Agenda packet — Shafter City Council, February 1, 2022 (part 2 of 2)

Please initial
WITCHER ELECTRIC Inc.
3810 LABORDE PLACE SUITE A - Bakersfield, CA. 93308
Phone (661) 587-7772 - Fax (661) 587-7773 Cell (661) 201-0199 c10 # 390614
E-Mail [email protected] 1012112021
City of Shafter
CVH Sewer Lift Station
Prevailing \ilage
Here is the quote for the following:
1: Inspect all underground electrical conduits ran by contractor 2z Supply 200-amp meter main combo to be set by other contractor 3: Come in once all conduits and equipment is set
4z Pull in all wiring and terminate at site
5: Assist Romtec with Startup of site
Witcher Electric is not responsible for any conduits needed, or equipment needed to be set.

Witcher Electric will only be supplying 200 amp meter main and wtres.

Material : $ 8,552.00
Electrical Labor: S 5,588.00
TotalCost: $14,140.00
Daniel V/itcher
Cell661 201-0199
SFIAF:TER # City of Shafter

COUNCIL AGENDA REPORT
Meeting Date: February 1,2022
FROM: Gabriel A. Gonzalez, City Manager
Prepared By: Michael James, Public Works Director
SUBJECT: ADOPT RESOLUTION 2845, A RESOLUTION OF THE CITY COLTNCIL

OF THE CITY OF SHAFTER ADOPTING FEDERAL EMERGENCY AND

FEDERAL GRANT PROCUREMENT PROCEDURES AS GUIDELINES
FOR EXPENDITURE OF AMERICAN RESCUE PLAN ACT OF 2021.

RECOMMENDATION
Council adopt Resolution 2845, a Resolution of the City Council of the City of Shafter Adopting Federal Emergency and Federal Grant Procurement Procedures as Guidelines for Expenditure of American Rescue Plan Act of 2021.

BACKGROUND
At its November 16,2021meeting, the Council approved a list of projects to fund with a City allocation of American Rescue Plan Act (ARPA) proceeds. To date, the City's received $2.4 million that was programmed into the Fiscal Year 2021-2022budget. An additional $2.4 million allocation is anticipated for Fiscal Year 2022-2023.

In addition to implementing projects consistent with U.S. Treasury guidelines for ARPA funding, the City must conduct policies for the procedures for procuring goods and services that adhere to applicable federal requirements. The Office of Management and Budget (OMB) requires a nonfederal entity to use procurement standards that conform to the procurement standards in the Uniform Guidance, codified at 2 CFR Sections 200.318-200.327 ("Procedures") when the procurement is federally funded. Resolution 2845 adopts these Procedures for the use by the City for procurements made in preparation of expenditures of ARPA proceeds.

CEQA ANALYSIS
Per Section 15378(b)(5) of the California Environmental Quality Act (CEQA) Guideline this action is an organizational or administrative activity of government that will not result in direct or indirect physical changes in the environment. Therefore, the action is not a "project" under CEQA.

FISCAL IMPACT
Contracted and staff costs for implementing the ARPA project procurement policies and procedures have been factored into the projects that the Council has previously approved.

Therefore, no budget action is required for adopting and implementing the proposed resolution.

CONSENT CALENDAR lv
American Rescue Plan Act ARPA Project Procurement Policies and Procedures Resolution

ALTERNATIVES
Adopting procurement policies and procedures resolution is not required to receive and use ARPA funds. However, having a guide for City staff and contractors and vendors would help ensure that the funds are used correctly. Alternative action is not recommended.

ATTACHMENTS
l. Resolution 2845
-2-
RESOLUTION NO.2845

A RE,SOLUTION OF THE CITY COUNCIL OF THE CITY OF SHAFTER

ADOPTING FEDERAL EMERGENCY AND FEDERAL GRANT

PROCUREMENT PROCEDURES AS GUIDELINES FOR EXPENDITURE
OF AMERICAN RESCUE PLAN ACT OF 2021
WHEREAS, the American Rescue Plan Act of 2021 ("Act") was signed into law on March 1I,202I.

WHEREAS, the Act provides $65.1 billion to 19,000 state, local and tribal governments nationwide using a block grant formula.
\ilHEREAS, the City of Shafter was awarded a total of $4,880,353 million and has already received 52,440,176 of these funds.

WHEREAS, the Office of Management and Budget (OMB) requires a non-federal entity to use procurement standards that conform to the procurement standards in the Uniform Guidance, codified at 2 CFR Sections 200318-200.327, when the procurement is federally funded.

WHEREAS, the City desires to adopt the Federal Emergency and Federal Grant Procurement Procedures ("Procedures"), attached hereto as Exhibit "4." WHEREAS, the City desires to adopt the Procedures for use by the City for procurements made in preparation of expenditures of the Act.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SHAFTER DOES HEREBY RESOLVE AS FOLLOWS:

SECTION 1. The above recitals are true and correct and are incorporated herein by this reference
SECTION 2. The City hereby adopts the Federal Emergency and Federal Grant Procurement Procedures, attached hereto as Exhibit "4." SECTION 3. This Resolution shall be effective as of the date of adoption. The Clerk shall certifu the adoption of this Resolution.

SECTION 4. The City Clerk shall certify to the adoption of this resolution and shall cause a certified resolution to be filed in the Office of the City Clerk.

Shafter City Council Resolution No. 2845
February 1,2022
Page2
PASSED, APPROVED AND ADOPTED THIS lst DAY OF FEBRUARY,2022.

Cathy L. Prout, Mayor
ATTEST:

Y azrnina Pallares, City Clerk
APPROVED AS TO FORM:

Marco A. Martinez, City Attorney
Shafter City Council Resolution No. 2845
February 1,2022

Page 3 ends

Exhibit 664"

FEDERAL EMERGENCY AND FEDERAL GRANT PROCUREMENT

PROCEDURES
fattached behind this page]
Shafter City Council Resolution No. 2845
February 1,2022

Page 4 ends

FEDERAL EMERGENCY AND FEDERAL GRANT PROCUREMENT PROCEDURES $ 200.318 General procurement standards
(a) The non-Federal entity must have and use documented procurement procedures, consistent with State, local, and tribal laws and regulations and the standards of this section, for the acquisition of property or services required under a Federal award or subaward. The non-Federal entity's documented procurement procedures must conform to the procurement standards identified in $$ 200.317 through 200.327 .
(b) Non-Federal entities must maintain oversight to ensure that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders. (c)
(l) The non-Federal entity must maintain written standards of conduct covering conflicts of interest and governing the actions of its employees engaged in the selection, award and administration of contracts. No employee, officer, or agent may participate in the selection, award, or administration of a contract supported by a Federal award if he or she has a real or apparent conflict of interest. Such a conflict of interest would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a tangible personal benefit from a firm considered for a contract. The officers, employees, and agents of the non-Federal entity may neither solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts. However, non-Federal entities may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct must provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the nonFederal entity. (2) If the non-Federal entity has a parent, affiliate, or subsidiary organization that is not a State, local government, or Indian tribe, the non-Federal entity must also maintain written standards of conduct covering organizational conflicts of interest. Organizational conflicts of interest means that because of relationships with a parent company, affrliate, or subsidiary organization, the non-Federal entity is unable or appears to be unable to be impartial in conducting a procurement action involving a related organization.
(d) The non-Federal entity's procedures must avoid acquisition of unnecessary or duplicative items. Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase. Where appropriate, an analysis will be made of lease versus purchase alternatives, and any other appropriate analysis to determine the most economical approach. (e) To foster greater economy and efficiency, and in accordance with efforts to promote costeffective use of shared services across the Federal Government, the non-Federal entity is encouraged to enter into state and local intergovernmental agreements or inter-entity agreements where appropriate for procurement or use of common or shared goods and services. Competition Shafter City Council Resolution No. 2845
February 1,2022

Page 5 ends

requirements will be met with documented procurement actions using strategic sourcing, shared services, and other similar procurement arrangements.
(f) The non-Federal entity is encouraged to use Federal excess and surplus property in lieu of purchasing new equipment and property whenever such use is feasible and reduces project costs. (g) The non-Federal entity is encouraged to use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions.

Value engineering is a systematic and creative analysis of each contract item or task to ensure that its essential function is provided at the overall lower cost. (h) The non-Federal entity must award contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement.

Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources. See also $ 200.2I4. (i) The non-Federal entity must maintain records sufficient to detail the history of procurement.

These records will include, but are not necessarily limited to, the following: Rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price.
û)
(1) The non-Federal entity may use a time-and-materials type contract only after a determination that no other contract is suitable and if the contract includes a ceiling price that the contractor exceeds at its own risk. Time-and-materials type contract means a contract whose cost to a nonFederal entity is the sum of:
(i) The actual cost of materials; and
(ii) Direct labor hours charged at fixed hourly rates that reflect wages, general and administrative expenses, and profit.
(2) Since this formula generates an open-ended contract price, a time-and-materials contract provides no positive profit incentive to the contractor for cost control or labor efficiency.

Therefore, each contract must set a ceiling price that the contractor exceeds at its own risk.

