard
N
0 100’ 250’ 500’
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46 Tasman East Focus Area Plan 02/22/19
Open Space Framerwok
Vertical connection / site bndy /
bridges / phased/ D opne space
framework/ OPen space / Xwalks /
existing Row base / Site white base /
trail / channel/ base
Existing Sidewalk
Proposed Sidewalk within
Site Boundary
Proposed Sidewalk beyond
Site Boundary
Proposed Dedicated Bike
Lanes
Greenway
Guadalupe River Trail
To Be Implemented as
Development Occurs
City Easement
Site Boundary
Figure 04-1-2 Pedestrian and Bike Network Connectivity
Lick Mill Boulevard
04-1-3
04-1-4
Avenue C
Avenue D
Guadalupe River Trail
Lafayette Street
2nd Street
Tasman Drive
Lick Mill Station
City Place
Guadalupe River
Ulistac
Natural Area
Great America Station
N
0 100’ 250’ 500’
Calle Del Mundo
Calle Del Sol
Calle De Luna
* Greenway locations depicted are
conceptual.
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05.1 Dedicated Parkland Locations
& Program 68
05.2 River District 70
05.3 Hill District 71
05.4 Bridge & Center Districts 72
05.5 Station District 73
05.6 Greenways 74
05OPEN SPACE DESIGN
GUIDELINES
68 Tasman East Focus Area Plan 02/22/19
05.1 DEDICATED PARKLAND LOCATIONS & PROGRAM
Intent
The Tasman East open space system will be a network of
diverse neighborhood parks that offer a unique destination and enhance the overall site environment. Open Spaces
will be connected by greenways and pedestrian priority
streets that complement and connect with the larger
North Santa Clara open space network, including the
Guadalupe River Trail and the parks and paths provided at City Place.
Standards
(A) Open spaces shall be sized and located in districts according to Section 3.7 Open Space Framework.
Parkland shall be dedicated and constructed in a
proportional amount to a given project’s district
requirement prior to issuance of a certificate of
occupancy, or temporary certificate of occupancy.
Developer shall have the option of posting a bond
or providing other security to the satisfaction of
the Director of Community Development if the
construction of the new open space is not completed
prior to temporary certificate of occupancy.
(B) Parks and open spaces shall be designed to connect
with the network of greenways and streets that carry
pedestrians through the neighborhood. See also
Section 05.06 for guidance on greenway design.
(C) Grey arrow on Figure 05-1-1 indicates location
where open space is encouraged to be designed
to create vertical connection that navigates grade
changes between River District and the adjacent
Guadalupe River Trail. The character of this
connection is further outlined in the following
section 05.2.
(D) Open spaces shall be generally flat; sloped areas
programmed with active uses can be considered for
credit.
(E) Pioneer trails; Native plantings proposed for
development in the Plan Area shall consider the
SCVWD’s Guidelines and Standards for Land Use
Near Streams. Local native plantings, to the extent
they are available, shall be used. Development and
landscaping of the area along the levee should also
consider opportunities such as site layout, fencing,
landscaping, and education to discourage the public
from creating pioneer trails up the levee slope to
access the existing trail. A 15-foot zone free of tree
plantings shall be provided from the levee toe to
allow for emergency access.
Guidelines
(F) The open space network should provide a
comprehensive array of passive and active
recreational opportunities. Each open space should
have a unique identity that reinforces a diversity of
activities within the overall open space system.
(G) Potential program elements which may be used
to create a unique park identity may include, but
are not limited to: dog park, exercise area, sport
courts, games (i.e. bocce, etc), large natural area,
playground, community garden or amphitheater.
(H) Sports courts, where they occur, should be designed to official sizes with required setbacks and safety
fencing. Elements that require fencing should be
sited in a way that does not negatively impact park
connectivity or visibility.
(I) In addition to a signature program element, all open spaces should accommodate passive uses such as
reading, picnicking and gathering.
(J) When siting park elements, consider types of
activity, periods of use or vacancy, availability of sun or shade and the differing needs of a diverse range
of visitors such as small children, adult athletes,
skateboarders, dog owners, etc. Design program
components to accommodate flexible uses.
(K) Park program should relate to adjacent land use,
interior building program and building siting.
Considerations for sun/shade, indoor/outdoor, public/
private should all be incorporated into the design of
open space and siting of buildings.
02/22/19 Tasman East Focus Area Plan 69
Figure 05-1-1 Open Space Locations
Dedicated Open Space
Greenway
Vertical Circulation
To Be Implemented as
Development Occurs
City Easement
Site Boundary
* Greenway and Park locations
depicted are conceptual.
BRIDGE DISTRICT STATION DISTRICT
CENTER DISTRICT
RIVER DISTRICT
HILL DISTRICT
Calle Del Mundo
Calle Del Sol
Avenue C
Avenue D
Guadalupe River Trail
Lafayette Street
2nd Street
Calle De Luna
Tasman Drive Lick Mill Station
City Place
Guadalupe River
Ulistac
Natural Area
Great America Station
Lick
Mill Boulevard
N
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70 Tasman East Focus Area Plan 02/22/19
Terraces direct views and provide an informal gathering space Passive trails along the riverfront Slides are one way to use grade changes to provide signature play opportunities
Intent
The park in the River District will be the most expansive and natural neighborhood park in the Tasman East
neighborhood.
Standards
(A) The park shall maintain public access along
the riverfront and be designed to embrace the
Guadalupe River as a central feature.
(B) Sloped walks, terraces, stairs and/or ramps for
bicycle and pedestrian circulation shall be a key
feature to connect across the grade change between
the eastern edge of the site and the Guadalupe River
Trail. This will ensure that pedestrians and bicyclists from the Guadalupe River Trail can access the Great
America Station at the western end of Calle De
Luna.
(C) The park may also provide a public outdoor
amphitheater that can be used to host concerts,
movies, and other public events.
Guidelines
(D) The River district park should be designed to
complement the adjacent Guadalupe River and
Ulistac Natural Area.
(E) The park should have larger contiguous soil volumes to support long-lived canopy trees and diverse
habitat.
(F) Plant selections should reinforce the native
and surrounding ecology and promote habitat
development.
(G) Ramps and stairs should be aesthetically pleasing as well as functional. In bridging the grade change, the
elevated open space should open views back across
the Tasman East neighborhood, up and down the
river, and toward Levi’s stadium. More distant views
to Downtown San Jose and the Diablo Mountain
Range should be considered.
05.2 RIVER DISTRICT
Credit: Hargreaves Associates Credit: Perkins + Will
Credit: yuggler.com
02/22/19 Tasman East Focus Area Plan 71
Permanent game tables create a social gathering space
Seating and landscape enhances and diversifies the functionality vertical circulation A variety of soft and hard scape creates a varied and
interesting experience
05.3 HILL DISTRICT
Intent
The Hill District park could potentially connect the site and City Place’s proposed Second Street. Second Street
connects northward and serves as an important bridge
connection across Lafayette Street.
Guidelines
(A) Ramps and stairs should be aesthetically pleasing as well as functional.
(B) Terraces along the grade change should be designed
to serve as meeting points and visual landmarks. In
bridging the grade change, the elevated open space
should open views to Levi’s Stadium, the Guadalupe
River and beyond.
(C) This park should include amenities to support the
retail environment on Calle Del Sol such as flexible
seating areas, social gathering spaces, play spaces
and public art.
(D) Surrounded by development on two sides, this
park should be designed to be protected from
wind and down-drafts from buildings with strategic
tree planting and thoughtful siting of passive
programming.
Credit: Drew Kelly
Credit: ASPECT Studios Credit: MVVA Inc.
72 Tasman East Focus Area Plan 02/22/19
Flexible seating areas create a signature amenity
The flexibility of a large lawn can allow for informal recreation like group exercise classes
Play areas are one of many program uses in this park.
The lawn can host community events like
movie screening
Intent
At the heart of the site, the parks in the Bridge and
Center Districts will be a signature social element of the open space network. These parks are the ideal location for intimate neighborhood-serving amenities, because they
are remote from busy Lafayette Street and Tasman Drive, but are still a short walk from the retail at Calle Del Sol.
Guidelines
(A) These parks can include a variety of landscaping
treatments, and should feature urban plazas,
tree-lined promenades, tot-lots, pocket gardens with
seating areas and lawns.
(B) Hardscape plazas and lawns should provide flexible
spaces to accommodate a range of activities for the
community, such as movies, picnics and community
events.
(C) The crossing at Calle de Luna should be designed
to prioritize pedestrian safety and visibility using a
raised tabletop intersection and warning lights.
(D) Surrounded by development on two or three sides,
these parks should be designed to be protected from
wind and down-drafts from buildings with strategic
tree planting and thoughtful siting of passive
programming.
05.4 BRIDGE & CENTER DISTRICTS
Credit: dillondiersphotography
Credit: Sylvia Martin
Credit: Carve, Amsterdam- project Osdorp Oever
Credit: brandurbanagency.com
02/22/19 Tasman East Focus Area Plan 73
Inviting play areas will attract families from
the neighboring communities
Public art can be experiential
Plazas should be nodes of activity within the block Urban plazas can host community events Intent
The location and configuration of the open space in the Station District should be designed as an urban plaza to complement the gateway experience from the Lick Mill
VTA Station and highlight this area as a center of activity for neighborhood residents, workers and visitors, see
Figure 03-8-1.
Guidelines
(A) Station District Park should be one large plaza
or form a network of plazas that offer an urban
social space for the neighborhood and enhance
connections between transit, greenways, open space
and the retail experience of Calle del Sol.
(B) Outdoor dining areas - either associated with
restaurants or open seating - should support the
connection to retail at Calle del Sol.
(C) Plazas in this area should feature public art and
other elements that enhance social interaction.
(D) Plazas should be designed to maximize sunlight
during the active hours of the day as well as
visibility and public access.
05.5 STATION DISTRICT
Credit: Rehwaldt Landschaftsarchitekten
Credit: Jim Campbell, Scattered Light, Northern Spark 2011 Credit: Perkins + Will Credit: Perkins + Will
Presented by Northern Lights.mn & Minnesota Museum of American Art 74 Tasman East Focus Area Plan 02/22/19
INTENT
Greenways are public throughways that provide a fine
grain of connections to subdivide large blocks. They will take advantage of code-required fire separation between buildings to create a variety of walking connections that provide a human-scaled pedestrian experience. Public
access easements will be required for greenways to ensure that they remain public at all times.
There is potential for sections of the same greenway to be constructed by separate entities, therefore the standards and guidelines below ensure that greenways will be
designed cohesively.
GUIDELINES
(A) Greenways should provide two distinct paths: a
minimum 12 foot wide, paved or raised boardwalk,
shared use path for pedestrians, cyclists, strollers,
etc and a 6 foot wide dirt/decomposed granite path
for walking and jogging. These paths can either be
side by side or separated by planted areas to count
towards the 10-acre open space requirement.
(B) Greenways may provide a minimum 20 foot wide
access for emergency vehicles. This area can be
partially planted as long as the planting can be
driven over in case of emergency (i.e. grasses but
not trees).
(C) Up to 50% of the surface area of a greenway may
be used for stormwater management. The remainder
of the surface area shall be used to create urban,
public spaces that provide opportunities for social
gathering.
05.6 GREENWAYS
(D) Greenways should provide durable, low-maintenance
seating at intervals of 100 feet or less to create
rest areas for pedestrians. Consider more frequent
seating for the comfort of people with limited
mobility. Consider incorporating seating into other
uses such as planters or stairs.
(E) In the interim condition where only one half of
a greenway is constructed at given phase, there
should be a minimum 5 foot clear walkway provided.
The interim design should be created to anticipate a
complete, cohesive design when finished.
Figure 05-6-1 Greenway Section
STEPBACK LINE
65ft 65ft STEPBACK LINE
5 to 10 ft
5 to 10 ft Setback
Setback
30ft
greenway easement combined
20ft fire clearance
15ft
greenway
easement
SETBACK LINESETBACK LINE
GREENWAY EASEMENTPROPERTY LINEGREENWAY EASEMENT
12ft
multi-use
path
8ft
landscape
buffer
6ft
jogging
path (DG)
4ft
landscape
buffer
15ft
greenway
easement
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02/22/19 Tasman East Focus Area Plan 75
(F) Greenways should apply a consistent palette
of materials, paving, trees, lighting and street
furnishings to ensure clarity and legibility of
the greenway network. See Section 4.9 for
paving and lighting standards, and Section
4.10 for tree selection guidance.
(G) Greenways should be well-lit at night to ensure
safety.
(H) Greenways should have a diversity of plantings
and stormwater treatment areas should be
thoughtfully integrated into the overall design.
(I) Greenway connections to open space should be
aesthetically consistent.
(J) Seating areas should have a variety of
scales and be located at intervals along the
greenways, branching off from the continuous
pedestrian path. These spaces should be
socially-oriented and connected to the main
throughway with benches, planting and shade
structures (where appropriate).
(K) At important intersections or gathering places,
consider the use of catenary lighting and
overhead tree canopies to create a sense
of enclosure and scale while maintaining
pedestrian through-traffic.
(L) Specify low-maintenance, durable street
furnishings appropriate to adjacent uses and
program.
(M) Greenways should use a consistent family of
lighting fixtures. Lighting should be designed
to limit light intrusion into residential units.
Consider feature lighting at important nonresidential entrances. Also see Section 4.9 Paving and Lighting for site-wide lighting
guidelines.
(N) Create a rhythmic tree spacing based on
mature size of species selected and the
spacing of lighting. See also section 4.10
Urban Canopy for tree selection criteria.
Landscape-enhanced Social seating areas
pedestrian environment
Greenways will create an interesting and intimate experience for pedestrians and cyclists
Credit: Perkins + Will
Credit: Fletcher Studio Credit: Miller Company Landscape Architects I
RECORD WITHOUT FEE
PURSUANT TO GOV'T CODE SECTION 6103
Recording Requested by:
Office of the City Attorney
City of Santa Clara, California
When Recorded, Mail to:
Office of the City Clerk
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Form per Gov't Code Section 27361.6 [SPACE ABOVE THIS LINE FOR RECORDER'S USE] The undersigned declares that this document is recorded at the request of and for the benefit of the City of Santa Clara and therefore is exempt from the payment of the recording fee pursuant to Government Code §§6103 and 27383 and from the payment of the Documentary Transfer Tax pursuant to Revenue and Taxation Code §11922.
PARK IMPROVEMENT AGREEMENT
BY AND BETWEEN
THE CITY OF SANTA CLARA, CALIFORNIA
AND TASMAN EAST STATION HOLDCO, LLC
This PARK AGREEMENT (this "Agreement") is entered into by and between the CITY OF SANTA CLARA, a ·chartered California municipal corporation with its principal place of business located at 1500 Warburton Ave, Santa Clara, CA ("City"), and TASMAN EAST STATION HOLDCO, LLC, a Delaware limited liability company with its principal place of business located at 444 W. Ocean Blvd Suite 650 Long Beach CA, 90802 ("Developer"). City and Developer may be referred to herein individually as a "Party" or collectively as the "Parties" or "Parties to this Agreement." It is the intent of the Parties that this Agreement shall become operative on the Effective Date.
RECITALS
City and Developer enter into this Agreement on the basis of the following facts, understandings and intentions, and the following recitals are substantive part of this Agreement.
A. Developer is the owner of approximately 2.62 acres of real property, consisting of two parcels (Assessor's Parcel Nos. 097-46-019 ("Parcel 19") and 097-46- 029 ("Parcel 29")), located at the northeastern corner of Calle del Sol and Tasman Drive in the City of Santa Clara, State of California, as more particularly described on Exhibits A-1 and A-2 attached hereto (the "Property"). The Property is located within the boundaries of the Tasman East Specific Plan Area.
018787.0001 4879-9071-2276.1
B. Developer intends to develop: (1) Parcel 19 with a new residential development consisting of 311 dwelling units with private recreational amenity space, 15,870 sq. ft. of retail space, parking, and other associated improvements on approximately 1.87 acres (the "Parcel 19 Project") and; (2) Parcel 29 with a new residential development consisting of 192 dwelling units with private recreational amenity space, 8,000 sq. ft. of retail space, parking, and other associated improvements on approximately 0.75 acres (the "Parcel 29 Project"; and together with the Parcel 19 Project, the "Project"). City approved Architectural Review (PLN2018-13442) for the Project in July of 2019.
C. Santa Clara City Code ("SCCC") Chapter 17.35 requires new residential development to dedicate adequate park and recreational land, pay a fee in-lieu of parkland dedication, or provide a combination of such dedication and fee, at the discretion of the City, for the purpose of developing new or rehabilitating existing parks and recreational facilities (the "Parkland Requirements"). The development of the Project, which will occur in phases as described below, is subject to the Parkland Requirements.
D. Developer proposes to submit the Project uniformly under the Mitigation Fee Act provisions of SCCC Chapter 17. 35. The Project will generate an estimated 1, 127 Residents (2.24 persons/household x 503 units). Based on the FY2017-18 Mitigation Fee Act Dedication Standard of 2.53 acres of parkland per 1,000 residents, the amount of public parkland required for this Project to mitigate the impact of the total new resident demand is 2.8506 acres. The equivalent fee due in-lieu of parkland dedication is $11,595,659. The new resident demand associated with the Parcel 19 Project is 697 new residents, which equates to a parkland dedication requirement of 1.7625 acres or an equivalent fee due in-lieu of parkland dedication of approximately $7, 169,483. The new resident demand associated with the Parcel 29 Project is 430 new residents, which equates to a parkland dedication of 1.0881 acres or an equivalent fee due in-lieu of parkland dedication of approximately $4,426,176.
E. Developer intends to satisfy the Parkland Requirements for the Project in part by dedicating a 0.109-acre mini-park with the construction of the Parcel 19 Project "Phase I Public Park," defined and depicted on Exhibit 8-1 attached hereto, and a
0.0218-acre Public Park Plaza with the construction of the Parcel 29 Project "Phase II Public Plaza," generally as depicted on Exhibit 8-2 attached hereto, to be further defined and depicted at the time of permitting for Phase II (together, the "Public Parks") to City for parkland and recreational purposes in phases as described and in accordance with the provisions of this Agreement. Developer will dedicate Phase I Public Park as a fee simple estate and Phase II Public Plaza as an easement in favor of the public.
F. Developer is eligible to receive a credit of 50% of the value of the land devoted to eligible private recreational amenities against the Parkland Requirements as shown on Exhibit C (the "Phase I Private Amenities"). Eligible private recreational amenities constructed in Phase I shall receive a credit against the parkland dedication requirements for Phase I. Eligible private recreational amenities constructed in Phase II shall receive a credit against the parkland dedication requirements for Phase II. If Developer has not pulled building permits for Phase II within eight (8) years of building 018787.0001 4879-9071-2276.1
permit issuance for Phase I, Developer shall return $1,178,116, the value of the credit received against the parkland dedication requirement, to the City, as further described in Section 4 of this Agreement.