Further, the non-Federal entity awarding such a contract must assert a high degree of oversight in order to obtain reasonable assurance that the contractor is using efficient methods and effective cost controls.
(k) The non-Federal entity alone must be responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements. These issues include, but are not limited to, source evaluation, protests, disputes, and claims. These standards do not relieve the non-Federal entity of any contractual responsibilities under its contracts. The Federal awarding agency will not substitute its judgment for that of the non-Federal entity unless the matter is primarily a Federal concern. Violations of law will be referred to the local, state, or Federal authority having proper jurisdiction.

Shafter City Council Resolution No. 2845
February 1,2022

Page 6 ends

[85 FR 49543, Aug. 13, 2020, as amended at 86 FR 10440,Feb.22,20211 $ 200.319 Competition.
(a) All procurement transactions for the acquisition of property or services required under a Federal award must be conducted in a manner providing full and open competition consistent with the standards of this section and $ 200320.
(b) In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such procurements. Some of the situations considered to be restrictive of competition include but are not limited to:
(1) Placing unreasonable requirements on firms in order for them to qualif, to do business; (2) Requiring unnecessary experience and excessive bonding; (3) Noncompetitive pricing practices between firms or between affiliated companies; (4) Noncompetitive contracts to consultants that are on retainer contracts; (5) Organizational conflicts of interest;
(6) Specifying only a"brand name" product instead of allowing "an equal" product to be offered and describing the performance or other relevant requirements of the procurement; and (7) Any arbitrary action in the procurement process.
(c) The non-Federal entity must conduct procurements in a marìner that prohibits the use of statutorily or administratively imposed state, local, or tribal geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference. Nothing in this section preempts state licensing laws. When contracting for architectural and engineering (A/E) services, geographic location may be a selection criterion provided its application leaves an appropriate number of qualified frrms, given the nature and size of the project, to compete for the contract. (d) The non-Federal entity must have written procedures for procurement transactions. These procedures must ensure that all solicitations:
(1) Incorporate a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description must not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured and, when necessary, must set forth those minimum essential characteristics and standards to which it must conform if it is to satisff its intended use. Detailed product specihcations should be avoided if at all possible. 'When it is impractical or uneconomical to make a clear and accurate description of the Shafter City Council Resolution No. 2845
February 1,2022

Page 7 ends

technical requirements, a "brand name or equivalent" description may be used as a means to define the performance or other salient requirements of procurement. The specific features of the named brand which must be met by offers must be clearly stated; and (2) Identiff all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals.
(e) The non-Federal entity must ensure that all prequalified lists of persons, firms, or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition. Also, the non-Federal entity must not preclude potential bidders from qualifuing during the solicitation period. (f) Noncompetitive procurements can only be awarded in accordance with $ 200.320(c) $ 200.320 Methods of procurement to be followed.

The non-Federal entity must have and use documented procurement procedures, consistent with the standards of this section and $$ 200.317,200.318, and 200.319 for any of the following methods of procurement used for the acquisition of property or services required under a Federal award or sub-award.
(a) Informal procurement methods. 'When the value of the procurement for property or services under a Federal award does not exceed the simplified acquisition threshold (SAT), as defined in $ 200.1, or a lower threshold established by a non-Federal entity, formal procurement methods are not required. The non-Federal entity may use informal procurement methods to expedite the completion of its transactions and minimize the associated administrative burden and cost. The informal methods used for procurement of property or services at or below the SAT include:
(1) Micro-purchases -
(i) Distribution. The acquisition of supplies or services, the aggregate dollar amount of which does not exceed the micro-purchase threshold (See the definition of micro-purchase in $ 200.1).

To the maximum extent practicable, the non-Federal entity should distribute micro-purchases equitably among qualified suppliers.
(ii) Micro-purchase awards. Micro-purchases may be awarded without soliciting competitive price or rate quotations if the non-Federal entity considers the price to be reasonable based on research, experience, purchase history or other information and documents it files accordingly.

Purchase cards can be used for micro-purchases if procedures are documented and approved by the non-Federal entity.
(iii) Micro-purchase thresholds. The non-Federal entity is responsible for determining and documenting an appropriate micro-purchase threshold based on internal controls, an evaluation of risk, and its documented procurement procedures. The micro-purchase threshold used by the non-Federal entity must be authorized or not prohibited under State, local, or tribal laws or regulations. Non-Federal entities may establish a threshold higher than the Federal threshold established in the Federal Acquisition Regulations (FAR) in accordance with paragraphs (a)(1)(iv) and (v) of this section.

Shafter City Council Resolution No. 2845
February 1,2022

Page 8 ends

(iv) Non-Federal entity increase to the micro-purchase threshold up to $50,000. Non-Federal entities may establish a threshold higher than the micro-purchase threshold identified in the FAR in accordance with the requirements of this section. The non-Federal entity may self-certifu a threshold up to $50,000 on an annual basis and must maintain documentation to be made available to the Federal awarding agency and auditors in accordance with $ 200.334. The selfcertification must include a justif,rcation, clear identification of the threshold, and supporting documentation of any of the following:
(A) A qualification as a low-risk auditee, in accordance with the criteria in $ 200.520 for the most recent audit;
(B) An annual intemal institutional risk assessment to identiff, mitigate, and manage financial risks; or,
(C) For public institutions, a higher threshold consistent with State law (v) Non-Federal entity increase to the micro-purchase threshold over $50,000. Micro-purchase thresholds higher than $50,000 must be approved by the cognizarÍ" agency for indirect costs. The non-federal entity must submit a request with the requirements included in paragraph (aXlXiv) of this section. The increased threshold is valid until there is a change in status in which the j ustification was approved.
(2) Smallpurchases -
(i) Small purchase procedures. The acquisition of property or services, the aggregate dollar amount of which is higher than the micro-purchase threshold but does not exceed the simplified acquisition threshold. If small purchase procedures are used, price or rate quotations must be obtained from an adequate number of qualified sources as determined appropriate by the nonFederal entity. (ii) Simplified acquisition thresholds. The non-Federal entity is responsible for determining an appropriate simplified acquisition threshold based on internal controls, an evaluation of risk and its documented procurement procedures which must not exceed the threshold established in the FAR. When applicable, a lower simplified acquisition threshold used by the non-Federal entity must be authorized or not prohibited under State, local, or tribal laws or regulations. (b) Formal procurement methods. When the value of the procurement for property or services under a Federal financial assistance award exceeds the SAT, or a lower threshold established by a non-Federal entity, formal procurement methods are required. Formal procurement methods require following documented procedures. Formal procurement methods also require public advertising unless a non-competitive procurement can be used in accordance with $ 200.319 or paragraph (c) of this section. The following formal methods of procurement are used for procurement of property or services above the simplified acquisition threshold or a value below the simplified acquisition threshold the non-Federal entity determines to be appropriate:
(1) Sealed bids. A procurement method in which bids are publicly solicited and a firm fixedprice contract (lump sum or unit price) is awarded to the responsible bidder whose bid, Shafter City Council Resolution No. 2845
February 1,2022

Page 9 ends

conforming with all the material terms and conditions of the invitation for bids, is the lowest in price. The sealed bids method is the preferred method for procuring construction, if the conditions.
(i) In order for sealed bidding to be feasible, the following conditions should be present:
(A) A complete, adequate, and realistic specification or purchase description is available; (B) Two or more responsible bidders are willing and able to compete effectively for the business; and
(C) The procurement lends itself to a firm fixed price contract and the selection of the successful bidder can be made principally on the basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) Bids must be solicited from an adequate number of qualified sources, providing them sufficient response time prior to the date set for opening the bids, for local, and tribal goveffìments, the invitation for bids must be publicly advertised; (B) The invitation for bids, which will include any specifications and pertinent attachments, must define the items or services in order for the bidder to properly respond; (C) All bids will be opened at the time and place prescribed in the invitation for bids, and for local and tribal governments, the bids must be opened publicly; (D) A firm fixed price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transportation cost, and life cycle costs must be considered in determining which bid is lowest.

Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and (E) Any or all bids may be rejected if there is a sound documented reason. (2) Proposals. A procurement method in which either a fixed price or cost-reimbursement type contract is awarded. Proposals are generally used when conditions are not appropriate for the use of sealed bids. They are awarded in accordance with the following requirements:
(i) Requests for proposals must be publicized and identifr all evaluation factors and their relative importance. Proposals must be solicited from an adequate number of qualified offerors. Any response to publicized requests for proposals must be considered to the maximum extent practical;
(ii) The non-Federal entity must have a written method for conducting technical evaluations of the proposals received and making selections;
(iii) Contracts must be awarded to the responsible offeror whose proposal is most advantageous to the non-Federal entity, with price and other factors considered; and Shafter City Council Resolution No. 2845
February 7,2022

Page 10 ends

(iv) The non-Federal entity may use competitive proposal procedures for qualifications-based procurement of architectural/engineering (A/E) professional services whereby offeror's qualifications are evaluated and the most qualified offeror is selected, subject to negotiation of fair and reasonable compensation. The method, where price is not used as a selection factor, can only be used in procurement of A/E professional services. It cannot be used to purchase other types of services though A/E firms that are a potential source to perform the proposed effort. (c) Noncompetitive procurement. There are specific circumstances in which noncompetitive procurement can be used. Noncompetitive procurement can only be awarded if one or more of the following circumstances apply:
(1) The acquisition of property or services, the aggregate dollar amount of which does not exceed the micro-purchase threshold (see paragraph (a)(1) of this section); (2) The item is available only from a single source;
(3) The public exigency or emergency for the requirement will not permit a delay resulting from publicizing a competitive solicitation;
(4) The Federal awarding agency or pass-through entity expressly authorizes a noncompetitive procurement in response to a written request from the non-Federal entity; or (5) After solicitation of a number of sources, competition is determined inadequate $ 200.321 Contracting with small and minority businesses, women's business enterprises, and labor surplus area firms.
(a) The non-Federal entity must take all necessary afhrmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used when possible. (b) Affirmative steps must include
(1) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(2) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
(3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises;
(4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; Shafter City Council Resolution No. 2845
February 1,2022

Page 1 ends

(5) Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and
(6) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (bXl) through (5) of this section. ç 200.322 Domestic preferences for procurements.
(a) As appropriate and to the extent consistent with law, the non-Federal entity should, to the greatest extent practicable under a Federal award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards including all contracts and purchase orders for work or products under this award.
(b) For purposes of this section
(1) "Produced in the United States" means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) "Manufactured products" means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber. $ 200.323 Procurement of recovered materials.