G. [Intentionally Omitted]
H. Developer intends to satisfy the remaining balance of the Parkland Requirements for each phase of the Project through payment of fees due in-lieu of parkland dedication established pursuant to SCCC Chapter 17 .35 in accordance with the Mitigation Fee Act.
I. Developer intends to construct and improve the Public Parks with certain park improvements and recreational facilities (the "Park Improvements") as described and depicted in the plans and specifications attached as Exhibit D hereto (the "Park Improvement Plans").
J. Developer intends to construct and improve the Phase II Public Plaza as part of the Parcel 29 Project. Prior to occupancy of the Parcel 29 Project, the Parties will enter into a separate "Memorandum of Understanding Regarding Phase 2 Park Agreement" (the "Phase II MOU") which will include a plat and legal description for the Phase II Public Plaza, as well as the associated calculations for credits associated with eligible private recreational amenities for Phase II.
K. Upon completion of the Park Improvements for each phase, City intends to accept the Phase I Public Park, the Phase II Public Plaza, and the Park Improvements constructed thereon for such phase in accordance with this Agreement.
L. Calculation of the SCCC Chapter 17 .35 Parkland Requirements for the Project, including the acreage of the dedicated Public Parks (as described in Recital L below) of the Project, the credit for eligible private recreational amenities for each Phase, and the remaining fee due in lieu of parkland dedication for each Phase, is attached hereto as Exhibit E.
M. Developer intends to construct the Project in the following Phases:
"Phase I", consisting of the Parcel 19 Project, including a total of four thousand, seven hundred and forty-eight (4,748) square feet of Phase I Public Park, a portion of which would be located on Parcel 29, twenty-seven thousand, nine hundred and seventy-six (27,976) square feet of Phase I Private Amenities; and "Phase II" consisting of the Parcel 29 Project, including nine hundred and fifty (950) square feet of Phase II Public Plaza and approximately twelve thousand, three hundred and fifty-four (12,354) square feet of eligible private recreational amenities. The final amount of eligible private recreational amenities and Phase II will be refined and validated in connection with the permitting process for Phase 11 and memorialized in the Phase 11 MOU.
N. Developer and City intend for the fees in lieu of parkland dedication to be paid and the Park Improvements to be constructed and completed as set forth herein. 018787.0001 4879-9071-2276.1
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement and for valuable consideration, receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Recitals Incorporated. The foregoing recitals are true and correct, and are part of this Agreement for all purposes.
2. Design and Construction of Park Improvements.
(a) Construction Documents. City has previously approved the schematic design plans for the Park Improvements as shown in the Park Improvement Plans attached hereto as Exhibit D. For each phase, Developer shall prepare and submit to City final plans and specifications for the Park Improvements (the "Construction Documents"), which shall substantially conform to the Park Improvement Plans. The Developer shall also submit soil and geotechnical reports, as well as GIS CAD drawings for the areas of the Park Improvements for each respective phase at the same time as the Construction Documents.
(b) Approval of Construction Documents. City shall review and approve the Construction Documents, including plans and specifications, for the construction, design and improvements of the Public Parks prior to the start of construction, or review and provide comments regarding any necessary corrections thereto, in a prompt and timely manner, and in no event more than thirty (30) days after receipt of the Construction Documents from Developer. In the event that City provides comments regarding any necessary corrections to the Construction Documents, Developer shall promptly, within thirty (30) days, revise and resubmit the Construction Documents to City. City shall then approve such revised Construction Documents, or provide any further comments regarding any necessary corrections thereto, within ten (10) days after receipt of the revised Construction Documents from Developer. In the event that City provides any further comments regarding any necessary corrections to the Construction Documents, Developer shall promptly, within thirty (30) days, revise and resubmit the Construction Documents to City. City and Developer shall repeat this process for the approval of the Construction Documents specified in this Section until the City approves the Construction Documents. City's review of the Construction Documents pursuant to this Section shall be limited to conformance with Park Improvement Plans, Parks & Recreation Department Park Amenity & Design Standards, and City's applicable Standard Specifications for Public Works Construction.
(c) Construction. The Park Improvements for the Public Parks shall be constructed in compliance with City-approved Construction Documents. Developer, through its design professionals, shall review and approve all materials of construction and provide a copy of all approved material submittals to City for use during the construction phase. Developer and Developer's construction contractor shall provide regular construction updates of construction schedule activities to allow City, at its discretion, to perform inspection of work progress and, if desired by City, testing of 018787.0001 4879-9071-2276.1
materials. At City's discretion, City may inspect the Park Improvements during construction to ensure conformity with plans and standards. Developer shall commence and complete the construction of the Park Improvements at such times as Developer deems desirable, subject to the phasing requirements set forth in Section 3 below.
Developer shall provide no less than two weeks advance notice prior to the start of construction on the Public Park and the Public Plaza.
(d) Changes to Park Improvement Plans. Any material changes to the Park Improvement Plans for the Public Parks must be proposed in writing and shall be subject to the prior written approval of City and Developer in their respective reasonable discretion. Within sixty (60) days of completion of each phase of the Park Improvements, Developer shall provide the City with one complete set of paper and digital format files of the as-built drawings showing all Park Improvements as actually constructed in the field. (e) Completion of Construction: Final Inspection. When Developer completes the construction of the Park Improvements for each Phase (the Phase I Public Park and the Phase II Public Plaza), Developer shall provide written notice of completion to City ("Notice of Completion") and request that City perform a walk-through inspection.
Within five (5) business days following the date of City's receipt of the Notice of Completion for the Phase I Public Park or the Phase II Public Plaza , City shall conduct a final inspection of the applicable Park Improvements (the "Final Inspection"). If, during the Final Inspection, City determines that the Park Improvements have not been completed in accordance with the approved Construction Documents, City shall prepare a punch list of all items to be completed by Developer and shall provide such punch list to Developer within five (5) business days following the Final Inspection. If City delivers such punch list to Developer, then Developer shall undertake to complete or repair such punch list items in a diligent manner. Upon completion of the punch list work, Developer shall request another Final Inspection from City and within five (5) business days following such written notice from Developer, City shall conduct another Final Inspection. If City determines that the punch list work is complete, City shall immediately deliver a notification of final completion to Developer. If City determines that the punch list work is not complete, then City and Developer shall repeat the Final Inspection/punch list procedures specified in this Section until the successful completion of the punch list work. (f) Acceptance. The Public Parks, including the Park Improvements, shall be granted by Developer to City by separate instruments after the Park Improvements thereon have been inspected and accepted by City pursuant to Section 2(e) of this Agreement. The City shall accept the Park Improvements prior to their use by the general public. City shall accept dedication of fee title to the Phase I Public Park by means of a grant deed in form and substance acceptable to Developer and City (the "Park Grant Deed"). Developer shall record an easement over the Phase II Public Plaza in favor of the public (the "Plaza Easement") within sixty (60) days of being inspected and accepted by City pursuant to Section 2(e) of this Agreement. The Park Grant Deed and the Plaza Easement shall each include language describing the date of the City's acceptance of the Phase I Public Park and the Phase II Public Plaza, respectively. The close of escrow for the Phase I Public Park shall occur no later than sixty (60) days after the completion and acceptance of the Phase I Public Park by the City. City shall open 018787.0001 4879-9071-2276.1
escrow and request a preliminary title report for the Phase I Public Park to facilitate the transfer of fee title from Developer to City. Developer shall cause to be provided to City, concurrently with the conveyance of the Phase I Public Park to City, and at a later date, of the Phase II Public Plaza to City, a Pro Forma AL TA standard owner's form policy of title insurance, issued by the title company where escrow is open, with City named as the insured. The amount for the title insurance shall be determined using the value of the land listed in the Municipal Fee Schedule for the fiscal year of the title transfer plus the actual cost of construction which shall be provided by Developer. All title and escrow fees shall be paid by Developer. Transfer shall be at Developer's sole cost. (g) Maintenance and Repair. Prior to the acceptance of Park Improvements for the Public Parks by City, Developer shall, at its sole cost and expense, maintain, repair, replace and insure the Park Improvements until City acceptance of the Park Grant Deed and recordation of the Plaza Easement. Following City acceptance of the Park Improvements, Developer shall maintain the Park Improvements pursuant to, and as governed solely and exclusively by, a separate Park Maintenance Agreement entered into between Developer and City concurrently with or subsequent to their execution of this Agreement (the "Park Maintenance Agreement"). (h) Hold Harmless/Indemnification. Developer and its successors in interest agree to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, agents, and employees from and against any and all claims, injury, demands, losses, damages, liabilities, costs, expenses, charges, administrative and judicial proceedings and orders, judgments, and reasonable attorneys' fees and costs (collectively, the "Losses") to the extent caused by Developer's failure to perform its construction or maintenance obligations under this Agreement, except to the extent arising from the willful misconduct or grossly negligent acts or omissions of the City or its officers, employees and agents, or to the extent arising from the use of the Public Parks by the public (except as set forth below). City shall defend, indemnify and hold Developer, and its officers, directors, shareholders, members, managers, agents, and employees harmless from and against any and all Losses to the extent caused by the use of the Public Parks by members of the public; provided, however, the indemnity obligations of City under this paragraph shall not apply to the extent of any injury, damage or loss that results from the breach of Developer's obligations to maintain or repair the Public Parks in accordance with this Agreement prior to City acceptance.
3. Phasing of Park Improvements. Developer shall have the right to construct the Project in the Phases as set forth in the Recitals; provided, however, that in constructing the Project, Developer shall comply with the following phasing and completion requirements.
(a) Phase I Park Improvements. Developer shall complete construction of the Park Improvements for Phase I Public Park in accordance with the City-approved Construction Documents and prior to issuance of the Final Certificate of Occupancy for the apartment building component of the Parcel 19 Project, in accordance with the Cityapproved Construction Documents. 018787.0001 4879-9071-2276.1
(b) Phase II Park Improvements. Developer shall complete construction of the Park Improvements for Phase II in accordance with the City-approved Construction Documents within twelve (12) months following issuance of the Certificate of Occupancy for the apartment building component of the Parcel 29 Project, in accordance with the City-approved Construction Documents.
(c) Completion of Park Improvements. For the purposes of this Section 3, the Park Improvements for each phase shall be deemed to be "completed" when Developer has completed construction of the applicable Park Improvements in accordance with City-approved Construction Documents and delivered the Notice of Completion (as defined in Section 2(f)) to City. The Parties agree that the Park Improvements shall be deemed complete for the purpose of this Section 3 prior to such Park Improvements undergoing Final Inspection by City and prior to their acceptance by City. For the avoidance of doubt, there will be two separate Notices of Completion, one for each respective Phase.
4. Payment of Parkland In Lieu Fee. Developer and City agree that the Parkland In Lieu Fee to be paid for each Phase of the Project is set forth on the schedule attached hereto as Exhibit E ("Parkland In Lieu Fee Payment Schedule"). The Parkland In Lieu Fee payments take into account the calculation of SCCC Chapter 17.35 Parkland Requirements for the Project, the acreage of the dedicated Public Parks, the value of the Park Improvements to the dedicated parkland, the credit at 50% for eligible on-site Private Amenities, and the credit at 50% for the Greenway. (a) Park Fees and Credits. The Project will generate an estimated 1,127 residents (2.24 persons/household x 503 units). Based on the standard of 2.53 acres/1,000 residents, the amount of public parkland required for this Project to mitigate the impact of the new resident demand is approximately 2.8506 acres. The equivalent fee due in lieu of parkland dedication is calculated at $11,595,659. i. Public Park Dedication. Developer is providing: (A) the four thousand, seven hundred and forty-eight (4,748) square foot "Central Plaza" public park in fee title to the City in Phase I, and (B) the nine hundred and fifty (950) square foot "Gateway Plaza" public park in fee title to the City in Phase II. The Central Plaza dedication in Phase 1 will reduce the parkland requirement by
0.1090 acres from 2.8506 acres (resulting in a reduction in the inlieu fee amount by $399,921), and the Gateway Plaza dedication in Phase II will reduce the parkland requirement by 0.0218 acres (resulting in a reduction in the in-lieu fee amount of $79,984), as shown in Exhibit E.
ii. Phase I Private Amenities Credit. Developer is providing: twentyseven thousand, nine hundred and seventy-six (27,976) square feet of Private Amenities space in Phase I per Exhibit E. The credit for the Phase I Private Amenities, which amounts to 0.6422 acres, is provided at 50%, for a total of $1,178,116.
018787.0001 4879-9071-2276.1
iii. Phase I Public Park Fees. The total balance of fees due for Phase I of the park fee is $5,591,446, as shown in Exhibit E. iv. Phase II Public Plaza Fees. The total balance of fees due for Phase II of the park fee, including application of credits for eligible private recreational amenity space proposed as part of Phase II, will be reconciled before issuance of the first building permit for Phase II.
(b) The Parties acknowledge that SCCC Chapter 17.35 requires that total eligible Private Amenities must be at least three-quarters acre in size to receive credit against the project's parkland dedication requirement. The Parties further acknowledge that the Project will exceed the eligible private amenity acreage requirement upon completion of Phase II. The Phase 1 Private Amenities to be constructed with Phase I will serve the residents of the Parcel 19 Project, and shall be credited against the Phase I Park Fees, provided that if a building permit for Phase II is not issued within eight (8) years of building permit issuance for Phase I, Developer shall return the credited amount of $1,178,116 to the City. If a building permit for Phase II is issued after the credit for the Phase I Private Amenities is returned to the City (i.e., after 8 years from the date a building permit is issued for Phase I), the Parkland Requirements for Phase II shall be reduced by the same amount. As additional consideration for providing the Phase I Private Amenities credit upfront, Developer shall (i) pay $50,000 to the City for deposit into the Park Impact Fee Fund on or before the fourth anniversary of the Effective Date (the "Voluntary Contribution"), which shall be in addition to the in-lieu fees owed under SCCC Chapter
17.35 and will not count as a credit against future in-lieu fees due for Phase II, and (ii) execute and send to the City a guaranty from Developer's parent company substantially in the form attached as Exhibit G within thirty days of the Effective Date of this Agreement.
(c) Timing of Payments. Developer shall pay the Parkland In Lieu Fee allocable to each Phase of the Project as shown on Exhibit H prior to issuance of the first residential building permit for such Phase.
5. Private Amenities. Developer shall maintain all Private Amenities as private parkland and recreational amenities devoted to active residential uses for the lifetime of the Project.
6. Notices. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") pursuant to this Agreement shall be in writing and delivered in person, by commercial courier or by first-class certified mail, postage prepaid. Notices shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or (c) sent by receipted overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows:
018787.0001 4879-9071-2276.1
If to City:
City of Santa Clara
Attn: Director of Parks & Recreation
1500 Warburton Avenue
Santa Clara, California 95050
Or by facsimile at (408).260-9719
If to Developer:
Tasman East Station Holdco, LLC
c/o Ensemble Real Estate Investments
4 722 North 24th Street, Ste. 400
Phoenix, Arizona 85016
Attention: Rob Gomez
Copy to:
Coblentz Patch Duffy & Bass LLP
1 Montgomery Street, Suite 3000
San Francisco, CA 94104
Attention: Frank Petrilli
Either Party may change its address for purposes of this Section by giving written notice to the other Party. All notices shall be deemed given and received, if served personally, when actually received and receipt is acknowledged in writing, upon delivery if delivered by commercial courier, or two (2) days after mailing if sent by United States Postal Service. If delivery of a notice is refused between the hours of 9:00 AM. and 5:00 P.M. on a business day, or fails because of a changed address of which no notice was given, then such notice shall be deemed given and received, if mailed or sent by courier, at the time delivery was first attempted, as shown by postal or courier receipt.
7. Default. Any failure by either Party to perform any term or provision of the Agreement, including Developer's failure to pay the Voluntary Contribution by the Contribution Deadline, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other Party (unless such period is extended by mutual written consent), will constitute a default under the Agreement. Any notice given will specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such 30-day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, will be deemed to be a cure within such 30-day period.
Upon the occurrence of a default under the Agreement, the non-defaulting Party may institute legal proceedings to enforce the terms of the Agreement or, in the event of a material default, terminate the Agreement. If the default is cured, then no default will exist and the noticing party shall take no further action.
018787.0001 4879-9071-2276.1
8. Amendment. The provisions of this Agreement may be waived, altered, amended, or repealed, in whole or in part, only by the mutual agreement of the Parties in writing.
9. Term. All of the obligations and requirements specified in this Agreement shall be fully satisfied once both the Park Grant Deed and the Plaza Easement have been recorded.
10. Estoppel Certificate. Developer may, at any time and from time to time, or in connection with the sale or transfer of the Property or any part thereof, or in connection with the leasing or financing or refinancing of the Property or any part thereof, deliver written notice to the City, requesting City to certify in writing to Developer or the prospective or current mortgagee, or prospective lessee or purchaser of its Property or any part thereof, that to the knowledge of the City (i) Developer is not in default in the performance of any of its obligations owed to the City hereunder, or, if in default, to describe therein the nature of any and all defaults, (ii) whether this Agreement has been modified, amended or assigned in any way by the City (and if it has, then stating the nature thereof), (iii) this Agreement as of that date is in full force and effect, and (iv) such other information as the Developer may reasonably request. City shall execute and return such certificate within fifteen (15) days following the receipt thereof.
11. Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it shall in no way affect, impair or invalidate any other provisions hereof, and the other provisions shall remain in full force and effect.
12. Assignment. Developer's rights and obligations set forth in this Agreement shall be transferable and assignable to any subsequent fee owner of the Project without the need for City's prior consent or approval; provided, however, that at the time of any such transfer or assignment of Developer's fee interest in the Project, Developer shall (i) notify City in writing of the transfer/assignment and (ii) deliver to City an assignment and assumption agreement executed by Developer and its transferee/assignee pursuant to which Developer's transferee/assignee assumes all of Developer's obligations set forth herein with respect to the Project which accrue or arise from and after the date of the assignment, including the obligations for installation of the Park Improvements, dedication of the Public Park in fee title, and payment of the Parkland In-Lieu Fee (to the extent such construction or payment obligations have not been completed) . After the date that such transfer/assignment occurs and a copy of the fully executed assignment and assumption agreement has been delivered to City, the transferor/assignor shall be released from all liabilities and obligations hereunder which accrue or arise from and after the date of the assignment. As used in this Agreement, the term "Developer" shall be deemed to include any such transferee/assignee after the date such transfer/assignment occurs.
13. Construction of Agreement. This Agreement and each of the provisions herein, has been reached as a result of negotiations between the Parties and their respective attorneys; This Agreement shall not be deemed to have been prepared by, or drafted by, any particular Party or Parties hereto, and the normal rule of construction to 018787.0001 4879-9071 -2276.1
the effect that any ambiguities are to be resolved against the drafting Party or Parties shall not be employed in the interpretation of this Agreement. The language in this Agreement in all cases shall be construed as a whole and in accordance with its fair meaning.
14. Attorney's Fees. In the event of litigation between the Parties, or if a Party becomes involved in litigation because of the wrongful acts of the other Party, the Parties shall each pay their respective attorney's fees, expert witness costs and cost of suit.
15. Governing Law. This Agreement shall be construed in accordance with and governed by the 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.
16. 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; and, the Parties agree that the signatures on this Agreement, including those transmitted by facsimile, shall be sufficient to bind the Parties.
17. Mortgagee Protection. Nothing in this Agreement shall be interpreted to render invalid any deed of trust or mortgage encumbering any portion of the Property. No beneficiary under any such deed of trust, purchaser at a foreclosure sale of such deed of trust, or grantee of a deed in lieu of foreclosure shall be obligated to cure any default of the previous owner of the Property unless such obligation is expressly assumed in writing, provided that the purchaser or grantee upon receiving title to the Property shall take title subject to this Agreement and shall assume the obligations of Developer accruing from and after the date the purchaser or grantee received title. [Remainder of Page Intentionally Blank; Signatures Follow] 018787,0001 4879-9071-2276.1
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:
GLEN R. GOOGINS
City Attorney
Dated: July 31, 2024
Tasman East Station Holdco, LLC,
a Delaware limited liability company
By: Ensemble Investments, LLC,
Dated: ------------
JOVAN D. GROGAN
City Manager
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: ( 408) 615-2210
Fax: (408) 241-6771
"CITY"
an Arizona limited liability company, its Manager
me: Michael Moskowitz
Title: Manager
"DEVELOPER"
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 Los Angeles
018787.0001 4879-9071-2276.1
)
)
On July 31, 2024, before me, 11f#/1/0l{AIE #'IIJ5 1/o?tU?Jlf , a Notary Public, personally appeared Michael Moskowitz, 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 PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
.. .. .. : ~+ MAFff JUNE REYES HOFILENA
i l ~ Notary Public • Califomla
z 1 Los Angele5 County I • Commiss ion II 1"82759
My Comm. Expires Feb 23, 2028
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 _ ____ _ ___ , before me, ___ ____ ______ , a Notary Public, 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 PENAL TY 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
018787.0001 4879-9071-2276.1
018787.0001 4879-9071-2276.1
EXHIBIT A-1
PARCEL 19 LEGAL DESCRIPTION
[Attached]
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA CLARA, IN THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
Parcel 22, as shown upon that certain Map entitled, "Parcel Map being a portion of the Ulistac Rancho", which Map was filed for record in the Office o,f the Recorder of the County of Santa Clara, State of California, on February 27, 1976, in Book 368 of Maps at Pages 14 and 15.
APN: 097-46-019
018787.0001 4879-9071-2276.1
018787.0001 4879-9071-2276.1
EXHIBIT A-2
PARCEL 29 LEGAL DESCRIPTION
[Attached]
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SANTA CLARA, IN TI-IE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOL.LOWS:
Parcel One:
Paree! 1, as shown on that certain Parcel Map filed for record i.n the Office of the Recorder of the County of Santa Clara, State of ca1ifomia on December 16, 1996 in Book 684 of Maps at Pages 45 and 46.
Excepting therefrom that portion of said land conveyed to the Santa Clara County Transit Disbict in that certain Grant Deed recorded December 06, 1999 as J:nstrument No. 15079054, and more particular1y descrtbed as follows:
All of that certain property situated in the City of Santa Clara, County of Santa Clara, State of Cafifomia, and being a portion of Parcel 1, as said Parcel 1 ts shown on that certaiin Parcel Map filed in Book 684 of Maps at Pages 45-46, records of Santa Clara County, Califom~ and more particularly described as follows:
Beginnrng at the southeasterly comer of Parcel 1, said point also being on the northerly line of Tasman Drive as said Parcel and Olive are shown on said Parcel Map, thence southwesterly along the souther1y line of said Parcel 1 (northerly line of Tasman Drive) the following two (2) described courses: 1) from a tangent bearing of South 63" 22' 16" West along a curve concave northwesterly with a radius of 2951.84 feet through a central angfe of 2• 22' 12" and an arc length of 122 .10 feet to the beginning of a compound C\.IM! concave northerly with a radius of 40 .00 feet; 2) westerly along the last said curve (with radius 40.00 feet) through a central angle of 76" 1 0' 54" and an arc length of 53.18 feet to a point of cusp with a curve concave northerly with a radius of 37 .oo feet; thence 6eaving said souther1y fine of Parcel 1 (northerly line ofTasman drive) from a •tangent beartng of South 50" 57' 32" East along the last said curve (with radius 37.00 feet) through a central angle of 62~ 56' 16" and an arc length of
40.64 feet; thence South 23° 53' 48" East 3.00 feet; thence North 66. 06' 12" East 127.93 feet to the northeasterly f:ine of said Parcel 1; thence southeasterty along said northeasterly line of Parcel 1; thence southeasterly along said northeastefty line of Parcel 1 south 2r 00' 29" East 3.7 4 feet to the point of beginning.
By Deed recorded December 21, 2010 as Instrument No. 21012786, the Santa Clara Valley Transportation Authority, a public agency, assigned and conveyed their interest to the City of Santa Clara, a chartered municipal corporation of the state of California.
Parcel Two:
An easement for Private Ingress-Egress 13 feet wfde over Parcel 2 for the tJenefit of Parcel 1, as shown on the Map filed December 16, 1996 in Book 684 of Maps at Pages 45 and 46.
Parcel Three:
An easement for Emergency Vehicle Ingress-Egress 13 feet wide over Parcel 2 for the benefit of Parcel 1, gs shown on the Map filed December 16, 1996 in Book 684 of Maps at Pages 45 and 46.
APN: 097-46-029
018787.0001 4879-9071-2276.1
EXHIBIT 8-1
PHASE I PUBLIC PARK PLATS AND LEGAL DESCRIPTIONS
[Attached]
018787.0001 4879-9071-2276.1
PARCE'."L DEDTCATTON
2272 Cilllc De Luna, Santa Clara, CA
Real propmy in tht: City of Santa Ciera, County of Santa Clara, State of Cal ifomia, described as follows:
Being o portion of Lot 22, as said Lot Ls shown on that certain Parcel Map, filed for rerord on February 27, 1976 in Book 361! of Maps et Pages 14 and IS, Records oJSnnta Clara County, more particularly described as follows:
BEGINNING at the mos.t southerly cClttler of Sil.id Lot 22, sald comer being also a point on the northeasterly line of Ca.Ur: Del Sol, bc:-ing 6-0.0CI fc:¢1: in w;ld.th, es shi;w;11 on said Parcel Mft.p; T111:ncc lell.ving Sll:id corner and alone lhe southeasterly line of said Lot 22, North 62°S8'48" East, 137-67 feet;
Thence leaving said southeasterly line of said Lor 22, North 14"25'22"West, 16.26 feet; Thence South 62.,54' 1 l''Wcst, I 40.99 feet to a point on sai-0 nonhcastcrly line of Calle Del Sol, said point being also th~ hegin11i11g of a. non-tangent curve, concave to the northeast, having a Radius of2239.88 feet, with n radial line that bears South 64'"00'23" West;
The.nee 11long said norclieasterly tine of Calle Del Sot, southeasterly along said curve, through a cenlral Angle of00°24'04", with an £lfC Length of 15.68 feet to the point of BEGINNING.
Containii:Jg an area of 2,197 square fcct, mare or less., Being a portion of Santa Clara County Assess.or' 11 Parcel Number 097-46-019 ~ Roll Y car 2021-22, BASIS OF BEARINGS: The bearing North 61! 0 35'47" Ea.st of the centerline of Clllle De L11M, belween found momunenls, was, taken es the basis ofbearings. SiUd bearing is based on the North American Datum of 1983 (NADB3 ), California Coordiruitl:! System, Zone 3, El)och 20 l 0. Aft distances in the description are grid dislances. Multiply express.ed distances by 1.00005310 to obtain grow1d distances. Area shown is cakiilated using grid dii.tances_
Aa Jhown on EXHIBIT "B" attnched hereto and by this reference made a part hereor.
By: j
John Koroyan
P.L.S. No. 8883
Date: Nov. 1 .> ~~'Zf
018787.0001 4879-9071-2276.1
- - CALLE D£ lUN N6a'Js'47"E 409 , - - A J_so· ~DE:) (N67'J5.'4a•r •9,2 - ~---=---- i:. 410.00') BASIS OF BEARINGS:
THE: SEARING NORTH 68'.'35'4r EAST Of THE CENl"EJlUNE OF CALL£ OE LUNA. BET'l'l£EN FOUND MONUMENTS, WAS TAKEN AS THE BASIS OF 8EAAIMGS. SAIO EIE:AruNG IS BA.SED ON THE NORTH AMERICAN DATUM OF 1983 (NAD83), C.WF'ORNIA COORDINATE SYSTEM, ZOi 'E 3, £POC1-I 2010, ALL DISTANCES IN 1HE DESCRIPTION ARE GR10 DISTANCES.
I.IUL TIPL 'f EXPRESSED OISTA~CES BY 1,00005310 TD OBTAIN GROUND DISTANCES. AREA SHOWN rs CALCULATED USING GRID DISTANCES.
LEG£NO
.A.PH ASSESSOR'S PARCEL NUt..tBER PER
ROU. YEAR 2021-22
(R) RADJAL BEAR~G
( RECORD INFORMATION PER PM 368 M 14-15
ti) FOUND MONUi.fENT PER PM 368 M 14-15
2272 CALI.E D£ UIHA
SAMTA CLARA, CA
LOT :22
J68 M 14-15
APN 097-4S-019
(2021-22)
PARCEL DEDICATION
S64"00'2:S•w (R) 2,197 SQ.FT.±
/ - - - - S62'54'WW 140.99'
N62'56' 46"E 137, 67"
2221 TASMAN ORJVE
SANTA CLARA. CA
PARCEL 1
664 M 45-48
APN 097-46--02.9
(2021-22)
EXHIBIT "B ..
K: \20l8\l8109~_TAS1.IAIUAST..SlATION\SUR\OWG\PARK OEIXC.AllON\tfORll-i~ P/IRC(L omc\11(),1~ Pl.AT TO AOOO~P ANY
LEGAL DESCRIPTION
018787.0001 4879-9071-2276.1
1130 N, FIRST STREET
SUlTE GOO
SANJOSE.CA ~5112
4()8-467Cflll)O
www.bkf.cum
Sub-Jed PARCEL D~.IWON
2272 CALLE DE WN1',~AN,IA Ct.ARA, CA
Job No. 20181096
By CASC Dote ll-QJ-202J Chkd.~
SHEET .. l OF _L__
PARCEL DEDICATION
2221 Tasnum Drive, Santa Clara, CA
Rall property in the Cily of Santa Clara, Counfy of'Santa Clara, State ofCalifurnia, described as follows:
Being a portion of Parcel 1, as Slltd Parcel is shown on that cert.a in Parcel Map, filed for record on December 16, 1996 in Book 684 of Maps at Pages 45 and 46, Records of Santa Clara County, more particutady described as follows:
BEGJNNJNG at the most westerly comer of said Pll.t'Cel J, said Cl)rnet. being also a. pc,iot on th1:
northeasterly line of C'.allc Del Sol, bcing 60.00 fed in widt:b~ ilS shown on said Paree.I Map; Thence lcavlng said c:omcr and along tho northwcst.crly line, of said Parcel l, North 62"58' 48" East, 137 .67 feet;
Thence leaving, ~id northwesterly line of said Parcel 1, South 14"25'22" Ea.st, 1,69 feet; Thence South 27°11 '56" East, 9.81 feet to 1he beginning ofa tangent curve to the right, having a Radius of
8.50 feet;
Thence Southerly along said ClltVe, through a central Angle of 40°30'21", with an arc Length of6.01 !bet; 11:ience South 62"59' 13" West, 135.44 feet to a point on said northeasterly line ofCcille Del Sol, .said point being also the be-ginning of a non-tangent curve, concave to the north.east, having .a Radius of 223?.88 fr:et, witn a radial line that l:nmrs South 63°10'17" West;
Tbcncc along said northe11.stcrly line of Calle Del Sol, northwesterly along said curve, through a central Angle of00"26'03", with an arc Length of 16.97 feet to the, point of BEGINNING.
Containing an a~ of 2,329 square &et, more or less,
Being a portion of Santa Clara County As&e.ssor's Parcel N111mber 097-46-029 per Roll Year 2021-22.
BASIS OF BEARINGS: The bearing North 68"35'47" East of the center1!ri.c of Calle De Luna, between found monwnetits, wtis laken as the· basis ofbearin~. Said bearing i$ based on the N(}rth American Datum of 1983 (NADSJ). California Coordinate Sy:.tom, Zone 3, Epoch 2010, All disumccs in the description are grid di.seances. Multiply expressed distances by 1.00005310 to obtain groUJJd distances. Area sl1own is calculated using grid distainQes.
As sl1own on EXHmIT "B'" attllched hereto and by this refertneo made a p:art herl!of.
By: t)~
John Koroyan
P.L.S . .No, 8883
Date: Nov. l, zoz.'
018787 .0001 4879-9071-2276.1
EXHIBIT 8-2
PHASE 2 PUBLIC PLAZA SITE PLAN
018787.0001 4879-9071-2276.1
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Tenant{$)
Shrub Planting area with
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8tnch.Typ.
Tasman Drive
Building
29 - J;:_
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11 North
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- ~---~- - _ CALLE DE LUN•
},jsa•35•47•-. - - ----~- (ao· , ... 0,,.) (N67·J"'Aa•" 409.92' - -"' "' ".. E ?lo.oo·} ----- BASIS OF BEARINGS:
THE 6£AfU.NG N<lRTH 88'35'"79 EAST Or lHE CENTERLINE or CAI.LE DE LUNA, BETWEEN f"OlJND MONUMENlS, WAS TA'KEN AS THE BASIS OF BEARINGS. SAJD BEARING IS BASED ON TH£ NORTH AM~ICAN OA'TUM Of 1883 (NADB.3), CAUFO~ IA COORDINATE SYSlc:M, 10NE 3, EPOCH 2010, ALL OiSTANCtS IN THE DESCRIP-TlON ARE GRID DISTANCES.
MUL'TlPl Y EX!SRESSEO DISTANCES BY 1.00005310 TO OBTAIN GROUND DISTANC~ AAE.A SHOWN IS CAI.CULATID USING GRID DISTANCES.
LEGEND
AF'N ASSESSOR'S PARCE'.L NUMBER PER
ROLL VEAR 20i1-22
(R) RADIAL BEARING
( RECOR<> INFORt.lATION PER PM J68 M 14-16
(I, FOUND t.lONUl.fENT F'ER P~ .3&-8 M 14-15
LINE TABLE
NO. BEARING LENGTI-l
L 1 S14'25'2l"E 1.69'
2272 CAI.I.£ OE: LUNA
SAN TA CLARA, CA.
LOT .22
j68 M 14-15
0 ..,
l.2 S2711'5&"E 9,81' APN 087-4'1!-0HI
NO. RADIUS
CURVE
DELTA
TABLE
LENGTH
(202:1-22)
~
C1 S..!5o' 404J0'21· Ml'
N62'!J8'.ffl"E: 137.87'
\ sa~'10'l t *W S62"59'13*W 135,44'
\.: _ - - - 2221 TASMAN DRI\IE
(R) SANTA CLARA. CA
PARCEL f
oMM.45-.tfi
APN 091-46-029
(2021-22)
PARCEL
DEDICATION
2,J.2.9 SQ.FT.±
( sew; JN RET )
EXHIBIT "B"
K: \201 B\181098-TASMAtJ..EJ.ST....STATION~R\DWG\PAA!< OEDltATION\SOOTHERM PAACO. tlEDIC4 'IION.DWll PLAT ID ACro.t?ANY LEGAL 0£SCRIP110H
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SAlO OSE, CA9H12 Job No. --=2..._01=8;.c.;110t.::9;.;:;6 ____ _____ _
40.8-467-91 00 By CASC Dots 11-01-2021 Chkd. JVK
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EXHIBIT D
PARK IMPROVEMENTS
[Attached]
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0 EXHIBIT E
CALCULATION OF PARKLAND REQUIREMENTS
Developer's Project will generate an estimated 1, 127 Residents (2.24 persons/household x 503 units). Based on the Mitigation Fee Act Dedication Standard of 2.53 acres of parkland per 1,000 residents, the amount of public parkland required for this Project to mitigate the impact of the total new resident demand is 2.8506 acres. The equivalent fee in-lieu of parkland dedication is anticipated to be $11,595,659 before accounting for deductions and credits.
As the Developer is only permitting Phase I for Parcel 19 at this time, the calculations are only being done in reference to Phase l's 311 units, associated park dedication, and private recreational amenities associated with Parcel 19. The new resident demand associated with the Parcel 19 Project (Phase I) is 697 new residents, which equates to a parkland dedication requirement of 1.7634 acres or an in-lieu fee of approximately $7,169,483. The new resident demand associated with the Parcel 29 Project is 430 residents, which equates to a parkland dedication of 1.0879 acres or an in-lieu fee of approximately $4,426, 176.
Developer has proposed to meet the required parkland dedication through dedication of the Phase I Public Park (.11 acres) and the Phase II Public Plaza (950 sq. ft.); development of the Phase I and Phase II Private Recreational Amenities (40,330 sq. ft.) for a total of 0.9258 acres; and to pay the remainder owed as a fee in lieu of parkland dedication for Phase I in the amount of $5,591,446 and for Phase II in the amount of$3,825,837.
According to City Code Section 17.35, projects may submit a written request for up to 50% credit against the amount of parkland dedication or the amount of the fee in-lieu thereof for eligible onsite private parkland and recreational amenities devoted to active recreational uses. The Project includes 0.9258 acres of private active recreational amenities with Phase I and Phase II. The credit is therefore approximately $1,178,116 in value attributable to Phase I and approximately $520,355 in value attributable to Phase
11. Table 1. Computation of Parkland Dedication
Project Unit Type: Multi-Family Dwelling Mitigation Fee Act Persons / Dwelling Type 2.24
Multi-Family Project Units 503
Residents 1,127
Parkland Dedication Required (acres): R/1,000x2.53 2.8506 acres Fee in Lieu of Parkland Dedication $11 ,595,659
Table 2. Public Parkland Dedications Proposed for Phase I, Service Level Parkland Square Feet Acres Type of Dedication
Proposed
Phase I 4,748 0.1090 Phase I Public Park:
Fee Title
Table 3. Credit for Proposed Private Onsite Park & Recreation (Phase 1) See Exhibits Tables for Individual Element Square Footage Breakdown Square Feet Acres
Private Open Space 27,976 0.6422
Credit at 50% for Private Active Recreation & Equivalent Value. .6422 acres x 50% x $3,669,000 per acre: $1,178,116
EXHIBIT F
PARKLAND IN LIEU FEE PAYMENT SCHEDULE
Phase I $5,591,446 To be paid before issuance of first
residential building permit for each
Phase II $3,825,837 respective Phase.