A non-Federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
ç 200.324 Contract cost and price
(a) The non-Federal entity must perform a cost or price analysis in connection with every procurement action in excess of the Simplified Acquisition Threshold including contract modifications. The method and degree of analysis is dependent on the facts surrounding the particular procurement situation, but as a starting point, the non-Federal entity must make independent estimates before receiving bids or proposals.

Shafter City Council Resolution No. 2845
February 1,2022

Page 12 ends

(b) The non-Federal entity must negotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where cost analysis is performed.

To establish a fair and reasonable profit, consideration must be given to the complexity of the work to be performed, the risk borne by the contractor, the contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.
(c) Costs or prices based on estimated costs for contracts under the Federal award are allowable only to the extent that costs incurred or cost estimates included in negotiated prices would be allowable for the non-Federal entity under subpart E of this part. The non-Federal entity may reference its own cost principles that comply with the Federal cost principles. (d) The cost plus a percentage of cost and percentage of construction cost methods of contracting must not be used.
$ 200.325 Federal awarding agency or pass-through entity review. (a) The non-Federal entity must make available, upon request of the Federal awarding agency or pass-through entity, technical specifications on proposed procurements where the Federal awarding agency or pass-through entity believes such review is needed to ensure that the item or service specified is the one being proposed for acquisition. This review generally will take place prior to the time the specification is incorporated into a solicitation document. However, if the non-Federal entity desires to have the review accomplished after a solicitation has been developed, the Federal awarding agency or pass-through entity may still review the specifications, with such review usually limited to the technical aspects of the proposed purchase.
(b) The non-Federal entity must make available upon request, for the Federal awarding agency or pass-through entity pre-procurement review, procurement documents, such as requests for proposals or invitations for bids, or independent cost estimates, when:
(1) The non-Federal entity's procurement procedures or operation fails to comply with the procurement standards in this part;
(2) The procurement is expected to exceed the Simplified Acquisition Threshold and is to be awarded without competition or only one bid or offer is received in response to a solicitation; (3) The procurement, which is expected to exceed the Simplified Acquisition Threshold, specifies a "brand name" product;
(a) The proposed contract is more than the Simplified Acquisition Threshold and is to be awarded to other than the apparent low bidder under a sealed bid procurement; or (5) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the Simplified Acquisition Threshold.

Shafter City Council Resolution No. 2845
February 1,2022

Page 13 ends

(c) The non-Federal entity is exempt from the pre-procurement review in paragraph (b) of this section if the Federal awarding agency or pass-through entity determines that its procurement systems comply with the standards of this part.
(l) The non-Federal entity may request that its procurement system be reviewed by the Federal awarding agency or pass-through entity to determine whether its system meets these standards in order for its system to be certified. Generally, these reviews must occur where there is continuous high-dollar funding, and third-party contracts are awarded on a regular basis; (2) The non-Federal entity may self-certi$ its procurement system. Such self-certification must not limit the Federal awarding agency's right to survey the system. Under a self-certification procedure, the Federal awarding agency may rely on written assurances from the non-Federal entity that it is complying with these standards. The non-Federal entity must cite specific policies, procedures, regulations, or standards as being in compliance with these requirements and have its system available for review.
ç 200.326 Bonding requirements.

For construction or facility improvement contracts or subcontracts exceeding the Simplified Acquisition Threshold, the Federal awarding agency or pass-through entity may accept the bonding policy and requirements of the non-Federal entity provided that the Federal awarding agency or pass-through entity has made a determination that the Federal interest is adequately protected. If such a determination has not been made, the minimum requirements must be as follows:
(a) A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid guarantee" must consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of the bid, execute such contractual documents as may be required within the time specified. (b) A performance bond on the part of the contractor for 100 percent of the contract price. A "performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor's requirements under such contract.
(c) A payment bond on the part of the contractor for 100 percent of the contract price. A "payment bond" is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract.
ç 200327 Contract provisions.

The non-Federal entity's contracts must contain the applicable provisions described in appendix II to this part.

A
l'<.rrv <rr'l
City of Shafter

SHAFTER COUNCIL AGENDA REPORT
Meeting Date: February 1,2022
FROM: Gabriel A. Gonzalez, City Manager
Prepared By: Kevin Harmon, City Engineer
SUBJECT AGREEMENTS (2) FOR THE COMPLETION OF PUBLIC

IMPROVEMENTS WITH KC BUILDERS COLLABORATIVE LLC, FOR
TRACT 7318 PHASE 1 AND PHASE 2

RECOMMENDATION
Council find the requested actions are exempt from the California Environmental Quality Act; approve the Agreement for the Completion of Public Improvements with KC Builders Collaborative, LLC for Tract 7318-1, including reductions in the performance and payment bonds; approve the Agreement for the Completion of Public Improvements with KC Builders Collaborative LLC for Tract 7318-2, including reductions in the performance and payment bonds; and authorizethe City Manager to execute both agreements.

BACKGROUND
Tract 7318 is located on the north side of Tulare Avenue and west of Reiker Street. Although its development commenced several years ago, its ownership has changed several times since the City approved the tentative map in20l7. The current developer, KC Builders Collaborative LLC ("KC Builders), is working on completing miscellaneous public improvements, including removing existing power poles within future street work, final street paving, block walls, and landscaping.

KC Builders has requested to file and record Tract 7318 Phase 1 and Phase 2 as separate maps before it completes the public improvements, which requires that they execute an agreement with the City to ensure completion. Such an agreement would specifically stipulate that they construct all required improvements per the development plans approved by the City Engineer at their own cost. In addition, performance and payment bonds shall also be provided for each tract to guarantee the faithful performance of the construction of the public improvements.

KC Builders has requested that the bond values cover only outstanding improvements. Given that a significant portion of the required improvements are complete and approved by the City Engineer, staff has determined this to be a reasonable request. If approved by the Council, the improvement agreements and the associated bonds will be executed before the recordation of each tract map.

CONSENT CALENDAR 1
Agreements for the Completion of Public Improvements with KC Builders Collaborative LLC for Tracts 7318-1, &7318-2

FISCAL IMPACT
Costs to prepare and execute the recommended public improvement agreement can be covered within operational and project accounts in the current fiscal year budget. No budget action is required.

CEQA ANALYSIS
The environmental effects of constructing Tracts 7318-1 and 7318-2, including public improvements, have akeady been analyzed in the 2005 General Plan Program Environmental Impact Report. The agreements do not change the intensity of development already analyzedthat would warrant additional environmental review. Per Section 15378(bX4) of the California Environmental Quality Act (CEQA) Guideline this action would not constitute the creation of govemment funding mechanisms or other govemment fiscal activities, which may result in a potentially significant physical impact on the environment. Therefore, the action is not a "project" under CEQA.

ALTERNATIVES
The Council can reject the requested action and direct staff to require the tract developer to complete the required public improvements before the tract maps are requested. However, given how ownership changes have delayed the development of the tract, the City should consider accommodating a request that could help expedite completion. A public improvement agreement is a proven alternative to completing the improvement required before a recorded map. In this particular case, new agreements would be modeled after previous agreements, plus they would be reviewed and approved by the City Attorney. Alternative action is not recommended.

ATTACHMENTS
Agreement for Completion of Public Improvements - Tract 7318- Phase 1 Agreement for Completion of Public Improvements - Tract 7318- Phase 2

1. 2.
-2-

RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:

CITY OF SHAFTER
336 Pacific Avenue
Shafter, California 93263
ATTN: City Engineer
Exempt from recordinq fee, per Government Code
Section 6103

CITY OF SHAFTER

SPACE ABOVE THIS LINE FOR
By:

City Clerk

AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS
TRACT 7318 PHASE 1
Between

CITY OF SHAFTER, A CALIFORNIA MUNICIPAL CORPORATION
and

KG BUILDERS COLLABORATIVE LLC
17 23 6.000 12\30 429 6 10. 1

AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS
TRACT 7318 PHASE 1
l. Pnnrrrs nHo Dnrr.

This Agreement for the Completion of Public lmprovements ("Agreement") is entered into as of this day of by and between the City of Shafter, a
California municipal corporation and charter city ("City") and KC BUILDERS COLLABORATIVE LLC with its principal office located at 10800 STOCKDALE HIGHWAY, SUITE 101, BAKERSFIELD, CA 93311 ("Developer"), City and Developer are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties,"
ll. Recmls.