EXHIBIT G
FORM OF GUARANTY
[Attached]
GUARANTY
This GUARANTY ("Guaranty") is given as of ______ , 2024, by Ensemble Investments LLC, an Arizona limited liability company ("Guarantor"), to the CITY OF SANTA CLARA, a chartered California municipal corporation ("City").
RECITALS
WHEREAS, Tasman East Station Holdco, LLC, a Delaware limited liability company ("Developer") is a wholly-owned subsidiary of Guarantor; WHEREAS, Developer and City entered into a Park Improvement Agreement dated as of [ l, 2024, and recorded in the official records administered by the Recorder of the County of Santa Clara (the "Official Records") as Document No. [ l (as same may be amended from time to time, the "PIA"); WHEREAS, Developer is the owner of approximately 2.62 acres of real property, consisting of two parcels (Assessor's Parcel Nos. 097-46-019 ("Parcel 19") and 097-46- 029 ("Parcel 29")), located at the northeastern corner of Calle del Sol and Tasman Drive in the City of Santa Clara, State of California (the "Property"). The Property is located within the boundaries of the Tasman East Specific Plan Area.
WHEREAS, Developer intends to develop: (1) Parcel 19 with a new residential development consisting of 311 dwelling units, 15,870 sq. ft. of retail space, parking, and other associated improvements (the "Parcel 19 Project") and (2) Parcel 29 with a new residential development consisting of 192 dwelling units, 8,000 sq. ft. of retail space, parking, and other associated improvements (the "Parcel 29 Project"; and together with the Parcel 19 Project, the "Project"). City approved Architectural Review (PLN2018- 13442) for the Project in July of 2019.
WHEREAS, Santa Clara City Code ("SCCC") Chapter 17.35 requires new residential development to dedicate adequate park and recreational land or pay a fee inlieu of parkland dedication for the purpose of developing new or rehabilitating existing parks and recreational facilities (the "Parkland Requirements"). The development of the Project, which will occur in phases as described below, is subject to the Parkland Requirements.
WHEREAS, Developer proposes to submit the Project uniformly under the Mitigation Fee Act provisions of SCCC Chapter 17.35. The Project will generate an estimated 1,127 Residents (2.24 persons/household x 503 units). Based on the Mitigation Fee Act Dedication Standard of 2.53 acres of parkland per 1,000 residents, the amount of public parkland required for this Project to mitigate the impact of the total new resident demand is 2.8506 acres. The equivalent fee in-lieu of parkland dedication is anticipated to be $11,595,659 before accounting for credits. The new resident demand associated with the Parcel 19 Project is 697 new residents, which equates to a parkland dedication requirement of 1.7625 acres or an in-lieu fee of approximately $7,169,483. The new resident demand associated with the Parcel 29 Project is 430 residents, which equates to a parkland dedication of 1.0879 acres or an in-lieu fee of approximately $4,426,176.
WHEREAS, Developer is eligible to receive partial credit against the Parkland Requirements for the Project by developing eligible on-site private open space and recreational amenities devoted to active residential uses ("Private Amenities") as shown on Exhibit C of the PIA. Private Amenities constructed with the Parcel 19 Project shall be credited against the Parkland Requirements for the Parcel 19 Project. If building permits for the Parcel 29 Project are not issued within eight (8) years of building permit issuance for the Parcel 19 Project, Developer shall return the credited amount to the City (the "Guaranteed Obligation"), as described herein.
WHEREAS, Developer's Guaranteed Obligation is being guaranteed by Guarantor as set forth in this Guaranty; and
WHEREAS, Guarantor will directly or indirectly benefit from the Developer's interest in the PIA and deems it to be in Guarantor's best interest to provide this Guaranty to City; and
WHEREAS, Guarantor is willing to guarantee the Guaranteed Obligation under the terms set forth below.
NOW THEREFORE, in consideration of City's entry into the PIA (which Guarantor acknowledges constitutes adequate consideration for its obligations hereunder), Guarantor, intending to be legally bound, agrees as follows:
1. Obligations of Guarantor. Guarantor unconditionally and irrevocably guarantees to City the due and punctual payment (and not merely the collectability) and performance, as applicable, of the Guaranteed Obligation as and when the same shall become due and/or payable, on the terms provided in this Guaranty. In addition, Guarantor shall pay, and upon City request shall reimburse City promptly for, all reasonable out-of-pocket costs and expenses actually and reasonably incurred by City to enforce City's rights, powers or remedies under this Guaranty (including, without limitation, reasonable collection charges and Attorneys' Fees and Costs (as defined below)) (together with any late payment interest on amounts due as set forth below). With respect to Guaranteed Obligation, any amount due and payable by Guarantor under this Guaranty but not paid within forty-five (45) days after receipt of City's written demand therefor shall be accompanied by interest on such amounts at the higher of ten percent (10%) per annum or the maximum amount permitted by law, calculated from the date of Guarantor's receipt of City's written demand therefor through and including the date of payment of such amounts (calculated on the basis of a 365-day year and for the actual number of days elapsed).
2. Amount. The Guaranteed Obligation shall equal the sum of $1, 178, 116, which amount the City and Guarantor agree to be sufficient to pay for 100% of the costs to reimburse the City for the credit for Private Amenities constructed with the Parcel 19 Project.
3. Duration. This Guaranty shall continue in full force and effect until the earlier to occur of (a) building permit issuance for the Building 29 Project or (b) the Guaranteed Obligation is fully satisfied. City shall not be bound or obligated to exhaust its recourse against the Developer or other persons or, except as specifically provided in this Guaranty, to take any other action before being entitled to demand performance by Guarantor hereunder. This Guaranty shall continue to be effective even in the event of the insolvency, bankruptcy or reorganization of Developer. This Guaranty will also survive and be binding upon Guarantor following any merger, reorganization, consolidation or other change in Guarantor's structure, personnel, business or affairs.
4. Remedies of City. The rights and remedies of City under this Guaranty are cumulative and concurrent and shall not be exclusive of any other rights or remedies that City may have against Developer, Guarantor or any other person. No setoff, counterclaim, reduction or diminution of an obligation or any defense of any kind or nature that Guarantor has or may have against the Developer or City shall affect, modify or impair the obligations of Guarantor under this Guaranty.
5. Waivers. Guarantor hereby waives: (a) notice of acceptance of this Guaranty; (b) demand of payment, notice of nonperformance, notice of dishonor, presentation, protest, and indulgences and (except as specifically provided in this Guaranty) notices of any kind whatsoever; (c) any right to require City to proceed against the Developer or any other person or entity liable to City; (e) any right to require City to pursue or enforce any remedy that City now has or may later have against the Developer or any other person or entity; (f) any right to participate in any security now or later held by City; and (h) any defense that may arise by the reason of: (1) the incapacity, lack of authority, death, disability or other defense of the Developer or any other person or entity (other than satisfaction of the applicable Guaranteed Obligation or the applicable Guaranteed Obligation is not then due); (2) the revocation or repudiation of this Guaranty by Guarantor; (3) failure of City to file or enforce a claim against the estate (either in administration, bankruptcy or any other proceeding) of the Developer or any others; (4) any election by City in any proceeding instituted under the United States Bankruptcy Code, as amended (11 U.S.C. §§ 101, et seq.); (5) any borrowing or granting of a security interest under section 364 of the United States Bankruptcy Code; (6) City's election of any remedy against Guarantor, the Developer or any other party to the extent permitted hereunder, as applicable; or (7) any offset by Guarantor against any obligation now or later owed to Guarantor by the Developer or any other person, it being the intention of this Guaranty that Guarantor remain liable to the full extent set forth in this Guaranty until the full performance of the Guaranteed Obligation.
6. Further Assurances. Guarantor agrees to do all such things and execute all such documents as City may consider necessary or desirable to give full effect to this Guaranty and to perfect and preserve the rights and powers of City hereunder; provided, however, that the same shall not increase Guarantor's obligations or liabilities, or decrease Guarantor's rights. Guarantor acknowledges and confirms that Guarantor itself has established its own adequate means of obtaining from the Developer on a continuing basis all information desired by Guarantor concerning the financial condition of the Developer and that Guarantor will look to the Developer to keep adequately informed of its financial condition.
7. Independent Obligations; Continuing Guaranty. This Guaranty is a primary and original payment and performance obligation of Guarantor and is absolute, unconditional, continuing and irrevocable. No member, officer, partner, shareholder, director, board member, agent, or employee of Guarantor will be personally liable to City, and City will have no recourse against any of the foregoing, in the event of a default by Guarantor or for any amount which may become due to City or on any obligations under the terms of this Guaranty or any claim based upon this Guaranty.
8. Effect of Bankruptcy. In the event that, pursuant to any insolvency, bankruptcy, reorganization, receivership or other debtor relief law or any judgment, order or decision thereunder, City must rescind or restore any payment, or any part thereof, received by City, any prior release or discharge from the terms of this Guaranty shall be without effect, and this Guaranty will remain in effect as if the payment had not been made to City.
9. Assignment. This Guaranty is for the benefit of City and its successors and assigns, and is binding upon Guarantor. Subject to the terms of Section 21 of this Guaranty, Guarantor may not assign or transfer any of its obligations under this Guaranty, whether by operation of law or otherwise, without the prior written consent of City in its sole discretion.
10. Representations and Warranties. Guarantor represents and warrants to City that (a) the execution, delivery and performance of this Guaranty by Guarantor have been duly authorized by all requisite action of Guarantor and do not require the consent of any governmental agency or other third party which has not been obtained, (b) this Guaranty has been duly executed and delivered to City, (c) Guarantor is subject to civil and commercial law with respect to its obligations under this Guaranty and enjoys no immunity, sovereign or otherwise, from any suit or proceeding, the jurisdiction of any court, recoupment, setoff or legal process (and hereby waives any defense of immunity to the extent available to Guarantor), (d) no taxes are imposed by virtue of Guarantor's execution or delivery of this Guaranty other than any payable by Guarantor and which have already been paid, and (e) this Guaranty is a legal and binding obligation of Guarantor and is enforceable in accordance with its terms, except as limited by general principles of equity and bankruptcy, insolvency or other laws of general application relating to the enforcement of creditors' rights. 11 . Payments. All payments by Guarantor under this Guaranty shall be made (a) in U.S. dollars to such account in the United States as City may from time to time designate to Guarantor and (b) free and clear of, and without deduction or withholding for or on account of any present or future income, stamp or other taxes or levies, imposts, duties, charges, fees, deductions or withholdings now or hereafter imposed, levied, collected, withheld or assessed by an governmental authority (collectively "Taxes"). If any Taxes are required to be withheld from any amounts payable by Guarantor under this Guaranty, the amounts payable shall be increased to the extent necessary to provide the full amount (after payment of all Taxes) owing by Guarantor under this Guaranty.
12. Subrogation. If Guarantor makes any payment to City as a part of the Guaranteed Obligation pursuant to this Guaranty, then Guarantor shall be subrogated to the rights of City against the Developer or others with respect to such paid Guaranteed Obligation, and City agrees to take such steps as Guarantor may reasonably request to implement such subrogation (provided that City shall not incur any liabilities in taking any such steps).
13. Governing Law. This Guaranty shall be construed in accordance with and governed by the 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.
14. Consents.
(a) Guarantor irrevocably and unconditionally submits to the exclusive jurisdiction of any California state or federal court sitting in the County Of Santa Clara, California, in the United States of America in any action or proceeding arising out of or relating to this Guaranty. Guarantor waives any objection to venue in the County of Santa Clara, California and any objection to any action or proceeding on the basis of forum non conveniens. Final judgment against Guarantor in any such action or proceeding shall be conclusive and may be enforced in any other jurisdiction. (b) Guarantor acknowledges and agrees that City, by action or inaction, in its sole and absolute discretion and without notice to Guarantor, may refuse or fail to enforce all or any portion of City's rights, powers or remedies under this Guaranty or any related documents without releasing, discharging, impairing, or otherwise affecting any obligations of Guarantor under this Guaranty or the validity or enforceability of this Guaranty. Further, Guarantor acknowledges and agrees that City, in its sole and absolute discretion and without notice to Guarantor may additionally: (a) compromise, settle, extend the time for payment or performance of all or any part of the Guaranteed Obligation; and (b) deal in all respects with Guarantor as if this Guaranty were not in effect. It is the intent of the Guarantor that Guarantor shall remain liable for the payment and performance of the Guaranteed Obligation and all other obligations guaranteed hereby to the extent set forth herein, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety other than payment or performance of the applicable Guaranteed Obligation.
15. Severability. If any term, provision, covenant, or condition of this Guaranty is held by a court of competent jurisdiction to be invalid, void or unenforceable, it shall in no way affect, impair or invalidate any other provisions hereof, and the other provisions shall remain in full force and effect.
16. Attorneys' Fees and Costs. In the event of litigation between the Parties, or if a Party becomes involved in litigation because of the wrongful acts of the other Party, the Parties shall each pay their respective attorney's fees, expert witness costs and cost of suit.
17. Notices. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") pursuant to this Guaranty shall be in writing and delivered in person, by commercial courier or by first-class certified mail, postage prepaid. Notices shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage prepaid, or (c) sent by receipted overnight courier, postage prepaid, in each case addressed to the applicable recipient as follows:
If to City:
City of Santa Clara
Attn: Director of Parks & Recreation
1500 Warburton Avenue
Santa Clara, California 95050
Or by facsimile at (408).260-9719
If to Guarantor:
Ensemble Investments LLC
c/o Ensemble Real Estate Investments
4722 North 24th Street, Ste. 400
Phoenix, Arizona 85016
Attention: Rob Gomez
Copy to:
Coblentz Patch Duffy & Bass LLP
1 Montgomery Street, Suite 3000
San Francisco, CA 94104
Attention: Frank Petrilli
Either Party may change its address for purposes of this Section by giving written notice to the other Party. All notices shall be deemed given and received, if served personally, when actually received and receipt is acknowledged in writing, upon delivery if delivered by commercial courier, or two (2) days after mailing if sent by United States Postal Service. If delivery of a notice is refused between the hours of 9:00 A.M. and 5:00 P.M. on a business day, or fails because of a changed address of which no notice was given, then such notice shall be deemed given and received, if mailed or sent by courier, at the time delivery was first attempted, as shown by postal or courier receipt.
18. Entire Agreement. This Guaranty shall be the final expression of the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous oral or written agreements or understandings. This Guaranty shall constitute the complete and exclusive statement of its terms. Other than the PIA, no extrinsic evidence (including, without limitation, prior drafts or changes therefrom) may be introduced in any judicial, administrative or other legal proceeding involving this Guaranty.
19. Construction of Guaranty. This Guaranty and each of the provisions herein, has been reached as a result of negotiations between the Parties and their respective attorneys. This Guaranty shall not be deemed to have been prepared by, or drafted by, any particular Party or Parties hereto, and the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting Party or Parties shall not be employed in the interpretation of this Guaranty. The language in this Guaranty in all cases shall be construed as a whole and in accordance with its fair meaning.
20. 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; and, the Parties agree that the signatures on this Agreement, including those transmitted by facsimile, shall be sufficient to bind the Parties. [Remainder of Page Intentionally Left Blank; Signatures Follow] IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as of the date shown above.
GUARANTOR:
Ensemble Investments, LLC,
an Arizona limited liability company, its Manager
~ ame: Michae Moskowitz
Title: Manager
ACCEPTED:
CITY OF SANT A CLARA, CALIFORNIA
a chartered California municipal corporation
APPROVED AS TO FORM:
GLEN R. GOOGINS
City Attorney
JOVAN D. GROGAN
City Manager
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
RECORD WITHOUT FEE
PURSUANT TO GOV'T CODE SECTION 6103
Recording Requested by:
Office of the City Attorney
City of Santa Clara, California
When Recorded, Mail to:
Office of the City Clerk
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Form per Gov't Code Section 27361 .6 [SPACE ABOVE THIS LINE FOR RECORDER'S USE] The undersigned declares that this document is recorded at the request of and for the benefit of the City of Santa Clara and therefore is exempt from the payment of the recording fee pursuant to Government Code §§6103 and 27383 and from the payment of the Documentary Transfer Tax pursuant to Revenue and Taxation Code §11922.
PARK MAINTENANCE AGREEMENT
BY AND BETWEEN
THE CITY OF SANTA CLARA, CALIFORNIA
AND
TASMAN EAST STATION HOLDCO, LLC
This Park Maintenance Agreement ("Agreement') is entered into this 28th day of August, 2024 ("Effective Date"), by and between the CITY OF SANTA CLARA, CALIFORNIA, a chartered California municipal corporation ("City") and TASMAN EAST STATION HOLDCO, LLC, a Delaware limited liability company ("Project Owner'). City and Project Owner may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement."
RECITALS
City and Project Owner enter into this Agreement on the basis of the following facts, understandings and intentions, and the following recitals are substantive part of this Agreement:
A. Project Owner is the fee title owner of approximately 2.62 acres of real property, consisting of two parcels (Assessor's Parcel Nos. 097-46-019 ("Parcel 19") and 097-46-029 ("Parcel 29"), and together with Parcel 19, the "Project Site"), located at the northeastern corner of Calle del Sol and Tasman Drive in the City of Santa Clara, State of California, as more particularly described on Exhibits A-1 and A-2 attached hereto.
B. Project Owner intends to develop: (1) Parcel 19 with a new residential development consisting of 311 dwelling units, 15,870 sq. ft. of retail space, parking, and 18787.001 4893-0035-6884.1 1
other associated improvements (the "Parcel 19 Project') and (2) Parcel 29 with a new residential development consisting of 192 dwelling units, 8,000 sq. ft. of retail space, parking, and other associated improvements (the "Parcel 29 Project'; and together with the Parcel 19 Project, the "Project'). City approved Architectural Review (PLN2018- 13442) for the Project in July of 2019.
C. Pursuant to applicable provisions of the Santa Clara City Code, Project Owner is obligated to improve and thereafter dedicate to City certain lands within the Project Site for public parks (collectively the "Park/ands"). The Parklands are depicted on the site plan in Exhibit 8-1 attached hereto. The official names of one or more of the Parklands will be determined by City in accordance with the City's Council Policy Manual. As used herein, "Parklands" shall mean and refer to the Parklands as depicted on Exhibit 8-1 and Exhibit 8-2 and as more particularly described in the dedication deed or grant thereof by Project Owner to City.
D. Concurrent with this Agreement, the Parties are entering into that certain Park Improvement Agreement, which governs the approval, construction, and acceptance of the Parklands (the "Park Improvement Agreement').
E. Project Owner or Project Owner's successors and assigns are obligated to maintain and repair the Parklands and to enter into a separate agreement with City, for a term of not less than forty years, providing for such maintenance.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants set forth in this Agreement and for such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. Recitals Incorporated. The foregoing recitals are true and correct, and are part of this Agreement for all purposes.
2. Relationship to Park Improvement Agreement. The Parties acknowledge and agree that the design, construction and installation of all improvements and initial landscaping for the Parklands as described in and required by the Park Improvement Agreement and/or any other separate public improvement agreement between City and Project Owner and any and all plans attached thereto or referenced therein or otherwise approved by City in connection therewith (collectively, the "Park/ands Improvements"), the dedication of the Parklands upon completion of the Parklands Improvements, and the payment of any fees due in lieu of parkland dedication, shall be and remain governed exclusively by the provisions of the Park Improvement Agreement and any such other public improvement agreement.
3. Maintenance of Parklands.
(a) Project Owner's Obligation. During the Maintenance Term (as hereinafter defined) and subject to the terms and conditions of this Agreement, Project Owner shall, 18787.001 4893-0035-6884.1 2
at its sole cost and expense, provide labor, supervision, supplies, materials, equipment, and any and all other tools and manpower necessary to maintain and repair the Parklands to a level comparable to the level of maintenance and repairs performed by City within similar public parks located elsewhere within the City and otherwise in accordance with this Agreement (the "Maintenance Services"). In performing the Maintenance Services, Project Owner shall comply with the maintenance specifications set forth in Exhibit C attached hereto. As used herein, "Maintenance Term" shall mean the period of time commencing upon the date of City's acceptance of dedication of the Parklands allocable to each of the Parcel 19 Project and the Parcel 29 Project, respectively, following completion of such Parklands Improvements and continuing in perpetuity or until termination of this Agreement as provided herein.
(b) Right of Entry. At all times during the Maintenance Term, Project Owner and its employees, agents, representatives, contractors, and subcontractors shall have a non-exclusive license, coupled with an interest, and right of entry for pedestrians, vehicles, machinery and equipment into, over, across, and upon the Parklands as is reasonably necessary for access, ingress, egress, and all activities related to the Maintenance Services. In addition, Project Owner shall apply for any necessary encroachment permit from City in accordance with Santa Clara City Code Chapter 12.25 for performance of the Maintenance Services to the extent that performance of the Maintenance Services requires any underground work.
(c) Parklands Operation. The Parties acknowledge and agree that, at all times during the Maintenance Term, the Parklands will be and remain public parks operated, controlled, supervised, and policed (including all emergency response services) solely by City, and open to the public during the hours then set by City ("Park Operating Hours'?, Notwithstanding any provision herein to the contrary, nothing in this Agreement shall create, or be deemed to create, any responsibility or liability on the part of Project Owner, or any of its respective affiliates, successors or assigns, with respect to the operation, control, supervision, or policing of the Parklands. Nothing herein gives Project Owner the right to restrict or to exclude any person or entity from the Parklands during the Maintenance Term. If Project Owner believes that any area of the Parklands needs to be restricted or closed temporarily for public safety purposes to perform the Maintenance Services, Project Owner may, upon not less than two (2) days' prior written notice to City (except in emergency situations), restrict or close such areas of the Parklands for a reasonable amount of time in order to allow the safety issues to be addressed. Project Owner and/or its employees, agents, representatives, contractors, or subcontractors shall not store any equipment, materials, or supplies in, on, or upon the Parklands beyond such time reasonably necessary to perform any particular Maintenance Services for which they are needed, and shall take appropriate measures to secure the same and prevent any public access thereto.
(d) Additional Facilities._During the Maintenance Term, Project Owner shall allow reasonable public access to certain restroom facilities and a drinking water facility (comprising of two drinking fountains, a bottle filler, and a separate fountain for purposes of filling dog bowls, and together with the restrooms, the "Additional Public Facilities") located within the Parcel 19 building, and as shown in Exhibit B-2, during Park Operating 18787.001 4893-0035-6884.1 3
Hours. Project Owner shall be responsible for maintaining the Additional Public Facilities according to the same standards of care and provisions that apply to the Park Improvements as set forth in this Section 3.
(e) Alterations. In performing the Maintenance Services, and except as otherwise subsequently agreed upon in writing by the Parties, Project Owner shall not make, and shall not be obligated to make, any improvements, alterations, additions, or changes to the Parklands or the Parklands Improvements. (f) Periodic Review. During the Maintenance Term, upon City's request and not more frequently than once each calendar quarter, Project Owner's maintenance contractor(s)/facilities manager or other designated representative(s) of Project Owner and City's Director of Parks & Recreation ("Parks Director") or other designated representative(s) of City shall meet at the Parklands to inspect the Parklands and review the status and adequacy of the Maintenance Services provided herein by Project Owner.
4. Independent Contractor. Project Owner, in the performance of this Agreement, is an independent contractor. Project Owner shall maintain complete control over all of its employees, agents, representatives, contractors, and subcontractors in the performance of this Agreement. Neither Project Owner nor any person retained by Project Owner may represent, act, or purport to act as the agent, employee, or representative of City. Neither Project Owner nor City is granted any right or authority to assume or create any obligation on behalf of the other. Project Owner shall be solely responsible for, and will pay, any excise taxes, fees, contributions, or charges applicable to the conduct of its business or which may be levied on its performance of the Maintenance Services hereunder.
5. Compliance with Laws. In the performance of the Maintenance Services, Project Owner shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local governments with jurisdiction, including without limitation, any and all applicable laws specified elsewhere in this Agreement (collectively "Applicable Laws"). Without limiting the generality of the foregoing provision, all persons retained by Project Owner to perform Maintenance Services required under this Agreement shall possess the requisite licenses and necessary permits to perform such Maintenance Services. The Parties acknowledge and agree that neither Project Owner nor any of its contractors or subcontractors will be receiving any payment from City for the Maintenance Services and that there is no requirement for the payment of prevailing wages in connection with the Maintenance Services.
6. Personnel/Identification.
(a) Qualifications. Any and all personnel employed or retained by Project Owner in the performance of any Maintenance Services shall be qualified to perform the duties assigned to them by Project Owner and shall be of good moral character. Project Owner's personnel shall conduct themselves at all times in a courteous and businesslike manner.
18787.001 4893-0035-6884.1 4
(b) Identification. All personnel who perform Maintenance Services will wear clothing or a nametag which bears the name of Project Owner or its contractor or subcontractor. The clothing worn by Project Owner's personnel shall be appropriate for the work assigned and shall give Project Owner's staff a neat and professional appearance. Project Owner's vehicles that park on the Parklands shall have appropriate identification as approved by the Parks Director (i.e., Project Owner's vehicles will not be allowed on the Parklands without the appropriate parking permit displayed on the dashboard).
7. Nondiscrimination. In the performance of this Agreement, Project Owner shall not discriminate, in any way, against any person on the basis 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.
8. Hold Harmless/Indemnification.
(a) To the extent permitted by law, Project Owner agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, employees, volunteers and agents (collectively, "City Parties") 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 to the extent arising from, or alleged to arise in whole or in part from, or in any way connected with the negligence or willful misconduct of Project Owner or its officers, employees agents, representatives, contractors or subcontractors in connection with the performance of the Maintenance Services by Project Owner pursuant to this Agreement - including claims of any kind by Project Owner's employees or persons contracting with Project Owner to perform any portion of the construction of the Parklands Improvements. However, the Project Owner's obligation to indemnify shall not apply to the proportionate extent such Maintenance Services liability is ultimately determined, agreed or adjudicated to have arisen in whole or in part from the negligence or willful misconduct of City or the City Parties; the obligation to defend is not similarly limited.
(b) Project Owner'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 Project Owner, against City (either alone, or jointly with Project Owner), regardless of venue/jurisdiction in which the claim is brought and the manner of relief sought.
(c) To the extent Project Owner 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, Project Owner 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. 18787.001 4893-0035-6884.1 5
(d) City shall defend, indemnify and hold Project Owner, and its officers, directors, shareholders, members, managers, agents, and employees harmless from and against any and all Losses to the extent caused by the use of the Parklands Improvements or the Additional Public Facilities by members of the public; provided, however, the indemnity obligations of City under this paragraph shall not apply to the extent of any injury, damage or loss that results from the breach of Project Owner's obligations to maintain or repair the Parklands Improvements in accordance with this Agreement prior to City acceptance.
9. Insurance Requirements. During the term of this Agreement, and for any time period set forth in Exhibit D, Project Owner (or its contractors or subcontractors performing the Maintenance Services) shall provide and maintain in full force and effect, at no cost to City, insurance policies as set forth in Exhibit D, entitled "Insurance Requirements."
10. Force Majeure.
(a) Defined. As used herein, "Force Majeure Event' shall mean any matter or condition beyond the reasonable control of a Party, including war, public emergency or calamity, fire, earthquake, extraordinary inclement weather, Acts of God, strikes, labor disturbances or actions, civil disturbances or riots, litigation brought by third parties against either City or Project Owner or both, any failure by the other Party to comply with its obligations hereunder, or any governmental order or law (including any order or law of City) which causes an interruption in the performance of this Agreement or prevents timely delivery of materials or supplies.
(b) Excuse from Performance. Should a Force Majeure Event prevent performance of this Agreement, in whole or in part, the Party affected by the Force Majeure Event may suspend performance to the extent commensurate with the Force Majeure Event; provided that the Party availing itself of this Section shall notify the other Party within ten (10) days of the affected Party's knowledge of the commencement of the Force Majeure Event; and provided further that the time of suspension or excuse shall not extend beyond that reasonably necessitated by the Force Majeure Event. (c) Exclusions. Notwithstanding the foregoing, the following shall not excuse or suspend performance under this Agreement:
1. Performance under this Agreement shall not be suspended or excused for any matter or condition that does not constitute a Force Majeure Event as defined in Section 1 0(a).
2. Negligence or failure of Project Owner to perform its obligations under this Agreement shall not constitute a Force Majeure Event.
3. The inability of Project Owner for any reason to have access to funds necessary to carry out its obligations under this Agreement or the termination of any contract by any contractor or subcontractor or for Project 18787.001 4893-0035-6884.1 6
Owner's default under such contract shall not constitute a Force Majeure Event.
11. Assignment. Subject to the provisions of this Section, Project Owner may not assign any rights, duties, or obligations under this Agreement without the prior written consent of City, which shall not be unreasonably withheld, conditioned or delayed; provided, however, that the City acknowledges and agrees that the Project Owner is authorized to hire, and to delegate to, appropriately qualified contractors and/or subcontractors to perform the Maintenance Services under this Agreement. The assignment of Project Owner's rights, duties and obligations hereunder to any of the following entities or persons shall not require approval of City and shall automatically result in the release of the assigning Project Owner from its obligations hereunder: (i) any entity that is an affiliate of Project Owner; (ii) any other party comprising Project Owner; (iii) any entity or person that acquires or leases all or substantially all of the Project Site; and (iv) any property owners association tasked with responsibility for maintaining open spaces within a defined area that includes the Project Site. As used herein, an "affiliate of Project Owner" means any entity that directly or indirectly controls or is controlled by or under common control with Project Owner (whether through the ownership or control of voting interests, by contract, or otherwise). Any attempt by Project Owner to assign or transfer this Agreement in violation of this Section will be voidable at City's sole discretion.
Any contractor or subcontractor retained by Project Owner to perform and satisfy any terms, conditions or obligations under this Agreement shall receive a copy of this Agreement and be contractually required to comply with this Agreement. Project Owner shall be responsible for all contractors or subcontractors retained by Project Owner, or on its behalf, to perform any Maintenance Services under this Agreement.
12. Proiect Owner's Default and Remedies. If Project Owner fails to perform any of the material terms, conditions, or obligations required to be performed by Project Owner under this Agreement, and such failure continues uncured for a period of thirty (30) days following Project Owner's receipt of written notice from City specifying Project Owner's breach (or such longer cure period in those instances where the specified breach cannot reasonably be cured within such 30-day period, provided Project Owner commences to cure the specified breach within such 30-day period and thereafter diligently pursues such cure to completion), Project Owner shall be deemed to be in default under this Agreement (a "Project Owner's Default'). In the event of a Project Owner's Default, City, as its sole and exclusive remedy, may either (a) take all reasonable steps to cure such Project Owner's Default and recover damages from Project Owner for the direct costs and expenses incurred by City in such cure of Project Owner's Default; or (b) seek specific performance by Project Owner of the cure of such Project Owner's Default.
13. Notices. All notices, demands, consents, requests, approvals, disapprovals, designations or other communications (all of the foregoing hereinafter referred to as "notice") pursuant to this Agreement shall be in writing and delivered in person, by commercial courier or by first-class certified mail, postage prepaid. Notices shall be deemed to have been properly given if (a) served personally, or (b) mailed, when deposited with the United States Postal Service within the boundaries of the continental United States for registered or certified delivery, return receipt requested, with postage 18787.001 4893-0035-6884.1 7
prepaid, or (c) sent by receipted overnight courier, postage prepaid, or (d) sent by email, in each case addressed to the applicable recipient as follows :
To City:
City of Santa Clara
Attn: Director of Parks & Recreation
1500 Warburton Avenue
Santa Clara, California 95050
Or by facsimile at (408) 260-9719
or by email at [email protected]
To Project Owner:
Tasman East Station Holdco, LLC
c/o Ensemble Real Estate Investments
444 W. Ocean Blvd., Suite 650
Long Beach, CA 90802
Attention: Rob Gomez
or by email at [email protected]
The business day 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, or on a holiday, shall be deemed to have been transmitted on the following business day. Any Party may change its address for notices by giving written notice to the other Party in the manner set forth above.
14. Estoppel Certificate. Project Owner may, at any time and from time to time, or in connection with the sale or transfer of the Project Site or any part thereof, or in connection with the leasing or financing or refinancing of the Project Site or any part thereof, deliver written notice to the City, requesting City to certify in writing to Project Owner or the prospective or current mortgagee, or prospective lessee or purchaser of the Project Site or any part thereof, that to the knowledge of the City (i) Project Owner is not in default in the performance of any of its obligations owed to the City hereunder, or, if in default, to describe therein the nature of any and all defaults, (ii) whether this Agreement has been modified, amended or assigned in any way by the City (and if it has, then stating the nature thereof}, (iii) this Agreement as of that date is in full force and effect, and (iv) such other information as the Project Owner may reasonably request. City shall execute and return such certificate within fifteen (15) days following the receipt thereof.
15. General Provisions.
(a) Entire Agreement. This Agreement, including all Exhibits attached thereto, constitutes the entire understanding of the Parties as to those matters contained herein.
No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. The Parties acknowledge and agree that this Agreement satisfies in full any and all obligations of Project Owner under the Park Improvement 18787.001 4893-0035-6884.1 8
Agreement and Applicable Laws with respect to maintenance and repairs of the Parklands and the Parklands Improvements.
(b) Amendment. The provisions of this Agreement may be altered, amended, or repealed, in whole or in part, only by the mutual agreement of the Parties in writing. (c) Waiver. No waiver of any provision of this Agreement shall be binding unless executed in writing by the Party making the waiver. No waiver of any provision of this Agreement shall be deemed to constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver unless the written waiver so specifies.
(d) Construction. Section headings in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of any provision of this Agreement. As used herein: (i) the singular shall include the plural (and vice versa) and the masculine or neuter gender shall include the feminine gender (and vice versa) where the context so requires; (ii) locative adverbs such as "herein," "hereto," and "hereunder" shall refer to this Agreement in its entirety and not to any specific Section or paragraph; (iii) the terms "include," "including," and similar terms shall be construed as though followed immediately by the phrase "but not limited to;" and (iv) "shall," "will" and "must" are mandatory and "may" is permissive. The Parties have jointly participated in the negotiation and drafting of this Agreement, and this Agreement shall be construed fairly and equally as to the parties, without regard to any rules of construction relating to the Party who drafted a particular provision of this Agreement. (e) Severability. If any term or provision of this Agreement is ever determined to be invalid or unenforceable for any reason, such term or provision shall be severed from this Agreement without affecting the validity or enforceability of the remainder of this Agreement.
(f) Actions by City. Where this Agreement requires or permits City to act and no officer of the City is specified, the City Manager or the designated representative of the City Manager has the authority to act on City's behalf. (g) Binding Nature. Subject to the provisions of Section 11 and this Section, this Agreement binds and inures to the benefit of the Parties and their respective successors, assigns and legal representatives. Upon the request of either Party, the Parties shall execute and record in the Official Records of Santa Clara County a mutually acceptable memorandum of this Agreement with respect to those portions of the Project Site owned by each Project Owner then bound by this Agreement. (h) Governing Law. This Agreement shall be construed in accordance with and governed by the 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. (i) 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 18787.001 4893-0035-6884.1 9
same instrument; and, the Parties agree that the signatures on this Agreement, including those transmitted by facsimile, shall be sufficient to bind the Parties. [REST OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES ON FOLLOWING PAGE]
18787.001 4893-0035-6884.1 10
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:
Approved as to Form: Dated:
--- ----- ----
Glen Googins
City Attorney
City Manager
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
"CITY"
Dated: August 28, 2024
Tasman East Station Holdco, LLC,
a Delaware limited liability company
By: Ensemble Investments, LLC,
an Arizona limited liability company, its Manager
a : ambiz Babaoff
itle: Manager
Business Address: 444 W. Ocean Blvd., Suite 60
Long Beach CA 90802
Email Address:
Telephone:
rgomez@ensem ble. net
(562) 435-0659
"PROJECT OWNER"
18787.001 4893-0035-6884.1 11
CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT
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 Los Angeles
On September 3, 2024 before me, Sharon K Easter , Notary Public, (Here insert name and title of the officer)
personally appeared _K_a_m_b_i_z_B_a_b_a_o_ff __________________________ _. who proved to me on the basis of satisfactory evidence to be the person¢) whose name(~ is/~ e subscribed to the within instrument and acknowledged to me that he/sj(e/tbfY executed the same in his/h.¢'r/tltir authorized capacity(~ , and that by his/h¢ /thJir signature($} on the instrument the person(sl, or the entity upon behalf of which the person(,81 acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
~/.~
Signature ofNotary Public (Notary Seal)
........ i
SHARON K. FOSTER
Notary Publk · California z
Los Angeles County !