A, On AUGUST 15,2016, Millennium Homes LLC submitted to City an application for approval of a tentative map for real property located within City, a legal description of which is attached hereto as Exhibit "4" ("Property"), The tentative map was prepared on behalf of Millennium Homes LLC by DEWALT CORPORATION, and is identified in City records as TRACT 7318 PHASE L B. The application for a tentative map for TRACT 7318 PHASE I submitted by Millennium Homes LLC was deemed complete on MAY 17,2017. On JULY 18,2017, the SHAFTER CITY COUNCIL conditionally approved Develope/s application for a tentative map for TRACT 7318 PHASE l.

Millennium Homes LLC installed the following improvements for TRACT 7318 PHASE 1: public sewer system including services, public water system including services, street curb & gutter (collectively the "MH lmprovements"). Said improvements were deemed acceptable by City of Shafter Public Works and Engineering,
Subsequently, KC BUILDERS COLLABORATIVE ("Develope/') assumed ownership and responsibility for the development of TRACT 7318 PHASE I and all public improvements required by the development, including those improvements constructed by the previous owner, Millennium Homes LLC (Assignment of "Tentative Tract No, 7318 Amendment No 1. to Amended and Restated Development Agreement No, 18-16" recorded March 15, 2021in Document No.221047937, Kern County Official Records, C. Developer has not completed all of the work or made all of the public improvements required by the Shafter Municipal Code (Title 16-Subdivisions), the Subdivision Map Act (Government Code sections 66410 et geq,) ("Map Act"), the conditions of approval for TRACT 7318 PHASE 1, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.

D. Pursuant to Title 16 of the Shafter Municipal Code and the applicable provisions of the Map Act, Developer and City enter into this Agreement for the timely construction and completion of the public improvements and the furnishing of the security therefor, acceptable to the City Engineer, for TRACT 7318 PHASE 1.

E. Develope/s execution of this Agreement and the provision of the security are made in consideration of City's approval of the final map for TRACT 7318 PHASE 1.

I 7 23 6.000 t2\30 429 6 I 0. I
Trnus.
3,1 Effectiveness. This Agreement shall not be effective unless and untilallthree of the following conditions are satisfied: (a) Developer provides City with security of the type and in the amounts required by this Agreement; (b) Developer executes and records this Agreement in the Recorder's Office of the County of Kern; (c) the City Council of the City ("City Council") approves the final map for TRACT 7318 PHASE I and (d) Developer records the final map for TRACT 7318 PHASE I in the Recorder's Office of the County of Kern. lf the above described conditions are not satisfìed, this Agreement shall automatically terminate without need of further action by either City or Developer, and Developer may not thereafter record the final map for TRACT 7318 PHASE 1.

3.2 Public lmorovements. Developer shall construct or have constructed at its own cost, expense, and liability all improvements required by City as part of the approval of TRACT 7318 PHASE 1, including, but not limited to, all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, water mains and services, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities as shown in detail on the plans, profiles, and specifications which have been prepared by or on behalf of Developer for TRACT 7318 PHASE I ("Public lmprovements"). The Public lmprovements are more specifically described in Exhibit "B," which is attached hereto and incorporated herein by this reference. Construction of the Public lmprovements shall include any transitions and/or other incidental work deemed necessary for drainage or public safety, The Developer shall be responsible for the replacement, relocation, or removal of any component of any irrigation water system in conflict with the construction or installation of the Public lmprovements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water system, Developer further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public lmprovements,

3.2.1 Prior Partial Construction of Public lmprovements. Where construction of any Public lmprovements has been partially completed prior to this Agreement, Developer agrees to complete and maintain such Public lmprovements or assure their completion in accordance with this Agreement. This requirement applies to the "MH lmprovements" required by the development and constructed by previous owners or developers.

3.2.2 Permits: Notices: Utility Statements. Prior to commencing any work, Developer shall, at its sole cost, expense, and liability, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the Public lmprovements and performance of Develope/s obligations under this Agreement. Developer shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or license issued to Developer. Prior to commencing any work, Developer shall file a written statement with the City Clerk and the City Engineer, signed by Developer and each utility which will provide utility service to the Property, attesting that Developer has made all deposits legally required by the utility for the extension and provision of utility service to the Property.

3.2.3 Pre-approval of Plans and Specifications. Developer is prohibited from commencing work on any Public lmprovement until all plans and specifications for such Public lmprovement have been submitted to and approved by the City Engineer, or his or her designee. Approval by the City t 7 23 6.000 1 2\30 429 6 1 0 . t 2
Engineer shall not relieve Developer from ensuring that all Public lmprovements conform with all other requirements and standards set forth in this Agreement,

3.2.4 Qualitv of Work: Compliance With Laws and Codes. The construction plans and specifications for the Public lmprovements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public lmprovements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced.

3.2.5 Standard of Performance. Developer and its contractors, if any, shall perform all work required to construct the Public lmprovements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.

3.2.6 Alterations to lmprovements The Public lmprovements in Exhibit "8" are understood to be only a general designation of the work and improvements to be done, and not a binding description thereof. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. lf during the course of construction and installation of the Public lmprovements it is determined that the public interest requires alterations in the Public lmprovements, Developer shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public lmprovements to be completed may be accomplished without giving prior notice thereof to Developer's surety for this Agreement.

3.3 Maintenance of Public lmprovements and Landscapinq. City shall not be responsible or liable for the maintenance or care of the Public lmprovements until City approves and accepts them, City shall exercise no control over the Public lmprovements until accepted. Any use by any person of the Public lmprovements, or any portion thereof, shall be at the sole and exclusive risk of the Developer at all times prior to City's acceptance of the Public lmprovements. Developer shall maintain all the Public lmprovements in a state of good repair until they are completed by Developer and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, sewers, and storm drains; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements. lt shall be Develope/s responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. lf Developer fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Developer and its surety under this Agreement, City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public lmprovements or their condition prior to acceptance. t7 236.000 12\30 4296 t0. I 3

3.4 Construction Schedule. Unless extended pursuant to this Section 4.1 of this Agreement, Developer shall fully and adequately complete or have completed the Public lmprovements within one (1) year of the effective date of this Agreement.

3.4.1 Extensions. City may, in its sole and absolute discretion, provide Developer with additional time within which to complete the Public lmprovements, lt is understood that by providing the security required under Section 13.0 et seq. of this Agreement, Developer and its surety consent in advance to any extension of time as may be given by City to Developer, and waives any and all right to notice of such extension(s). Developer's acceptance of an extension of time granted by City shall constitute a waiver by Developer and its surety of all defense of laches, estoppel, statutes of limitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public lmprovements were to have been completed hereunder. ln addition, as consideration for granting such extension to Developer, City reserves the right to review the provisions of this Agreement, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Developer, and to require adjustments thereto when wananted according to City's reasonable discretion.

3.4.2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not accrue until Developer has provided the City Engineer with written notice of Develope/s intent to abandon or othenruise not complete required or agreed upon Public lmprovements.

3.5 Gradinq. Developer agrees that any and all grading done or to be done in conjunction with construction of the Public lmprovements or development of TRACT 7318 PHASE I shall conform to all federal, state, and local laws, ordinances, regulations, and other requirements, including City's grading regulations, ln order to prevent damage to the Public lmprovements by improper drainage or other hazards, the grading shall be completed in accordance with the time schedule for completion of the Public lmprovements established by this Agreement, and prior to City's approval and acceptance of the Public lmprovements and release of the Security as set forth in Section 13.0 et seq. of this Agreement,

3.6 Utilities. Developer shall provide utility services, including water, power, gas, and telephone service to serve each parcel, lot, or unit of land within TRACT 7318 PHASE I in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services. Except for commercial or industrial properties, Developer shall also provide cable television facilities to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City's jurisdictional limits. All utilities shall be installed underground.

3.8 City lnspection of Public lmprovements. Developer shall, at its sole cost, expense, and liability, and at all times during construction of the Public lmprovements, maintain reasonable and safe 1'7 23 6.000 1 2\f 0 429 6 I 0. 1 4
facilities and provide safe access for inspection by City of the Public lmprovements and areas where construction of the Public lmprovements is occurring or will occur. lV. Dernulr;Norce;RrmEores.
4,1 Notice. lf Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation ("Notice"), Developer shall substantially commence the work required to remedy the default or violation within ten (10) days of the Notice. lf the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice verbally, and Developer shall substantially commence the required work within twenty-four (24) hours thereof, lmmediately upon City's issuance of the Notice, Developer and its surety shall be liable to City for all costs of construction and installation of the Public lmprovements and all other administrative costs expenses as provided for in Section 10,0 of this Agreement.

4.2 Failure to Remedy: CitvAction. lf the work required to remedythe noticed defaultorviolation is not diligently prosecuted to a completion acceptable to City within the time frame contained in the Notice, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation.

All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Developer and its surety, without the necessity of giving any further notice to Developer or surety, City's right to take such actions shall in no way be limited by the fact that Developer or its surety may have constructed any, or none of the required or agreed upon Public lmprovements at the time of City's demand for performance, ln the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Developer or its surety to cease in order to allow adequate coordination by City.

Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be preludiced thereby, City may also process a reversion to acreage and thereafter recover from Developer or its surety the full cost and expense incurred,

4.3 Other Remedies, No action by City pursuant to Section 9,0 et ggq, of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law, City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action fordamages, injunctive relief, or specific performance,

4.4 Administrative Costs, lf Developer fails to construct and install all or any part of the Public lmprovements within the time required by this Agreement, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law.
4,5 Acceptance of lmprovements: As-Built or Record Drawings, lf the Public lmprovements are properly completed by Developer and approved by the City Engineer, and if they comply with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements, the City 1 7 23 6.000 1 2\30 429 6 1 0. I 5
Council shall be authorized to accept the Public lmprovements. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public lmprovements prior to such time as all of the Public lmprovements are complete, which shall not release or modify Develope/s obligation to complete the remainder of the Public lmprovements within the time required by this Agreement, Upon the total or partial acceptance of the Public lmprovements by City, Developer shall file with the Recorder's Office of the County of Kern a notice of completion forthe accepted Public lmprovements in accordance with California Civil Code section 3093, at which time the accepted Public lmprovements shall become the sole and exclusive property of City without payment therefor. lf TRACT 7318 PHASE I was approved and recorded as a single phase map, City shall not accept any one or more of the improvements until all of the Public lmprovements are completed by Developer and approved by City, lssuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City's acceptance or approval of any Public lmprovements, Notwithstanding the foregoing, City may not accept any Public lmprovements unless and until Developer provides one (1) set of "as-built" or record drawings or plans to the City Engineer for all such Public lmprovements. The drawings shall be certified and shall reflect the condition of the Public lmprovements as constructed, with allchanges incorporated therein.

4.6 Warrantv and Guarantee. Developer hereby wanants and guarantees all Public lmprovements (including MH lmprovements) against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of all landscaping within the Property in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1)year following completion of the work and acceptance by City ("Warranty"). During the Warranty, Developer shall repair, replace, or reconstruct any defective or otheruvise unsatisfactory portion of the Public lmprovements, in accordance with the cunent ordinances, resolutions, regulations, codes, standards, or other requirements of City, and to the approval of the City Engineer, All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Developer and its surety. As to any Public lmprovements which have been repaired, replaced, or reconstructed during the Warranty, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following City's acceptance of the repaired, replaced, orreconstructed Public lmprovements. Nothing herein shallrelieve Developerfrom any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public lmprovement following expiration of the Warranty or any extension thereof. Developer's warranty obligation under this section shall survive the expiration or termination of this Agreement,

4.7 Security; Surety Bonds. Prior to execution of this Agreement, Developer shall provide City with surety bonds in the amounts and underthe terms setforth below ("Security"). The amountof the Security shall be based on the City Enginee/s approximation of the actual cost to construct the Public lmprovements, including the replacement cost for all landscaping ("Estimated Costs"). lf City determines, in its sole and absolute discretion, that the Estimated Costs have changed, Developer shall adjust the Security in the amount requested by City. Develope/s compliance with this provision (Section 13.0 et ggq.) shall in no way limit or modify Developer's indemnification obligation provided in Section 16,0 of this Agreement.

4.7.1 Performance Bond. To guarantee the faithful performance of the Public lmprovements and all the provisions of this Agreement, to protect City if Developer is in default as set forth in Section 8.0 et seg. of this Agreement, and to secure Develope/s one-year guarantee and warranty of the Public lmprovements, including the maintenance of all landscaping in a vigorous and thriving condition, Developer shall provide City a faithful performance bond in the amount of THREE HUNDRED THIRTY THOUSAND DOLLARS AND NO CENTS ($330,000.00******)which sum shall be not less than one hundred percent (100%)of the Estimated Costs. The City Council may, in its sole and absolute discretion and upon 1 7 23 6.000 1 2\30 429 6 1 0. 1 6
recommendation of the City Engineer, partially release a portion or portions of the security provided under this section as the Public lmprovements are accepted by City, provided that Developer is not in default on any provision of this Agreement or condition of approval for TRACT 7318 PHASE l, and the total remaining security is not less than twenty-five percent (250/o) of the Estimated Costs. All security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 12 of this Agreement, provided that Developer is not in default on any provision of this Agreement or condition of approval for TRACT 7318 PHASE 1.

4.7.2 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for performance of the Public lmprovements and this Agreement, Developer shall provide City a labor and materials bond in the amount of THREE HUNDRED THIRTY THOUSAND DOLLARS AND N0 CENTS ($330,000.00******)which sum shall not be less than one hundred percent (100%) of the Estimated Costs. The security provided under this section may be released by written authorization of the City Engineer after six (6) months from the date City accepts the final Public lmprovements. The amount of such security shall be reduced by the total of all stop notice or mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (20%) of such claims for reimbursement of City's anticipated administrative and legal expenses arising out of such claims,

4.7.3 Additional Requirements, The surety for any surety bonds provided as Security shall have a current A.M. Best's rating of no less than A-:Vll, shall be licensed to do business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Developer or its surety shall secure the costs and reasonable expenses and fees, including reasonable attorney's fees and costs, incurred by City in enforcing the obligations of this Agreement.

The Developer and its surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public lmprovements, or the plans and specifications for the Public lmprovements shall in any way affect its obligation on the Security.

4.7 .4 Evidence and lncorporation of Securitv. Evidence of the Security shall be provided on the forms set forth in Exhibit "C," unless other forms are deemed acceptable by the City Engineer, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Exhibit "C" and incorporated herein by this reference.

4.8 Monument Security. Prior to City's execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for TRACT 7318 PHASE I in compliance with the applicable provisions of City's Municipal and/or Development Code ("Subdivision Monuments"), Developer shall deposit cash with City in the amount of THREE THOUSAND SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($3,750.00******)which sum shall not be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as determined by the City Engineer. Said cash deposit may be released by written authorization of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of payment in full from the engineer or surveyorwho set the Subdivision Monuments, and provided Developer is not in default of any provision of this Agreement orcondition of approvalforTRACT 7318 PHASE L
4,9 Lien. To secure the timely performance of Developer's obligations under this Agreement, including those obligations for which security has been provided pursuant to Sections 13 et ggq. and 14 of I 7 23 6.000 1 2\30 429 6 1 0. I 7
this Agreement, Developer hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other governmental agency for a public purpose. As to Develope/s default on those obligations for which security has been provided pursuant to Sections 13 et ggg. and 14 of this Agreement, City shall first attempt to collect against such security prior to exercising its rights as a contract lienholder under this section.

4.10 lndemnification. Developer shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Public lmprovements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the negligence or willful misconduct of Agency as determined by a court or administrative body of competent jurisdiction. Develope/s obligation to indemnify shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents.

4.11 Public Works Determination Developer has been alerted to the requirements of California Labor Code section 1770 et seq,, including, without limitation S,B. 975, which require the payment of prevailing wage rates and the performance of other requirements if it is determined that this Agreement constitutes a public works contract. lt shall be the sole responsibility of Developer to determine whether to pay prevailing wages for any or all work required by this Agreement, As a material part of this Agreement, Developer agrees to assume all risk of liability arising from any decision not to pay prevailing wages for work required by this Agreement.

V. lrusuRlHce.

5.1 Types: Amounts, Developer shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public lmprovement pursuant to this Agreement, insurance of the types and in the amounts described below ("Required lnsurance"). lf any of the Required lnsurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit.

5.1.1 General Liabilitv, Developer and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage,

5.1.2 Business Automobile Liabilitv. Developer and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence, Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible,
1 7 23 6.000 I 2\30 429 6 I 0. I I

5.1,3 Workers' Comoensation. Developer and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $1,000,000 per occurrence, at all times during which insured retains employees.

5.1.4 Professional Liability, For any consultant or other professional who will engineer or design the Public lmprovements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public lmprovements. Such insurance shall be endorsed to include contractual liability,

5.2 Deductibles, Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses, 5,3 Additional lnsured: Separation of lnsureds, The Required lnsurance shall name City, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Developer or its contractors, including materials, parts, or equipment furnished in connection therewith, The Required lnsurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers,

5.4 Primary lnsurance: Waiver of Subroqation. The Required lnsurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected ofiïcials, officers, employees, agents, and volunteers. All policies for the Required lnsurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy,

5.6 Term: Cancellation Notice. Developer and its contractors shall maintain the Required lnsurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required lnsurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 30 days prior written notice to City.

5.7 lnsurer Ratinq. Unless approved in writing by City, all Required lnsurance shall be placed with insurers licensed to do business in the State of California and with a current A.M, Best rating of at least A-:Vll.

5.8 Sions and Advertisinq. Developer understands and agrees to City's ordinances, regulations, and requirements governing signs and advertising structures. Developer hereby agrees with and consents to the removal by City of all signs or other advertising structures erected, placed, or situated in violation of | 7 23 6.000 1 2\30 429 6 1 0. I I
any City ordinance, regulation, or other requirement. Removal shall be at the expense of Developer and its surety, Developer and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal,

5.9 Relationship Between the Parties, The Parties hereby mutually agree that neither this Agreement, any map related to TRACT 7318 PHASE 1, nor any other related entitlement, permit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer's contractors and subcontractors are exclusively and solely under the control and dominion of Developer, Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City.

Vl. Gel¡nn Pnovrsprus
6,1 Authority to Enter Aqreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party.

6.2 Cooperation: FurtherActs, The Parties shallfully cooperate with one another, and shalltake any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.
6,3 Construction: References: Captions. lt being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days, All references to Developer include all personnel, employees, agents, and subcontractors of Developer, except as othenruise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as othen¡vise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.