Commission:, 2363 61
y Comm. Expires Jun 30, 2025
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMEN:f
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages __ Document Date - ----
(Additional information)
CAP A CITY CLAIMED BY THE SIGNER
D Individual (s)
D Corporate Officer
(Title)
D Partner(s)
D Attorney-in-Fact
D Trustee( s)
D Other ----------------
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Any acknou,ledgmem completed in California must comaln verbiage exactly as appears above in the notary section or a separate acknow'ledgment form must be properly completed and al/ached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acl01owledgme111 verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that Is I/legal for a notary In Califomia {I.e. certifying the authori::ed capacity of the signer). Please check the doc11111e111 carefully for proper 1101arial wording and attach this f orm if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/they, is /f!fe) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible.
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❖ Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. ❖ Indicate title or type of attached document, number of pages and date. ❖ Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document
C 2004-2015 Prolink Signing Service, Inc, - All Rights Reserved www.TheProLink,com - Nationwide Notary Service Exhibit A-1
to
Park Maintenance Agreement
Legal Description of Parcel 19
EXHIBIT 4,
LEGAL 0ES_CRIPTION
THE LAND REFERRED TO HEREIN BELOW JS S TED IN THE CITY 0,.. SANTA CIARA. I HE COUNTY OF SANTA CLARA, STATE OF C · FOR IA. AND IS DESCRIBED ~S FOtLOWS:
Parcel 22, as shown upo that cenain M~ ~nHtted. P'aroel ~ap being a portion ot the UUsl.ao Rancho•. •ihich Map as fifed for racorQ n Ifie· O~ ot ttie Recorcer"O e County of Santa Ciara Sfata or Calrforna, on Fe~ary 27, i97S. In Book 368 of Maps at Pages 14 and 15.
APN: og7-46-01D
018787.0001 4860-5827-1076.4 12
Exhibit A-2
to
Park Maintenance Agreement
Legal Description of Parcel 29
THE LAND REFERRED TO HERB saow IS SlllJATED IN ntE CITY OF SA T. CLARA. IN THE CQUNlY OF SANTA Cl.A.~, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOUOWS:
Parcel One:
Parcef 1, as sho,m on tha certain Parcel Map filed for racoi:cl'in the Office or the Recorder of1he County of Sa a Clara, Stare of Galitbm.fa on December 16, 1996 · Book 684 o Maps at Pages 45 and 46, Excepting therefrom that portion of said ano conveyecJ:'to 1fle Sama Olara coun_ty Transit Oism ln at certain Grant Deed recorded December 06, 1999 a~ nstrumen No. 15079054, and more partfC1Ularty described as follows:
AD oftha eertaifl property situated in the etty ofS·anra Cfara, County of 5ania Clara. State of catifomia, and bl:!ing a pertion of Parcel 1, as sa1d Parcel 1 is snown o cenam P~~ , Map fited In Book 684 of Maps at Pages 45-46, records of Santa C(ara Ceunty, California ar.d more paflfetJJarty aescribed as foltows'.
Begimmg attt!e southeasterlY comer ofPan:el 1, sai<l point also beingon i.he nontierty Iine-ofTasman Drive as said Parcel and Drive are shown on said Parcel MaP. ence southwesterly along the southel'ty ne of sald Parcel (northerly line .of Tasman Drtve) e foO · g two f2) cescr:lbed courses: 1) from a ta. gellt beartng of sooth 53• 22' 16" West along a cuive q>ncave noithwesterly with a radius of 2951.84 feet through a central angle of 2· 2Z ti- a ct an~rc lengtn of 122.1 feet to the-beginning o a comi)i;)Und curve concave nort er1y Wtth a radius of 4Q00 ee , 2) esterly ong the last sa C1 curve (w tn rad.iUS 40.00 feet) thro1,1g.h a car. I amile of 75• ©' 54 and an arc ngih Of53. 18 fee to a pofnt of cusp · acUFVe-concave northeny wfth a radius or 37.0 feet; thence· teaviag_ said souther1y line of Parcel 1 northerly rime or asman arive) from a 1an~t bearing of So so· ·sr 32." Eastalotig elastsaid-ourve .wfthradl 37.00-feeal ttmmg acentr a gleof62 .. 56'16"'andan rclengthof
40.64 fee thence So 23• 53' 48" East 3.00 fee thence orth w 06' 12 East 127.93 feet o ttle nortfleasteny Une of said Paltel t tnance sou eastet'IY aTong said oortheasterty ine of Parcel 1; thence southeasterly a ~ sai northeasterty ine of Parcel 1 South 27" 00' 29" East l. 7 4 fee to tha point of beginning.
By Deed recordea December 21. 20 o as Instrument No. 210 86, the-Santa C ara Valley TransportationAuthority a public age111cy, .assigned and conveyed their interest to !he City of santa Iara, a chartered n,1.micipal corporatlo Of the state o CaUfomfa.
Par:cel T o~
An easemen for Private fogr-ess,.Egress n eet wfde over Parcel 2 ror e benefit of Parcel 1, as shown on the Map filed Oecem~r 16, 1996 In Book 684 d Maps at Pages 45 and 46.
Parcel
An easement for Emergency Velilrcle lngress-Egress 13 fee wide over Parcel 2 -ror the benefit or Parcel 1, as shown on the Map filed December 16, 1996 In Book 684 of Maps at Pages 45 and 46.
APN: [email protected]
13 0
Exhibit B-1
to
Park Maintenance Agreement
Diagram of Parklands
- I
14 --- '!IIII_C... ____ ,_ __ .. ~_.,
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~-~---------·~ ... ,- - ___________ ... __ ,,.,..
----------~--- _______
_...,. __ ....,. _______ __ , ___ .. ___, __ _
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r.f ..... /WOtlt ,\f.lit.,
,_....., .RIC ' ' ' ' ~·
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. i;::-
: r =
UJi
r
if
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Tasman Statio·n Pm~. P:%a6° P,:w
i.11,::. r...-:r::i -:._ ... ,.. - • 0''1 ":! l 4lr.J . .?Cr 15 Exhibit B-2
to
Park Maintenance Agreement
Additional Public Facilities - Diagram of Restrooms and Drinking Water Facility =-
LZ.1
Tasm.an Station P.·uk Plan .... i>-,,o. 01.21.2020
16 Exhibit C
to
Park Maintenance Agreement
Landscape Maintenance Specifications and Requirements for City of Santa Clara Parks
Turf Care
1. Mowing to be performed at a uniform height in alternating patterns on a weekly basis. Mulching mowers are allowed. Turf to be clean of debris upon completion.
2. Edging along sidewalks and curbs with power edger, weekly.
3. A 6" - 12" buffer zone to be maintained around all obstacles including buildings, fencing, light fixtures, signs, trees, etc., weekly.
4. Mechanical aeration to be performed two times per year.
5. Overseeding of turf, weekly due to pet damage.
6. Annual fall overseeding included as part of the overall maintenance program.
7. Fertilize turf 4x per year, not to exceed 6Ib of Nitrogen per 1000 sq.ft annually.
8. Spray broadleaf weeds quarterly.
Ground Cover, Shrubs And Vine Care
1. Pruning shall be performed to maintain neat, clean and well defined appearance within all general boundaries including sidewalks and structures.
2. A 6" - 12" buffer zone to be maintained around all obstacles including buildings, fencing, light fixtures, signs, trees, etc.
3. Fertilize 3x per year.
4. Mulch all bare planter areas quarterly with approved Recology arbor mulch.
Tree Care
1. Pruning shall be performed to develop trunk caliper and scaffolding branches and includes the removal of dead and damaged branches, which can be reached from the ground with an extension pole pruner.
2. Prune for 8' clearance over walkways and 15' over parking areas and streets.
3. Labor and materials for tree staking, ties and guying requirements are included.
Plant Health
1. Control diseases, pests and weeds mechanically and via product material per approved guidelines and requirements.
2. Apply fertilization product material to provide lush, green and healthy appearance, to maintain all plant material in a state of perpetual growth. After application process, clean up any overspray of product material, immediately.
3. Provide any tests and reports as required once per year, to investigate soil chemistry, disease and insects and other factors to maintain the landscape in a healthy state.
17 Disease, Pest and Weed Control
1. Control all plant material diseases, pests, weeds and rodents mechanically and via approved product material per Department of Pesticide Regulation, County of Santa Clara Agriculture Commissioner and City of Santa Clara Integrated Pest Management guidelines and requirements.
2. Spray or manually remove weeds in all hardscape on a monthly basis.
Irrigation Management
1. Manage controller units for scheduled operation during evening hours. Provide system adjustments, cleaning, modifications and minor repairs to meet plant requirements, resulting in maximizing water usage, while minimizing runoff and overs pray.
2. Provide monthly system inspections. Complete thorough irrigation inspections in February and September and report via Irrigation Tracking Sheets.
3. Repairs per unit pricing rates.
4. Hand watering is included, to maintain plant material in a healthy state, which has inadequate irrigation coverage.
Extra Work
1. Sod replacement and shrub replacement as needed to maintain a full and lush appearance.
2. Plant and irrigation replacements required due to damage by others.
3. In-fill and installation of decomposed granite pathway material.
General
1. Daily: Site review and trash clean up to be performed first thing each morning.
Walkways to be swept or blown for pedestrian access. Equipment commencement after 8:00a.m.
2. Rake and groom decomposed granite pathways weekly.
Graffiti Abatement
Damaged Signs and Park Elements: Within one (1) week of identification In Instances of Objectionable Content: Within twenty-four (24) hours of identification Playground Maintenance/Routine
1. Follow all safety precautions and wear all appropriate personal protective equipment
2. Check overall assessment of equipment.
18 3. Inspect all components to ensure parts are not missing
4. Check equipment for unsafe conditions. No missing guards or rails
5. Check equipment for proper function, make adjustments if needed
6. Check painted surfaces for a consistent painted finish
7. Painted surfaces show a consistent painted finish. Is repainting needed?
8. Ensure equipment anchored and secured correctly
9. Tighten any loose parts that need adjustment
10. Check for any signs of corrosion or rust
11 . Lubricate moving parts as necessary
19 EXHIBIT D
INSURANCE REQUIREMENTS
As used herein, the term "Contractor" shall mean and refer to the party providing the insurance, whether Property Owner or its contractors or subcontracts. Without limiting the Contractor's 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, 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
$1,000,000 general aggregate
$1,000,000 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 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 minimum policy limits of not less than one million dollars ($1,000,000) each accident using, or providing coverage at least as broad 20 as, Insurance Services Office form CA 00 01. Liability coverage shall apply to all owned, non-owned and hired autos.
C. WORKERS' COMPENSATION
1. Workers' Compensation Insurance Policy as required by statute and employer's liability with the following limits: at least one million dollars ($1,000,000) policy limit Illness/Injury by disease, and one million dollars ($1 ,000,000) for each Accident/Bodily Injury.
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.
0. 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. 2.
3. 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 Contractor'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 3710 01, or its equivalent.
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 Contractor's insurance.
Cancellation.
a. Contractor shall provide City with written notice at least ten (10) days prior to the effective date of any cancellation of the coverage provided due to non-payment of premiums. In the event of non21
4. renewal, written notice shall be given at least ten (10) days prior to the effective date of non-renewal.
b. Contractor shall provide City with written notice at least thirty (30) days prior to the effective date of any cancellation of the coverage provided due to any cause save and except non-payment of premiums. In the event of non-renewal, written notice shall be given at least thirty (30) days prior to the effective date of non-renewal.
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 D, above.
E. 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.
F. 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 22 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 City's approval as to adequacy of the insurance protection.
G. EVIDENCE OF COMPLIANCE
Contractor 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, 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 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 Parks & Recreation Department
P.O. Box 100085- S2
Duluth, GA 30096
or
1 Ebix Way
John's Creek, GA 30097
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 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.
23 City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-1056 Agenda Date: 11/12/2024
REPORT TO COUNCIL
SUBJECT
Action on Authorizing the City Manager to Negotiate and Execute Agreement(s) with Vendor(s) for the Purchase of Control Enclosures with Protection and Control Panels and Neutral Grounding Resistors to be Funded by the Electric Utility Capital Fund
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
In November 2019, Silicon Valley Power (SVP) management met to discuss the strategic priorities for SVP and identified that the City of Santa Clara (City) would experience significant electric load growth requiring SVP to develop a capital improvement strategy. Staff determined the need for developing both near-term and long-term strategies to accommodate approved growth and develop the necessary infrastructure plan options.
On October 13, 2020, the City Council authorized the City Manager to execute master service agreements with several engineering consultant firms to support SVP with system expansion, general consulting services, and plan implementation services (RTC # 20-854).
On April 6, 2021, staff presented a comprehensive review of upcoming load growth and capital projects to the City Council as part of the SVP Quarterly Report. The presentation concluded with the next steps, including the preparation of a system growth strategy to be presented at a future City Council meeting.
On September 28, 2021, the City Council accepted SVP’s Three-Year System Growth Plan Strategy (RTC # 21-871). This plan identified $300 million in proposed projects for both near-term and longterm capital improvement projects needed to support anticipated system growth and to replace endof life equipment for system reliability.
On April 5, 2022, the City Council adopted Resolution # 22-9069 adding new and updated connection and load development fees for SVP (RTC # 22-449). Additionally, on April 19, 2022, the City Council adopted Resolution # 22-9081 adopting the City of Santa Clara FY 2022/23 Municipal Fee Schedule, which included new and updated connection fees and load development fees, effective July 1, 2022 (RTC # 22-99). These fees were further updated for fiscal year 2023/24 by the adoption of Resolution 23-9221 on April 18, 2023, and for fiscal year 2024/25 by adoption of Resolution # 24- 9316 on April 23, 2024. Such fees and their corresponding increases are intended to maintain fees at cost recovery levels necessary to support electric load growth.
On November 15, 2022 (RTC # 22-1172), the City Council accepted SVP’s System Expansion Plan City of Santa Clara Page 1 of 5 Printed on 11/8/2024
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24-1056 Agenda Date: 11/12/2024
for the California Independent System Operator’s (CAISO) Transmission Planning Process FY2023/24 (SVP System Expansion Plan CAISO TPP FY2023/24). The purpose of this process is to project SVP’s load growth over the next ten years and apply it to an electric system model to simulate load growth impacts on SVP’s electric system.
On May 9, 2023, the City Council adopted Resolution # 23-9223 regarding the City’s intent to issue tax-exempt electric system bonds for reimbursement of expenditures for certain capital improvement projects for SVP (RTC # 23-104), including load growth projects and associated equipment and material purchases.
On July 18, 2023, staff presented an update on these key near-term projects necessary for system growth to the City Council as part of the SVP Quarterly Report (RTC # 23-757). At the same meeting, the City Council approved amendments to several master service agreements, including increases to cumulative maximum compensation (RTC # 23-737).
As part of SVP’s ongoing efforts to support these City Council actions, system expansion and address load growth, a series of purchases have been made and are in progress to ensure that the necessary equipment and materials are delivered to meet project schedules. Significant purchases have already been authorized by the City Council as follows:
· On October 10, 2023, the City Council authorized the purchase of up to 12 high voltage transformers with a total not-to-exceed amount of $81,392,908 (RTC # 23-122). · On May 7, 2024, the City Council authorized the purchase of up to 78 high voltage circuit breakers with a total not-to-exceed amount of $43,700,000 (RTC # 24-35). · On May 28, 2024, the City Council authorized the purchase of high voltage disconnect switches, station service voltage transformers, voltage transformers and capacitive voltage transformers, and combination revenue metering transformers with a total not-to-exceed amount of $20,100,000 (RTC # 24-453).
This report now seeks authorization for the purchase of Control Enclosures with Protection and Control Panels and Neutral Grounding Resistors to be installed at the following locations:
· Northern Receiving Station (NRS) located on Stars and Stripes Drive. · Kifer Receiving Station (KRS) located on Lafayette Street. · Scott Receiving Station (SRS) located on Space Park Drive.
DISCUSSION
The following two procurements require expedited methods for acquiring critical equipment needed to meet the construction schedules of the expansion projects mentioned above. All procurements have adhered to or will adhere to the City’s purchasing policy, including formal notification through the City’s e-procurement system. The request to obtain City Council approval for these purchases is being made concurrently with the procurement process.
Control Enclosures with Protection and Control (P&C) Panels Pursuant to Section 2.105.140(d) of the Santa Clara City Code (City Code), a formal Request for Bids (RFB) was conducted with the award to be based on the lowest responsive and responsible bidder(s).
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24-1056 Agenda Date: 11/12/2024
On August 19, 2024, the City issued the RFB for Control Enclosures with P&C Panels which was published on the City’s e-procurement system. In addition, the City directly contacted several firms, to inform them of the RFB and directed interested firms to the e-procurement system. A total of 49 companies viewed the RFB, and three bids were received by the September 30, 2024, deadline from the following firms:
1. Avail Enclosure Systems
2. Crown Technical Systems
3. Schweitzer Engineering Laboratories
The bids are currently being evaluated by staff to verify their conformance to the RFB. Staff is seeking authorization for the City Manager to enter into an agreement with the vendor(s) submitting the lowest responsive and responsible bid(s).
Alternatively, staff seeks authorization for the City Manager to issue purchase orders or enter into an agreement with the vendors(s) based on award made pursuant to Section 2.105.200. If all three bids are deemed nonresponsive or non-responsible, the Purchasing Division Manager may reject all bids under Section 2.105.200 and direct staff to negotiate with the bidders and other suppliers in the open market. Section 2.105.200 authorizes this direct negotiation and specifically provides that “if all bids or proposals are rejected, the Purchasing Division Manager or designee may re-notice the solicitation or award without further complying with the provisions of this Chapter [Chapter 2.105 of the City Code] if readvertising is determined to be an idle act.” The description and quantities are listed in Table 1.
Table 1: Control Enclosures with P&C Panels
Description KRS Qty SRS Qty Total
QTY
Control Enclosure (including cable tray, FACP,
Lighting, receptacle, HVAC, Door with
Electrical/Electronic locks, AC/DC battery,
battery charger, battery monitor, Termination
Cabinets, Communication Cabinets and AC/DC
panel)
1 1 2
115 kV P&C Panels 13 9 22
115-60 kV Transformers 5 5 10
60 kV P&C Panels 13 12 25
Communication Panels 4 4 8
RTU and SCADA 2 2 4
Neutral Grounding Resistors
Pursuant to Section 2.105.140(d) of the City Code, an RFB was conducted with the award recommendation to be based on the lowest responsive and responsible bidder.
On September 20, 2024, the City issued a RFB for Neutral Grounding Resistors which was published City of Santa Clara Page 3 of 5 Printed on 11/8/2024
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24-1056 Agenda Date: 11/12/2024
on the City’s e-procurement system. In addition, the City directly contacted several firms to inform them of the RFB and directed interested firms to the e-procurement system. A total of 28 companies viewed the RFB, and 1 bid was received by the November 1, 2024, deadline from the following firm:
1. MegaResistors Corp.
The bid is currently being evaluated by staff to verify its conformance to the RFB. Staff is seeking authorization for the City Manager to enter into an agreement with the vendor(s) submitting the lowest responsive and responsible bid(s).
Alternatively, staff seeks authorization for the City Manager to enter into purchase orders or agreements with the vendors(s) based on award made pursuant to Section 2.105.200. If all bids are deemed nonresponsive or non-responsible, the Purchasing Division Manager may reject all bids under Section 2.105.200 and direct staff to negotiate with the bidders and other suppliers in the open market. Section 2.105.200 authorizes this direct negotiation and specifically provides that “if all bids or proposals are rejected, the Purchasing Division Manager or designee may re-notice the solicitation or award without further complying with the provisions of this Chapter [Chapter 2.105 of the City Code] if readvertising is determined to be an idle act.” The description and quantities are listed in Table 2.
Table 2: Neutral Grounding Resistors
Neutral Grounding Resistors NRS Qty
60kV Neutral Grounding Resistor with Bushings 4
Summary
Subject to compliance with Chapter 2.105 of the City Code, staff is seeking authorization for the City Manager to negotiate and execute agreements and/or purchase orders for: (1) control enclosures with P&C panels, and (2) neutral grounding resistors, up to a total maximum aggregate amount of $13,000,000 inclusive of applicable taxes. The requested authorization is subject to review and approval as to form of all agreements and/or purchase orders by the City Attorney and appropriation of funds.
The majority of the total maximum aggregate amount is designated for the control enclosures with P&C panels, with the remaining funds allocated to the neutral grounding resistors.
Delivery Timeline
Deliveries are expected to take place between December 2025 and July 2026. Payments will be based on the successful completion of key milestones, including a minimum of 10% of the contract value after final acceptance of the varying equipment types.
A five-year warranty period is anticipated to cover parts and labor and will commence upon final acceptance of each unit.
Additional Quantities
As part of the expansion, SVP may need to purchase additional control enclosures and neutral grounding resistors, subject to the maximum compensation limit. If such purchases are necessary, City of Santa Clara Page 4 of 5 Printed on 11/8/2024
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24-1056 Agenda Date: 11/12/2024
they will be made pursuant to Section 2.105.130 of the City Code, which states “at the discretion of the Purchasing Division Manager, additional quantities may be purchased after the initial award of a contract or purchase order for general services or products. If the purchase of additional quantities or services increases the maximum compensation that exceeds the City Manager’s signature authority set forth in this chapter, or an amount previously approved by Council, then Council approval is required.”
ENVIRONMENTAL REVIEW
The actions being considered do not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to section 15378(b)(2) of Title 14 of the California Code of Regulations as the proposed actions solely involve the purchase of equipment for NRS, KRS, and SRS.
FISCAL IMPACT
The amount to be paid to the Vendor(s) under the Agreement(s) is not-to-exceed $13,000,000 for the initial quantity of units noted in Tables 1 and 2 and an additional $1,950,000 for a 15% contingency of the total contract value. Appropriations are available in the Electric Utility Capital Fund for the three receiving station rebuild and replacement projects - SRS, KRS, and NRS. On September 10, 2024, Council approved the issuance of electric revenue bonds which provide funding for the rebuild and replacement projects.
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
1. Subject to compliance with Chapter 2.105 of the City Code, review and approval as to form by the City Attorney, and appropriation of funds, authorize the City Manager or designee to negotiate and execute agreement(s) or purchase order(s) with vendors for Control Enclosures with Protection and Control Panels and Neutral Grounding Resistors listed below for a maximum compensation amount of $14,950,000; and
2. Authorize the City Manager or designee to (a) take any actions as necessary to implement and administer the agreement(s) and/or purchase order(s), and (b) negotiate and execute amendments to the agreement(s) for (i) design changes, (ii) any unanticipated issues, (iii) extensions of the term, or (iv) the purchase of additional Control Enclosures with Protection and Control Panels and Neutral Grounding Resistors, subject to the above maximum compensation limit and 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
City of Santa Clara Page 5 of 5 Printed on 11/8/2024
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City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-1604 Agenda Date: 11/12/2024
REPORT TO COUNCIL
SUBJECT
Action on an Agreement with Real Environmental Products, LLC for Landfill Gas Collection System and Cover Maintenance and Repair Services
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
The Department of Public Works (DPW) is responsible for landfill post-closure maintenance and monitoring at All Purpose Landfill, which closed in 1993. All Purpose Landfill has an extensive Landfill Gas Collection System (LGCS) designed to prevent landfill-generated methane from being released into the atmosphere. The collected landfill gas is transported to the Ameresco power plant, where it is converted to electricity and sold to Silicon Valley Power (SVP).
Due to continuous settling of the landfill that can potentially cause damage, ongoing maintenance and repairs are necessary to ensure the LGCS remains accessible, operational, and in compliance with the regulations from Bay Area Air Quality Management District (BAAQMD), Regional Water Quality Control Board (RWQCB), Department of Resources Recycling and Recovery (CalRecycle), and Santa Clara County Department of Environmental Health regulations.
In October 2019, the municipal golf course that formerly occupied the majority of the landfill surface was closed and the irrigation was turned off. Previously, golf course maintenance staff routinely maintained cart pathways and filled low spots on the golf course to keep it playable for patrons. The amount of drainage/settlement and related LGCS repairs have substantially increased since the golf course has closed. These maintenance responsibilities have been shifted to DPW and are now performed by a contractor.
DISCUSSION
Pursuant to City Code Section 2.105.140(c), the City conducted a formal Request for Proposals (RFP) with the award recommendation based on “best value.” In August 2024, the RFP for landfill gas collection system and cover maintenance and repair services was published on the City’s eProcurement platform. One proposal was received from Real Environmental Products, LLC (REP).
There was limited vendor interest in the RFP, and staff believes that there are only two vendors in Northern California with expertise in the operation and maintenance of landfill gas collection systems.
A potential second bidder, SCS Engineers, notified the Finance Department that they elected not to propose on this work.
REP’s proposal was reviewed for responsiveness and found to be in compliance with the terms and conditions of the RFP requirements. REP has performed landfill gas collection system repair and City of Santa Clara Page 1 of 3 Printed on 11/8/2024
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24-1604 Agenda Date: 11/12/2024
maintenance services at All Purpose Landfill under multiple agreements since 2006 and is very familiar with the site.
The proposed agreement has a maximum compensation of $1,200,000 over a three-year term. The City’s landfill consultant, WSP USA, Inc., will identify any necessary repair work during routine groundwater and air quality monitoring events. Once identified, City staff will request REP to provide a cost proposal for the work, which will then be reviewed by the landfill consultant to ensure that the scope of work properly addresses the specific issues and that the proposed costs are reasonable.
Work will not commence without prior authorization from City staff.
The agreement includes prevailing wage requirements.
ENVIRONMENTAL REVIEW
The action being considered is exempt for the California Environmental Quality Act (“CEQA””) pursuant to CEQA Guidelines section 15301 “Existing Facilities”, as the activity consists of the repair, maintenance or minor alteration of existing facilities involving no negligible expansion of the use beyond that presently existing.
FISCAL IMPACT
The amount to be paid to the contractor for landfill gas collection system and cover repair and maintenance services over the three-year term of this agreement shall not exceed $1,200,000.
Sufficient funding for the first year of this agreement is included in the FY 2024/25 and FY 2025/26 Biennial Capital Improvement Program Budget in the Solid Waste Fund’s Sanitary Landfill Development - Post Closure project. Funding for the outyears of this contract are anticipated to be funded by the Solid Waste Fund. Budget actions to appropriate the funding in the outyears will be brought forward for Council approval separately.
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 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 that the proposed actions are exempt from CEQA pursuant to Section 15301 (Existing Facilities) of Title 14 of California Code of Regulations; and
2. Authorize the City Manager to execute an agreement with Real Environmental Products, LLC for landfill gas collection system and cover maintenance and repair services for a total not-toexceed amount of $1,200,000 over a three-year term, subject to annual appropriations of funds and approval as to form by the City Attorney.
City of Santa Clara Page 2 of 3 Printed on 11/8/2024
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24-1604 Agenda Date: 11/12/2024
Reviewed by: Craig Mobeck, Director of Public Works
Approved by: Jovan D. Grogan, City Manager
ATTACHMENTS
1. Agreement
City of Santa Clara Page 3 of 3 Printed on 11/8/2024
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EBIX Insurance No. S200001349
AGREEMENT FOR SERVICES
BETWEEN THE
CITY OF SANTA CLARA, CALIFORNIA,
AND
REAL ENVIRONMENTAL PRODUCTS, LLC
PREAMBLE
This Agreement is entered into between the City of Santa Clara, California, a chartered California municipal corporation (City) and Real Environmental Products, LLC, a California Limited Liability 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
Exhibit D – Labor Compliance Addendum (if applicable)
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, Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 1 of 28 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 January 1, 2025 and terminate on December 31, 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 one-million-two hundred thousand dollars ($1,200,000) 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 Contractor’s Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 2 of 28 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 covenants 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 Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 3 of 28 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 Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 4 of 28 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”) and/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.
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.
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 5 of 28
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: Public Works
1500 Warburton Avenue
Santa Clara, CA 95050
and by e-mail at [email protected]
And to Contractor addressed as follows:
Real Environmental Products, LLC Attention:
Rodney C. Peoples
1510 State Hwy 49
Jackson CA*95642 Address of Contractor
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 Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 6 of 28 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.
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 7 of 28
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.
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
City of Santa Clara
1500 Warburton Avenue
Santa Clara, CA 95050
Telephone: (408) 615-2210
Fax: (408) 241-6771
“CITY”
Real Environmental Products, LLC a California Limited Liability Corporation Dated:
By (Signature):
Name:
Title:
Principal Place of
Business Address:
Email Address:
Telephone: (209)
Fax: ( )
“CONTRACTOR”
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 8 of 28 296.7900
Rodney Peoples
1510 S Hwy 49 Jackson,CA 95642
Managing Member
10-11-24
[email protected]
EXHIBIT A
SCOPE OF SERVICES
I. GENERAL
Real Environmental Products, LLC (Contractor) shall provide all services necessary for the repair and maintenance of the Landfill Gas Collection and Control System (LGCS) and landfill cover to be performed at the City of Santa Clara (City). Project tasks include but are not limited to providing all labor, materials, and equipment to make necessary repairs to maintain the operation of the landfill gas collection system (LGCS) and landfill cover. City will request services necessary to maintain a properly functioning LGCS and landfill cover complying with all applicable regulations and in coordination with ongoing site re-development.
II. BACKGROUND
A. All Purpose Landfill
The Santa Clara All Purpose Landfill is located in the northern part of the City, straddling Lafayette Avenue south of state Highway 237 (see Landfill Location Map, Figure 1). The Site is located at 5401 Lafayette Avenue, Santa Clara, CA, 95050. The Landfill is a Class III waste management unit which operated from 1934 to 1993. The landfill waste prism consists of approximately 136 acres in four Parcels: 1, 2, 3/6 and 4.These four landfill parcels contain an active LGCS originally constructed circa 1987. The Landfill has been in the post closure maintenance period since 1994. The City isresponsible for ongoing post closure monitoring and maintenance activities.
Parcels 2, 3/6 and 4 were developed into a municipal golf course that ceased operation in October 2019 in advance of the initial development of City Center Santa Clara, a mixed- use development. The onsite irrigation was disconnected, and native vegetation has overtaken the grass and sand trap areas of the former golf course. To date, the parcels have not been developed although the City is now responsible for maintenance of the cover which involves mowing, fallen tree debris removal and repair of settled areas to prevent ponding and promote proper drainage. The majority of the LGCS on these parcels is underground with the exception of a portion of a line located on the southeast portion of Parcel 2. The former golf course landfill surface, drainage and cover cap maintenance services are all included under the scope of services for this contract.
The northwest portion of Parcel 1 has been developed into a BMX track which is bounded by a fence. Parcel 1 has a series of above ground PVC landfill gas collection lines and headers on the eastern portion of the parcel. There are also underground sections of LGCS on Parcel 1 on the eastern portion of the parcel.
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 9 of 28 1) Figure 1, Landfill Location Map
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 10 of 28 B. Landfill Gas Collection System Summary
The existing LGCS is owned by the City and installed throughout all four landfill parcels (see LGCS Plan, Figure 2). The LGCS includes approximately:
1) 74 active vertical LFG extraction wells
2) 24,000 linear feet of 3-inch to 10-inch landfill gas conveyance piping, the great majority being solvent-welded Schedule 40 PVC approximately 3 to 6 feet below ground surface (except on-grade piping in Parcel 1)
3) 3,000 linear feet of 2-inch HDPE air supply and condensate discharge pipe 4) 7 below grade condensate collection sumps, 4 with pneumatic auto-pumps 5) 1 below grade leachate collection sump with submersible electric pump 6) 64 condensate drain traps
7) 19 header shut-off (butterfly) valves
8) 147 flush mount valve boxes (for access to the LFG wellheads, condensate trapsand header shut-off valves)
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 11 of 28 MN- Valve
6" HDPE
pH T
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If
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N 13000 N 13000
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N 11500
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NOTES:
1. DATE OF TOPO: 8/13/03 BY GEOCADD SURVEYS
2. BYPASS LINE ALIGNMENTS ARE APPROXIMATE (NOT SURVEYED)
3. LFG WELLS AND CONDENSATE TRAPS LOCATIONS ESTIMATED AND MEASURED BY REAL ENVIRONMENTAL PRODUCTS + N 9500
0 N 9000
I I IllI111
--j SANTA CLARA LANDF I LL
LANDFI LL GAS RECOV ERY SYSTEM
SANTA CLARA, CALIFORN IA
POSI TIONS OF U NDERGROUND PORTIONS OF SYSTEM DETERMINED
BY PLOTTING MOST PROBABLE PATHS BETWEEN KNOWN POINTS
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DATE:
N 8500
OF SYSTEM.
LANDFILL TOPOGRAPHY IS SUB JECT TO CHANGE RELATED TOSETTLING.
SOME VARIATIONS BETWEEN ACTUAL POSITIONS AND PLOTTED
t- POSITIONS MAY EXIST.
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DRAWN BY: CHECK
ED BY:
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D. SCHOW
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0 Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 12 of 28 +
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IT
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D
C. Landfill Gas Operations
LFG is collected continuously by the LGCS and conveyed to a flare station/LFG energy facility via the 10-inch header pipe. This facility is located on the east side of Lafayette Avenue, between Parcels 1 and 2. LFG is directed as needed to fuel microturbines owned and operated by Ameresco to produce electricity. Excess LFG is directed to the flare for destruction. Note that Operations, monitoring, maintenance and repairs within the flare station/LFG energy facility is not included in this scope of services.
The City-owned flaring station includes an LFG handling skid and an enclosed ground flare, both installed in the spring of 2018. The LFG handling skid includes two multistage centrifugal blowers, with one blower operating on automatic flow control while the other is on standby. Condensate collected from the LGCS is pre-treated at the flare station by pH neutralization, then discharged to a nearby City sanitary sewer connection.
The methane concentration is typically maintained above 38 percent and the oxygen concentration is maintained below 3 percent for microturbine use.
The City’s LGCS contractor currently performs LGCS monitoring a minimum of monthly, and the flare station is monitoring weekly. Results are reported periodically to the City and the Bay Area Air Quality Management District (BAAQMD). Potential repair requirements may be observed and noted at any time by the City, its LGCS contractor, or other contractors on the site.
The LGCS contractor periodically prepares a list of all repairs necessary to keep the LGCS functioning and in compliance with all standards as noted below. The list may also note required items to replenish the LGCS spare parts inventory. The list of potential repairs is submitted for approval to the City, who will then request a cost proposal from the Contractor for completing the repairs. The Contractor must submit a cost proposal for each scheduled repair for approval by the City before commencing work. The repair cost proposal shall detail thepersonnel, number of hours, materials and equipment needed, contractor overhead, and the total not-to-exceed cost in accordance with Exhibit B, Cost Proposal. Once the City provides a Notice to Proceed, the Contractor shall coordinate on- site activities and schedule with WSP staff, who will inspect the repairs.
D. Description of Typical LGCS Repairs
The LGCS has historically been allocated approximately 40 working days peryear of the contractor working on-site, typically distributed as two weeks per calendar quarter.
Under this agreement, there may be an increase in repairs due to impending commercial redevelopment construction, more extreme weather, and normal wearand-tear of the aging LGCS. Examples of typical LGCS repairs performed by contractor include (but are not limited to):
1) Realign, regrade or replace LGCS pipe sections damaged or obstructed due to settlement or vehicle loads
2) Construct or replace compressed air and condensate discharge pipe sections 3) Raise LGCS vault boxes and/or internal components (sunken due to settlement) 4) Repair or replace non-functional LFG extraction wellheads or components such as Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 13 of 28 sample ports, temperature gauges, flexible hoses, and membrane boot seals. 5) Repair condensate drain traps or replace with self-contained condensate sump / pumps
6) Repair or replace condensate sump / pumps and other pump system components 7) Replace worn flexible rubber components (expansion couplings, casing caps, reducer couplings or bushings)
8) Troubleshoot and repair LGCS / compressed air / condensate discharge pipe breaks or leaks
9) Decommission non-operational LGCS components
10)Installation / replacement of temporary construction fencing around above ground LGCS infrastructure for protection and to help with identification All work will be required to comply with City building codes and all applicable state and local regulations and permits, including prevailing wage requirements, as well as with the Contractor’s site-specific health and safety plan approved by the City. Applicable regulations include but are not limited to: BAAQMD Regulation 8, Rule 34 (Solid Waste Disposal Sites) and California Code of Regulations Titles 17 and 27.
E. Landfill Cover Maintenance & Repair
Examples of landfill cover maintenance & repair include but are not limited to:
2) Filling low spots that have settled
3) Installation / repair of drainage facilities to transport water off the landfill service, including pumping systems and drainage lines
4) Erosion repair on landfill sideslopes
5) Adding low permeability cover soil or flexible membrane emission seals around LGCS components, vaults, and other ground penetrations. 6) Filling of burrows created by squirrels and other wildlife 7) Trimming and vegetation removal around LGCS infrastructure 8) Repair of access roads on top of closed landfill and around the perimeter III. SERVICES TO BE PROVIDED
The following three general categories of services have been identified above. Contractor will provide cost, schedule, and related information on performing individual work elements as required that fully describes the work to be performed. The labor and equipment pricing shall be in accordance with Contract rate sheets shown in Exhibit B of this Contract. Upon written acceptance of the cost proposal, the selectedContractor will work directly with the City or its designated representative during performance of that work element.
As-needed (scheduled) LGCS and landfill cover maintenance and repair services on a time-and-material basis for a 3-year term
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 14 of 28 Emergency LGCS and landfill cover repairs services on a time-and-material basis for a 3-year term
Extra services not included in proposed standard rates for Tasks 1 and 2 above (City allowance reserved per year). See paragraph “C” below.