6.4 Notices, All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice:

CITY:

CITY OF SHAFTER
336 PACIFIC AVENUE
SHAFTER, CALIFORNIA 93263
ATTN: CITY ENGINEER
DEVELOPER:

KC BUILDERS COLLABORATIVE LLC
lOBOO STOCKDALE HIGHWAY, SUITE 101,
BAKERSFIELD, CA 93311
Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S. Mail,
17 23 6.000 12\30 429 610. I 10
6,5 Amendment: Modification, No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties,

6.6 Waiver. City's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City's waiver of any breach of this Agreement, shall not relieve Developer of any of its obligations under this Agreement, whether of the same or similar type.

The foregoing shall be true whether City's actions are intentional or unintentional, Developer agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or performance of the Public lmprovements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or performance of the Public lmprovements or this Agreement,

6.7 AssionmentorTransferof Aqreement, Developershallnotassign, hypothecate, ortransfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City, Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer, Unless specifically stated to the contrary in City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer from any duty or responsibility under this Agreement. 6,8 Bindi Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation.

6.9 No Third Partv Beneficiaries, There are no intended third party beneficiaries of any right or obligation assumed by the Parties.

6.10 lnvaliditv: Severability. lf any portion of this Agreement is declared invalid, illegal, or othenrise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect,
6,11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Kern, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding, Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394.

6.12 Attornevs' Fees and Costs. lf any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by finaljudgment or arbitration award, shall be entitled to and recover from the other party all costs and expenses incurred by the prevailing party, including actual attorneys' fees ("Costs"), Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Costs, which shall include, without limitation, attorneys' and experts' fees, costs and expenses 17236.00012\30429610. I 11
incurred in the following: (a) post judgment motions and appeals, (b)contempt proceedings, (c)garnishment, levy, and debtor and third party examination, (d) discovery, and (e) bankruptcy litigation, This section shall survive the termination or expiration of this Agreement. 6,13 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shallconstitute one and the same instrument,
1 7 23 6.000 12\30 429 6 I 0. 1 12

CITY OF SHAFTER KC BUILDERS COLLABORATIVE LLC
By:

By:

GabrielA. Gonzalez
City Manager
City of Shafter
(signature)
(print name)
(title)
ATTEST:

By:

Yazmina Pallares
City Clerk
City of Shafter
APPROVED AS TO FORM:

BEST BEST & KRIEGER LLP
(signature)
(print name)
(title)
By:

NOTE: DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE

ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS,

ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S BUSINESS ENTITY.
17 23 6.000 12\30 429 6 1 0. 1 13
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,

ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALTFoRNTA )

COUNTY OF
On 20 before me,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY 0F PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and officialseal.

Signature of Notary Public

OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT lndividual
Corporate Officer
Title(s) Title or Type of Document
Partne(s) Limited
General
Attorney-ln-Fact
Trustee(s)
Guardian/Conservator
Other:

Number Of Pages
Date 0f Document
Signer is representing:

Name Of Person(s) 0r Entity(ies)
17236.000 12\30 4296 10. 1
Signe(s) Oher Than Named Above
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 accu 0r of that document.

ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE 0F CALTFORNTA )

COUNTY OF
On 20 before me,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/he/their authorized capacity(ies), and that by his/heritheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and officialseal,
Srgnaure or Not¿lry HuDilc

OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT lndividual
Corporate Officer
Title or Type of Doarment
Partne(s) Limited
General
Title(s)
Attorney-ln-Fact
Trustee(s)
Guardian/Conservator
Other:

Number Of Pages
Date Of Document
Signer is representing:

Name Of Penson(s) 0r Entity(ies)
1 7 23 6.000 t2\30 429 6 | 0. I
Signe(s) Oher Than Named Above
EXHIBIT "A'
LEGAL DESCRIPTION OF PROPERTY. TRACT 7318 PHASE 1
BEING A DIVISION OF A PORTION OF PARCEL A OF LOT LINE ADJUSTMENT 21-85 RECORDED IN DOCUMENT NO. KERN COUNTY
OFFICIAL RECORDS; ALSO BEING A PORTION OF THE NORTHWEST QUARTER 0F SECTION 9, TOWNSHIP 28 SOUTH, RANGE 25 EAST, MOUNT DIABLO BASE & MERIDIAN, IN THE CITY OF

SHAFTER, COUNTY OF KERN, STATE OF CALIFORNIA,
1 7 23 6.000 12\30 429 6 1 0. 1
Exhibit C-1
EXHIBIT -8"
L¡ST OF PUBLIC IMPROVEMENTS. TRACT 7318 PHASE 1
THE FOLLOWING LIST OF IMPROVEMENTS SHALL NOT BE CONSIDERED AS COMPLEÏE OR ALL

INCLUSIVE BUT SHALL SERVE AS A GENERAL DESCRIPTION OF IMPROVEMENTS REQUIRED FOR

RESIDENTIAL TRACTS, DEVELOPER'S ATTENTION IS DIRECTED TO THE CONDITIONS OF

APPROVAL FOR THE TRACT, THE DEVELOPER'S AGREEMENT FOR THE TRACT, ANY APPLICABLE SPECIFIC PLAN, AND TITLE 16 OF THE CITY OF SHAFTER MUNICIPAL CODE FOR MORE INFORMATION ON SPECIFIC PUBLIC IMPROVEMENTS REQUIRED.

ALL EARTHWORK AND GRADING INCLUDING REMOVAL AND DISPOSAL OF UNSUITABLE

MATERIALS, REMOVAL AND/OR RELOCATION OF OBSTRUCTIONS, IMPORT, EXPORT,

ROUGH GRADING, FINAL GRADING, EXCAVATION, TRENCHING, BACKFILLING,

COMPACTION, FOOTINGS, FOUNDATIONS, AND SUBGRADE PREPARATION,

OVEREXCAVATION, RECOMPACTION, RETAINING STRUCTURES, DUST CONTROL,

EROSION AND/OR SEDIMENT CONTROL MEASURES, SOILS STUDIES, TESTING, AND INSPECÏION.

PUBLIC WATER IMPROVEMENTS INCLUDING WATER MAINS FOR DOMESTIC AND

IRRIGATION PURPOSES, VALVES, FITTINGS, CONNECTIONS, SERVICES, METERS, AND FIRE HYDRANTS.

PUBLIC SEWER IMPROVEMENTS INCLUDING SEWER MAINS, MANHOLES, CLEAN OUTS,

CONNECTIONS, SERVICES, AND ANY NECESSARY SEWAGE LIFT STATIONS, FORCE MAINS, AND DISCHARGE STRUCTURES.

PUBLIC STORM DRAIN IMPROVEMENTS INCLUDING STORM DRAIN PIPING, MANHOLES, JUNCTION BOXES, INLETS, OUTLETS, BASINS, AND PERIMETER FENCING.

PUBLIC STREET IMPROVEMENTS INCLUDING CURBS, GUTTERS, CROSS GUTTERS,

SPANDRELS, SIDEWALKS, WHEELCHAIR RAMPS, OTHER PEDESTRIAN FACILITIES,

MEDIANS, STREET SECTION AND PAVING IMPROVEMENTS, STREET LIGHTING, STREET

SIGNS, BARRICADES, FENCING AND/OR GATES, TRAFFIC SIGNS, MARKINGS, STRIPING,

BEACONS, AND SIGNALS,

PUBLIC UTILITIES THAT SUPPLY ELECTRICAL POWER, NATURAL GAS, CABLE TV,

INTERNET, PHONE, AND FIBER OPTIC SERVICE FOR EACH PROPOSED LOT, STRUCTURE, OR PUBLIC USE.

PUBLIC LANDSCAPING IMPROVEMENTS ALONG STREETS AND WITHIN MEDIANS, PASEOS,

AND NATURAL TRAILS INCLUDING EARTHWORK AND GRADING, SOIL AMENDMENTS,

PLANTS & FOLIAGE, GROUND COVER, SPRINKLERS AND RELATED TIMERS AND

CONTROLLERS, WALLS, SEATING, LIGHTING, WALKABLE PATHS, AND RELATED INFRASTRUCTURE.

WHERE PROPOSED BY THE DEVELOPER, PUBLIC PARK IMPROVEMENTS INCLUDING ANY

AND ALL OF THE IMPROVEMENTS LISTED ABOVE AND ALSO INCLUDING, BUT NOT LIMITED

TO, SEATING, TABLES, SHADE STRUCTURES, TRASH RECEPTACLES, WATER FOUNTAINS,

PLAY STRUCTURES, RELATED SURFACING, PLAY AREAS, OPEN AREAS, PUBLIC FACILITIES, AND LIGHTING.

A SUFFICIENT QUANTITY OF CLUSTER MAILBOX UNITS WITH FOUNDATIONS,

APPROPRIATE CLEARANCE, AND WALKABLE SURFACING, UNITS SHALL BE APPROVED BY THE LOCAL POSTAL AUTHORITY FOR USE.
a
a
a
a
a
o
a
a
a
t7 236.000 12\30 429 610. 1
Exhibit C-2

IMPROVEMENTS SHALL ALSO INCLUDE ANY AND ALL NECESSARY IMPROVEMENTS OR

UPGRADES TO OR REROUTING OF PRE-EXISTING PUBLIC OR PRIVATE FACILITIES OR UTILITIES AS DETERMINED BY THE FACILITY OR UTILITY OWNER. IMPROVEMENTS SHALL

INCLUDE PROTECTION OR PRESERVATION OF PRE-EXISTING PUBLIC OR PRIVATE

FACILITIES THAT WILL NOT BE RELOCATED, MODIFIED, OR REMOVED,

IMPROVEMENTS SHALL INCLUDE ANY EASEMENTS, GRANT DEEDS, COVENANTS, DEDICATIONS, OR NECESSARY RIGHTS OF WAY FOR SAID IMPROVEMENTS. DIMENSIONS

OF EASEMENTS, GRANT DEEDS, COVENANTS, DEDICATIONS, OR NECESSARY RIGHTS SHALL BE APPROVED BY THE CITY.

IMPROVEMENT SHALL INCLUDE ALL APPROPRIATE AND NECESSARY PERMITS REQUIRED BY LOCAL, STATE, OR FEDERAL LAW.
a
a
a
1 7 23 6.000 12\30 429 6 1 0. 1
Exhibit C-3
EXHIBIT "C"
SURETY BONDS AND OTHER SECURITY. TRACT 7318 PHASE 1
As evidence of understanding the provisions contained in this Agreement, and of the Develope/s intent to comply with same, the Developer has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto:

PERFORMANCE BOND PRINCIPAL AMOUNT: THREE HUNDRED THIRTY THOUSAND DOLLARS AND NO CENTS ($330,000.00******)
Surety:

Attorney-in-fact:

Address:

MATERIAL AND LABOR BOND PRINCIPAL AMOUNT: THREE HUNDRED THIRTY THoUSAND DOLLARS AND NO CENTS ($330,000.00******)
Surety:

Attorney-in-fact:

Address:

MONUMENT SECURITY (CASH OR BOND): THREE THOUSAND SEVEN HUNDRED FIFTy DOLLARS AND NO CENTS ($3,750.00******)
1 7 23 6.000 12\30 429 6 I 0. 1
Exhibit C-4
BOND NO.

INITIAL PREMIUM:

SUBJECT TO RENEWAL

CITY OF SHAFTER
TRACT 7318 PHASE 1 IMPROVEMENTS

PERFORMANCE BOND

KNOW ALL MEN BY THESE PRESENTS
WHEREAS the City of Shafter, California ("City") and KC BUILDERS COLLABORATIVE LLC ("Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for TRACT 7318 PHASE I ("Public lmprovements"); WHEREAS, the Public lmprovements to be performed by Principal are more particularly set forth in that certain Agreement for Completion of Pubic lmprovements dated ("lmprovement Ag reement");
WHEREAS, the lmprovement Agreement is hereby referred to and incorporated herein by reference; and WHEREAS, Principal is required by the lmprovement Agreement to provide a good and sufficient bond for performance of the lmprovement Agreement, and to guarantee and warranty the Public lmprovements constructed thereunder,
N0W, THEREFORE, Principal and ("Surety"),
acorporationorganizedandexistingunderthelawsoftheStateof-,and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City in the sum of THREE HUNDRED THIRTY THOUSAND DOLLARS AND NO CENTS ($330,000.00******), said sum being not less than one hundred percent (100%) of the total cost of the Public lmprovements as set forth in the lmprovement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents, THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the lmprovement Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harmless City, its officers, employees, and agents, as stipulated in the lmprovement Agreement, then this obligation shall become null and void; othenruise it shall be and remain in full force and effect.

As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. | 7 23 6.000 12\30 429 6 1 0. 1
Exhibit C-5
By:

This bond is executed and filed to comply with Section 66499 et ggq. of the Government Code of California as security for performance of the lmprovement Agreement and security for the one-year guarantee and warranty of the Public lmprovements.
lN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at -,
this
-
day of
-,
-.

Principal Surety
By
President Attorney-in-Fact
(print name) (print name)
NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL

AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL

REPRESENTATIVES OF THE BONDING COMPANY MUST BE ATTACHED TO THIS BOND.

I 7 23 6.000 1 2\30 429 6 1 0. 1
Exhibit C-6

BOND NO,
INITIAL PREMIUM:

SUBJECT TO RENEWAL

CITY OF SHAFTER
TRACT 7318 PHASE 1 IMPROVEMENTS

LABOR AND MATERIAL BOND

NOW, THEREFORE, Principal and ("Surety"), a corporation organizedandexistingunderthelawsoftheStateof-,anddulyauthorizedto transact business under the laws of the State of California, are held and firmly bound unto City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the Public lmprovements, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to the Public lmprovements to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid excepting the Principal, the sum of THREE HUNDRED THIRTY THOUSAND DOLLARS AND NO CENTS ($330,000.00******)said sum being not less than 100% of the total cost of the Public lmprovements under the terms of the lmprovement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents.

THE CONDITION 0F THIS OBLIGATION lS SUCH that if the Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Public lmprovements, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 3181, or amounts due under the Unemployment lnsurance Code with respect to work or labor performed by 1723 6.000 12\30 429 6 t0 1
Exhibit C-7
any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment lnsurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein, As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.

This bond is executed and filed to comply with Section 66499 et ggq. of the California Government Code as security for payment to contractors, subcontractors, and persons furnishing labor, materials, or equipment for construction of the Public lmprovements or performance of the lmprovement Agreement, lt is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 15 (commencing with Section 3082) of Part 4 of Division 3 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.

I 7 23 6.000 1 2\30 429 6 1 0. 1
Exhibit C-8
By:
lN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at -,
this day of
-,
-.

Principal Surety
By:

President Attorney-in-Fact
(print name) (print name)

NOTE APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION BY PRINCIPAL

AND SURETY, AND A COPY OF THE POWER OF ATTORNEY TO LOCAL

REPRESENTATIVES OF THE BONDING COMPANY MUST BE ATTACHED TO THIS BOND.
1 7 2t 6.000 12\30 429 6 1 0. 1
Exhibit C-9

RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:

CIÏY OF SHAFTER
336 Pacific Avenue
Shafter, California 93263
ATTN: City Engineer
from record r Government
Section 6103

CITY OF SHAFTER
USE
By
City Clerk

AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS
TRACT 7318 PHASE 2
Between
CITY OF SHAFTER, A CALIFORN¡A MUNICIPAL CORPORATION
and

KC BUILDERS COLLABORATIVE LLC
t7 23 6.000 12\30429 610. 1

AGREEMENT FOR COMPLETION OF PUBLIC IMPROVEMENTS
TRACT 7318 PHASE 2
Pmn¡s nlo Dlrr.

This Agreement for the Completion of Public lmprovements ("Agreement") is entered into as of this day of by and between the City of Shafter, a
California municipalcorporation and chartercity ("City")and KC BUILDERS COLLABORATIVE LLC with its principal office located at 10800 STOCKDALE HIGHWAY, SUITE 101, BAKERSFIELD, CA 93311 ("Developer"), City and Developer are sometimes hereinafter individually refened to as "Party" and hereinafter collectively referred to as the "Parties."
ll. Recmls.

A. On AUGUST 15,2016, Millennium Homes LLC submitted to City an application for approval of a tentative map for real property located within City, a legal description of which is attached hereto as Exhibit "4" ("Property"), The tentative map was prepared on behalf of Millennium Homes LLC by DEWALT CORPORATION, and is identified in City records as TRACT 7318 PHASE 2.

B. The application for a tentative map for TRACT 7318 PHASE 2 submitted by Millennium Homes LLC was deemed complete on MAY 17,2017. 0n JULY 18,2017, the SHAFTER CITY COUNCIL conditionally approved Developer's application for a tentative map for TRAGT 7318 PHASE 2.

C. Developer has not completed all of the work or made all of the public improvements required by the Shafter Municipal Code (Title 16-Subdivisions), the Subdivision Map Act (Government Code sections 66410 et Sgq.) ("Map Act"), the conditions of approval for TRACT 7318 PHASE 2, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.

E. Develope/s execution of this Agreement and the provision of the security are made in consideration of City's approval of the final map for TRACT 7318 PHASE 2. 1'7 23 6.000 12\30 4296 10. 1 1
lll. Trnus.
3,1 Effectiveness. This Agreement shall not be effective unless and until all three of the following conditions are satisfied: (a) Developer provides City with security of the type and in the amounts required by this Agreement; (b) Developer executes and records this Agreement in the Recorder's Office of the County of Kern; (c) the City Council of the City ("City Council") approves the final map for TRACT 7318 PHASE 2 and (d) Developer records the final map for TRACT 7318 PHASE 2 in the Recorde/s Office of the County of Kern. lf the above described conditions are not satisfied, this Agreement shall automatically terminate without need of further action by either City or Developer, and Developer may not thereafter record the final map for TRACT 7318 PHASE 2.

3.2 Public lmprovements. Developer shall construct or have constructed at its own cost, expense, and liability all improvements required by City as part of the approvalof TRACT 7318 PHASE 2, including, but not limited to, all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, water mains and services, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities as shown in detail on the plans, profiles, and specifications which have been prepared by or on behalf of Developer for TRACT 7318 PHASE 2 ("Public lmprovements"), The Public lmprovements are more specifically described in Exhibit "B," which is attached hereto and incorporated herein by this reference. Construction of the Public lmprovements shall include any transitions and/or other incidental work deemed necessary for drainage or public safety. The Developer shall be responsible for the replacement, relocation, or removal of any component of any irrigation water system in conflict with the construction or installation of the Public lmprovements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water system, Developer further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public lmprovements.