A. As-needed Services
As-needed maintenance or repair service consists of corrective repair or maintenance work identified during site visits by the Contractor, the LGCS contractor and/or by City staff. This work is essential for proper LGCS operation and compliance with post-closure landfill cover requirements; however, it is considered work that can be scheduled to allow for efficient procurement of materials or equipment or assignment of personnel. Contractor shall provide a timeline, cost proposal and a not-to-exceed estimate to the City for all scheduled as-needed services. Work will only commence after Contractor receives written authorization from the City.
Examples of typical LGCS repairs include (but are not limited to):
1) Realign, regrade or replace LGCS pipe sections damaged or obstructed due to settlement or vehicle loads
2) Construct or replace compressed air and condensate discharge pipe sections 3) Raise LGCS vault boxes and/or internal components (sunken due to settlement) 4) Repair or replace non-functional LFG extraction wellheads or components such as sample ports, temperature gauges, flexible hoses, and membrane boot seals 5) Repair condensate drain traps or replace them with self-contained condensate sump/pumps
6) Repair or replace condensate sump/pumps
7) Replace worn flexible rubber components (expansion couplings, casing caps, reducer couplings, or bushings)
8) Troubleshoot and repair LGCS / compressed air / condensate discharge pipe breaks or leaks
9) Decommission non-operational LGCS components
B. Emergency Services
Emergency services may be required to provide immediate response to protect life, property and the environment or to restore the LGCS to continuous operation.Emergency services should be initiated onsite within twenty-four (24) hours of City’snotification to Contractor. Such services include, but are not limited to:
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 15 of 28 1) Repairing damage due to natural or man-made disasters 2) Mitigating active discharges of LFG or condensate
3) Mitigating odor or other nuisance complaints
4) Repairing construction or other vehicle damage to major LFG pipes 5) Responding to BAAQMD or other regulatory agency notices of violation Due to the nature of these items, repairs may be required 24 hoursper day, 7 days a week, 365 days per year. Emergency service will be performed only after verbal authorization from City staff, to be followed by written authorization.
C. Extra Services (City Allowance Reserve)
An Extra Service is any service that is not covered under the Contractor’s basic services and rate schedules. Extra Services will be performed on a time and materials basis. The Contractor shall provide a written estimate and not-to-exceed cost proposal to the City for all Extra Services. Extra Service will only be performed after written authorization from the City to the Contractor. Examples of Extra Services include (but are not limited to):
1) Scheduled or emergency repairs requiring traffic control 2) Confined space entry, or emissions mitigation, or additional operating equipment such as crane, manlift, forklift, slurry or concrete mixer, or drill rig 3) Access road repairs
4) Brush and fire hazard mitigation
5) Leachate pump repairs
6) Compressor repairs
7) Flare system repairs
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 16 of 28
EXHIBIT B
SCHEDULE OF FEES
SCHEDULED SERVICES
Rates for
Scheduled
Services
Item No:
Personnel
Category
Unit of Measure
Prevailing
Wage
Rate ($)
Non Prevailing
Wage Rate
1 Principal per hour N/A $185.00
2 Project Manager per hour N/A $145.00
3 Designer / ACAD per hour N/A $80.00
4 Foreman per hour $140.00 N/A
5 Equipment
Operator
per hour $192.00 N/A
6 Service
Technician
per hour $137.00 N/A
7 Extrusion
Technician
per hour $137.00 N/A
8 Fusion Technician per hour $137.00 N/A
9 General Labor per hour $135.00 N/A
10 Other: per hour
11 Other: per hour
12 Other: per hour
13 Labor overtime multiplier after
8 hours per day or 40 hours per week:
Multiplier 1.25 1.5
14 Travel expenses (Per Diem) per day: $298.00
15 Site-specific
Health & Safety
Plan
Lump Sum $1200.00 $1200.00
Equipment Category Equipment Size
or Model
16 Service Truck &
Tools
per day $300.00 Full Sized Pickup
17 Service Vehicle
Mileage
per mile $0.85 Full Sized Pickup
18 Loader / Backhoe per day $700.00 CASE
19 20
21 Skid Steer
Skid Steer
Attachments Utility
/ Terrain Vehicle
per day per day per
day
$400.00
$200.00
$300.00
CAT CAT
UTV SideXSide
22 Walking Plate Compactor $350.00
23 1” – 4” HDPE
Fusion Machine
per day $180.00 McElroy
24 4” – 6” HDPE
Fusion Machine
per day $250.00 Christy
25 Portable HDPE
Extrusion Welder
per day $300.00 Lyster
26 Portable
Generator
per day $262.00 I-Power
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 17 of 28 Rates for
Scheduled
Services
Item No:
Personnel
Category
Unit of Measure
Prevailing
Wage
Rate ($)
Non Prevailing
Wage Rate
27 Portable Air
Compressor
per day $262.00 De Walt
28 Modified Level D
PPE, per worker
per day $150.00 N/A
29 Laser Level per day $150.00 Top Con
30 Digital Manometer per day $100.00 UEI
31 Other
Jackhammer
per day $100.00 BOSCH
32 618 Fusion
Machine
per day $350.00 McElroy
EMERGENCY SERVICES
Rates for
Emergency
Services
Item No.
Personnel
Category
Unit Prevailing
Wage Rate ($)
Per Hour
Non-Prevailing
Wage Rate ($)
Per Hour
1 Principal per hour N/A $220.00
2 Project Manager per hour N/A $165.00
3 Designer / ACAD per hour N/A $100.00
4 Foreman per hour $175.00 N/A
5 Equipment
Operator
per hour $240.00 N/A
6 Service
Technician
per hour $170.00 N/A
7 Extrusion
Technician
per hour $170.00 N/A
8 Fusion
Technician
per hour $170.00 N/A
9 General Labor per hour $168.00 N/A
10 Other: Const.
Specialist
per hour $168.00 N/A
11 Other per hour
12 Other per hour
13 Labor overtime
multiplier after:
hr day and/or hr
week
factor 1.25 1.5
14 Travel expenses
(Per Diem)
per day $350.00 N/A
15 Site-specific
Health & Safety
Plan
Lump Sum N/A $1200.00
Equipment Category Rate ($) Equipment Size
or Model
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 18 of 28 Rates for
Emergency
Services
Item No.
Personnel
Category
Unit Prevailing
Wage Rate ($)
Per Hour
Non-Prevailing
Wage Rate ($)
Per Hour
16 Service Truck &
Tools
per day $300.00 Full Size Pickup
17 Service Vehicle
Mileage
per mile $0.85 Full Size Pickup
18 Loader / Backhoe per day $700.00 CASE
19 Utility / Terrain
Vehicle
per day $300.00 Side X Side
20 Walking Plate
Compactor
per day $350.00 N/A
21 1” – 4” HDPE
Fusion Machine
per day $180.00 McElroy
22 4” – 6” HDPE
Fusion Machine
per day $250.00 Christy
23 Portable HDPE
Extrusion Welder
per day $300.00 Lyster
24 Portable
Generator
per day $262.00 I-Power
25 Portable Air
Compressor
per day $262.00 Englo
26 Modified Level D
PPE, per worker
per day $150.00 N/A
27 Laser Level per day $150.00 Top Con
28 Digital
Manometer
per day $100.00 UEI
29 Other
Jackhammer:
per day $100.00 Bosch
EXTRA SERVICES
Item No. Personnel
Category Unit of Measure
Contractor’s
Non-Emergency
Mark-up (%)
Contractor’s
Emergency
Mark-up (%)
1 Vehicle Rentals % actual cost 20 35
2 Other Equipment
Rentals
% actual cost 20 35
3 Subcontract
Services
% actual cost 20 35
4 Expendable
Supplies
% actual cost 20 35
5 Construction
Materials
% actual cost 20 35
6 Other % actual cost
7 Other % actual cost
PAYMENT SCHEDULE
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 19 of 28
1. Invoices shall be paid monthly, in arrears for work performed in the previous month, or upon completion of each task order, whichever occurs first. All invoices must be submitted in a timely manner and are subject to final approval by the City.
2. Invoices shall provide a breakdown of services performed including but not limited to, the task order number, the date range showing when the work was performed, total hours worked by labor classification, the unit cost for each line item, hardware and travel time with supporting documentation, and the total invoice amount including any sales or use taxes. The invoice format will be agreed to by City and Contractor.
3. Note that invoices and payment schedules for a given task order may deviate from the above standards if agreed to and signed by both parties on the task order.
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 20 of 28
EXHIBIT C
INSURANCE REQUIREMENTS
Without limiting the Contractor’s 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, 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:
$2,000,000 Each occurrence
$2,000,000 General aggregate
$2,000,000 Products/Completed Operations aggregate
$2,000,000 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 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, 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 Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 21 of 28 wastes and/or hazardous or regulated materials, Contractor 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 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. 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 Contractor’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.
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 Contractor’s insurance.
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 22 of 28
3. General Aggregate. The general aggregate limits shall apply separately to Contractor’s work under this Agreement providing coverage at least as broad as Insurance Services Office (ISO) Endorsement CG 2503, 1985 Edition, or insurer’s equivalent (CGL);
4. 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 nonrenewal.
5. 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
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 Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 23 of 28 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.
F. 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 City’s approval as to adequacy of the insurance protection.
G. EVIDENCE OF COMPLIANCE
Contractor 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, 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 certificates, endorsements, coverage verifications and other items required to be delivered to City pursuant to this Agreement shall be mailed to:
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 24 of 28 EBIX Inc.
City of Santa Clara [Department of Public Works]
P.O. Box 100085 – S2 or 1 Ebix Way
Duluth, GA 30096 John’s Creek, GA 30097
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 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.
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 25 of 28
EXHIBIT D
LABOR COMPLIANCE ADDENDUM
I. Prevailing Wage Requirements
1. Contractor 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 Clerk’s office, which shall be available to any interested party upon request. Contractor is also required to have a copy of the applicable wage determination posted and/or available at each job site.
2. Specifically, contractors 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.
Contractors and subcontractors 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.
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, Contractor agrees to present to City, along with its request for payment, all applicable and necessary certified payrolls (for itself and all applicable subcontractors) 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 Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 26 of 28 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, Contractor and all subcontractors 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 contractor or subcontractor 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 contractor or subcontractor 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. Contractors MUST be a registered “public works contractor” 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 contractors/subcontractors 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 contractor”. Those you fail to register and maintain their status as a public works contractor shall not be permitted to perform work on the project.
10. Should any contractor or subcontractors not be a registered public works contractor and perform work on the project, Contractor 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 attorney’s fee relating to such fine.
11. This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
J. 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 Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 27 of 28 or documents shall be made available at Contractor’s address indicated for receipt of notices in this Agreement.
K. 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 Contractor until Contractor has performed all of its obligations under these provisions. This provision means that City can withhold all or part of a payment to Contractor until all required documentation is submitted. Any payment by the City despite Contractor’s 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 contractors and subcontractors 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.
Agreement with Real Environmental Products, LLC. for Landfill Gas Collection Services Page 28 of 28 City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
24-915 Agenda Date: 11/12/2024
REPORT TO COUNCIL
SUBJECT
Action on the Historic Preservation Agreement (Mills Act Contract) (PLN24-00264) for 1756 Fremont Street
COUNCIL PILLAR
Promote and Enhance Economic Housing and Transportation Development
BACKGROUND
Property owners, Joe Navasca and Yemon Oo, applied for a Historical Preservation Agreement (Mills Act Contract) (File No. PLN24-00264) for the property located at 1756 Fremont Street. Enacted in 1972, the California Mills Act legislation grants participating local governments the authority to enter into contracts with owners of qualified historic properties who actively participate in the restoration and maintenance of their historic properties while receiving property tax relief. Santa Clara participates in the Mills Act Program. A requirement of the Mills Act Contract is that the building must be a qualified structure, listed on either a local, State, or National register. The property is currently listed on the City’s Historic Resource Inventory (HRI) for age and the architectural integrity of the residential structure.
The subject property is a 6,573 square-foot lot located on the southwest side of Fremont Street between Pierce Street and Lincoln Street. The residence was constructed circa 1870 and relocated from the Agnew/Alviso area to the current site in 1924. When relocated, the residence was converted from a National style two-story farmhouse to a one-story house with a new roof and front porch in line with Craftsman Bungalow architectural style. The existing residence on the property is a 1,105 square-foot, one-story house designed in the National architectural style with Craftsman details. The property has a detached shed structure/garage that was constructed in 1924. The property has been altered since its relocation, including the removal of board and batten siding from the rear façade and external brick chimney, and rear addition with a pitched roof and new channel-lap siding. The property has been altered since the release of the 2015 California Department of Parks and Recreation (DPR) form in that the façade of the rear addition now has a paired vinyl door instead of a horizontal door and has fewer windows.
The property owners submitted the requisite application, including a historic survey (DPR523A Form), an Addendum to the 2015 DPR523A Form, a Statement of Justification for the request, and a 10-Year Restoration and Maintenance Plan for evaluation of the proposed workplan to restore, rehabilitate, and maintain the property.
The proposed Mills Act Contract with the 10-Year Restoration and Maintenance Plan and supporting documents were presented to the Historical and Landmarks Commission (HLC), and are included here as attachments. The HLC unanimously recommended that the City Council approve the Mills City of Santa Clara Page 1 of 4 Printed on 11/8/2024
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24-915 Agenda Date: 11/12/2024
Act Contract and adopt the 10-Year Restoration and Maintenance Plan for 1756 Fremont Street.
DISCUSSION
The Mills Act Program allows a qualified property owner to receive a potential property tax reduction and use that savings to assist in offsetting the costs to rehabilitate, restore, and maintain their property. To qualify for this program, the property and/or building must be listed on either a local, State, or National register. The property must also have a plan to restore and rehabilitate the property.
A DPR523A Form was prepared by Lorie Garcia of Beyond Buildings on March 14, 2015, and the Addendum to the DPR523A Form was prepared by William Kostura in October 2023. Both assess the historical significance of the property based on National and State (California) Register criteria and the City’s local criteria for significance. The evaluators found the structure at 1756 Fremont to be in overall good condition except for the alteration to the rear façade. The evaluators concluded that the property continues to retain enough of its historic character and appearance to be recognizable as a historic resource and to convey the reason for its significance as a Historically Significant Property on the City’s HRI.
The property owners submitted a Statement of Justification and 10-Year Plan for restoration and maintenance of the property. The Plan includes window and entry porch restoration, original wood siding repair, painting, electrical and HVAC update, and roofing repair. The property owners will obtain Significant Property Alteration permits for the work described in the Plan as required by the Historic Preservation Ordinance (Chapter 18.130).
On September 3, 2024 the Planning Division received a public comment letter from Historian, Lorie Garcia, who recorded the DPR in 2015, which provides clarification and corrections to the 2023 Addendum and 2015 DPR. The letter provided clarification on the rear addition. In the 2015 DPR, Ms. Garcia identified the large rear addition as being constructed in 1924, but a small, offset separate addition providing basement access was added between 2005 and 2015. According to Ms. Garcia, the 2023 addendum misinterpreted the 2015 DPR as indicating that the entire rear addition was added sometime between 2005-2010. Ms. Garcia’s letter corrects this, and states that most of the rear addition was actually added when the house was relocated in 1924. A revised and updated 2023 DPR Addendum was also provided by the applicant that corrects this information. The 2015 DPR, comment letter from Lorie Garcia, and the revised 2023 DPR Addendum are included as Attachment
1. The 10-year plan did not need to be updated, because the proposed repairs to the windows and rear addition are minor and related to repairing damage.
The HLC in their recommendation to the City Council found that the work proposed in the 10-Year Restoration and Maintenance Plan adheres to the Secretary of the Interior’s Standards for Rehabilitation. The proposed improvements, and the owner’s statement of justification, support the preservation, protection, and maintenance of a locally designated significant structure.
If approved, the subject property would be the second Mills Act Contract for 2024 and within the City’s allowed number of 10 contracts for 2024.
ENVIRONMENTAL REVIEW
City of Santa Clara Page 2 of 4 Printed on 11/8/2024
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24-915 Agenda Date: 11/12/2024
The Mills Act program is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15331 of the CEQA Guidelines (Historical Resource Restoration / Rehabilitation). This exemption consists of projects limited to maintenance, repair, stabilization, rehabilitation, restoration, preservation, conservation, or reconstruction of historical resources in a manner consistent with the Secretary of the Interior's Standards for the Treatment of Historic Properties (“SOI Standards”). The Project will result in the restoration and rehabilitation of the 1898 structure consistent with the SOI Standards.
FISCAL IMPACT
The amount of the property tax reduction depends upon the property, location, size, and comparable properties in the area. Currently, the assessed value of the property is approximately $945,833 (06/30/2024 information) and the annual property tax is approximately $11,015 (2023/24 value) (Source: Santa Clara County Assessor’s Office). The City receives approximately 10% of the base property tax. The Mills Act Contract tax reduction is based on an income capitalization method (ICM) calculation based on the average monthly rent, average maintenance costs, and an amortization schedule to arrive at a reduced appraisal value resulting in lower property taxes. The anticipated tax reduction would be 20% to 70% based on the County’s evaluation of the property’s age, condition, and local market value factors in accordance with the formula set by state law. Based on the latest information available, the estimated annual fiscal impact to the City for this individual Mills Act Contract would be a decrease of property tax revenue in the range of $220 to $771. The actual future fiscal impact may be greater due to the reassessment of property value by the County upon transfer of ownership.
As the current Council policy allows up to 10 Mills Act Contracts to be approved each year, the cumulative economic impact for multiple Mills Act contract does not significantly reduce the overall property tax income for the City. This Mills Act contract is the second such request in 2024.
COORDINATION
This report has been coordinated with the Finance Department and the City Attorney’s Office.
PUBLIC CONTACT
No public notices are required for this item. 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 that the project is categorically exempt from CEQA pursuant to CEQA Guidelines Section 15331(Class 31 - Historical Resource Restoration / Rehabilitation); and
2. Authorize the City Manager to execute a Mills Act Contract in a final form approved by the City Attorney and adopt the 10-Year Restoration and Maintenance Plan associated with the property at 1756 Fremont Street.
Reviewed by: Reena Brilliot, Acting Director, Community Development Department Approved by: Jovan D. Grogan, City Manager
City of Santa Clara Page 3 of 4 Printed on 11/8/2024
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24-915 Agenda Date: 11/12/2024
ATTACHMENTS
1. Mills Act Contract, Property Description, 2015 Primary Record, Comment Letter, 2023 Primary Record Update, Standards of Rehabilitation, 10-Year Restoration Plan
2. Historical and Landmarks Commission Staff Report from September 5, 2024
3. Statement of Justification
City of Santa Clara Page 4 of 4 Printed on 11/8/2024
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Historic Property Preservation Agreement/1756 Fremont Street Typed: 07/03/2024