3.2.2 Permits: Notices: Utilitv Statements. Prior to commencing any work, Developer shall, at its sole cost, expense, and liability, obtain all necessary permits and licenses and give all necessary and incidental notices required for the lawful construction of the Public lmprovements and performance of Develope/s obligations under this Agreement. Developer shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or license issued to Developer, Prior to commencing any work, Developer shall file a written statement with the City Clerk and the City Engineer, signed by Developer and each utility which will provide utility service to the Property, attesting that Developer has made all deposits legally required by the utility for the extension and provision of utility service to the Property,

3.2.3 Pre-approval of Plans and Specifications, Developer is prohibited from commencing work on any Public lmprovement until all plans and specifications for such Public lmprovement have been submitted to and approved by the City Engineer, or his or her designee, Approval by the City t'723 6.000 12\30 429 6 10. I 2
Engineer shall not relieve Developer from ensuring that all Public lmprovements conform with all other requirements and standards set forth in this Agreement,

3.2.4 Quality of Work: Comoliance With Laws and Codes. The construction plans and specifications for the Public lmprovements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public lmprovements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced.

3.2.6 Alterations to lmprovements The Public lmprovements in Exhibit "8" are understood to be only a general designation of the work and improvements to be done, and not a binding description thereof, Allwork shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. lf during the course of construction and installation of the Public lmprovements it is determined that the public interest requires alterations in the Public lmprovements, Developer shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public lmprovements to be completed may be accomplished without giving prior notice thereof to Developer's surety for this Agreement.

3.3 Maintenance of Public lmprovements and Landscapinq. City shall not be responsible or liable for the maintenance or care of the Public lmprovements until City approves and accepts them. City shall exercise no controloverthe Public lmprovements until accepted. Any use by any person of the Public lmprovements, or any portion thereol shall be at the sole and exclusive risk of the Developer at all times prior to City's acceptance of the Public lmprovements. Developer shall maintain all the Public lmprovements in a state of good repair until they are completed by Developer and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, sewers, and storm drains; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements, lt shall be Develope/s responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. lf Developer fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public lmprovements or their condition prior to acceptance.

I 7 23 6.000 t2\30 429 6 1 0. 1 3

3.4.1 Extensions, City may, in its sole and absolute discretion, provide Developer with additional time within which to complete the Public lmprovements. lt is understood that by providing the security required under Section 13,0 et seq, of this Agreement, Developer and its surety consent in advance to any extension of time as may be given by City to Developer, and waives any and all right to notice of such extension(s), Developer's acceptance of an extension of time granted by City shall constitute a waiver by Developer and its surety of all defense of laches, estoppel, statutes of limitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public lmprovements were to have been completed hereunder, ln addition, as consideration for granting such extension to Developer, City reserves the right to review the provisions of this Agreement, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Developer, and to require adjustments thereto when warranted according to City's reasonable discretion.

3.4.2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not accrue until Developer has provided the City Engineer with written notice of Developer's intent to abandon or othenruise not complete required or agreed upon Public lmprovements.

3.5 Gradino, Developer agrees that any and all grading done or to be done in conjunction with construction of the Public lmprovements or development of TRACT 7318 PHASE 2 shall conform to all federal, state, and local laws, ordinances, regulations, and other requirements, including City's grading regulations. ln order to prevent damage to the Public lmprovements by improper drainage or other hazards, the grading shall be completed in accordance with the time schedule for completion of the Public lmprovements established by this Agreement, and prior to City's approval and acceptance of the Public lmprovements and release of the Security as set forth in Section 13.0 et ggq. of this Agreement.

3.6 Utilities. Developer shall provide utility services, including water, power, gas, and telephone service to serve each parcel, lot, or unit of land within TRACT 7318 PHASE 2 in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services, Except for commercial or industrial properties, Developer shall also provide cable television facilities to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City's jurisdictional limits. All utilities shall be installed underground.

3.7 Fees and Charqes, Developer shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of construction of the Public lmprovements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City relative to TRACT 7318 PHASE 2,
3,8 Citv lnspection of Public lmprovements. Developer shall, at its sole cost, expense, and liability, and at all times during construction of the Public lmprovements, maintain reasonable and safe 1 7 23 6.0 00 t2\30 429 6 1 0. I 4
facilities and provide safe access for inspection by City of the Public lmprovements and areas where construction of the Public lmprovements is occurring or will occur. lV. Drrrulr;Norrce;R¡m¡ol¡s.

4.1 Notice. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation ("Notice"). Developer shall substantially commence the work required to remedy the default or violation within ten (10) days of the Notice, lf the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice verbally, and Developer shall substantially commence the required work within twenty-four (24) hours thereof. lmmediately upon City's issuance of the Notice, Developer and its surety shall be liable to City for all costs of construction and installation of the Public lmprovements and all other administrative costs expenses as provided for in Section 10.0 of this Agreement,

4.2 Failure to Remedv: City Action. lf the work required to remedy the noticed default or violation is not diligently prosecuted to a completion acceptable to City within the time frame contained in the Notice, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation.

All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Developer and its surety, without the necessity of giving any further notice to Developer or surety. City's right to take such actions shall in no way be limited by the fact that Developer or its surety may have constructed any, or none of the required or agreed upon Public lmprovements at the time of City's demand for performance. ln the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Developer or its surety to cease in order to allow adequate coordination by City.

4.3 Other Remedies. No action by City pursuant to Section 9,0 et ggq. of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law, City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies, City may institute an action for damages, injunctive relief, or specific performance.

4.4 Administrative Costs. lf Developer fails to construct and install all or any part of the Public lmprovements within the time required by this Agreement, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney's fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law,

4.5 Acceptance of lmprovements: As-Built or Record Drawinqs, lf the Public lmprovements are properly completed by Developer and approved by the City Engineer, and if they comply with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements, the City 1723 6.000 t2\30 429 610. I 5
Council shall be authorized to accept the Public lmprovements. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public lmprovements prior to such time as all of the Public lmprovements are complete, which shall not release or modify Developer's obligation to complete the remainder of the Public lmprovements within the time required by this Agreement. Upon the total or partial acceptance of the Public lmprovements by City, Developer shall file with the Recorder's Office of the County of Kern a notice of completion for the accepted Public lmprovements in accordance with California Civil Code section 3093, at which time the accepted Public lmprovements shall become the sole and exclusive property of City without payment therefor. lf TRACT 7318 PHASE 2 was approved and recorded as a single phase map, City shall not accept any one or more of the improvements until all of the Public lmprovements are completed by Developer and approved by City. lssuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City's acceptance or approval of any Public lmprovements, Notwithstanding the foregoing, City may not accept any Public lmprovements unless and until Developer provides one (1) set of "as-built" or record drawings or plans to the City Engineer for all such Public lmprovements. The drawings shall be certified and shall reflect the condition of the Public lmprovements as constructed, with allchanges incorporated therein.

4.6 Warranty and Guarantee Developer hereby warrants and guarantees all Public lmprovements (including MH lmprovements) against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of all landscaping within the Property in a vigorous and thriving condition reasonably acceptable to City, for a period of one (1) year following completion of the work and acceptance by City ("Warranty"). During the Warranty, Developer shall repair, replace, or reconstruct any defective or othenruise unsatisfactory portion of the Public lmprovements, in accordance with the cunent ordinances, resolutions, regulations, codes, standards, orother requirements of City, and to the approval of the City Engineer, All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Developer and its surety, As to any Public lmprovements which have been repaired, replaced, or reconstructed during the Warranty, Developer and its surety hereby agree to extend the Warranty for an additional one (1) year period following City's acceptance of the repaired, replaced, or reconstructed Public lmprovements, Nothing herein shall relieve Developerfrom any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public lmprovement following expiration of the Warranty or any extension thereof. Develope/s warranty obligation under this section shall survive the expiration or termination of this Agreement.

4.7 Securitv: Suretv Bonds. Priorto execution of this Agreement, Developer shall provide City with surety bonds in the amounts and under the terms set forth below ("Security"). The amount of the Security shall be based on the City Engineer's approximation of the actual cost to construct the Public lmprovements, including the replacement cost for all landscaping ("Estimated Costs"), lf City determines, in its sole and absolute discretion, that the Estimated Costs have changed, Developer shall adjust the Security in the amount requested by City. Develope/s compliance with this provision (Section 13.0 et ggq.) shall in no way limit or modify Develope/s indemnification obligation provided in Section 16.0 of this Agreement,

4.7.1 Performance Bond. To guarantee the faithful performance of the Public lmprovements and all the provisions of this Agreement, to protect City if Developer is in default as set forth in Section 8.0 et ggq, of this Agreement, and to secure Develope/s one-year guarantee and warranty of the Public lmprovements, including the maintenance of all landscaping in a vigorous and thriving condition, Developer shall provide City a faithful performance bond in the amount of TWO HUNDRED FIVE THOUSAND D0LLARS AND N0 CENTS ($205,000.00******)which sum shall be not less than one hundred percent (100%) of the Estimated Costs, The City Council may, in its sole and absolute discretion and upon t'| 236.000 t2\30 4296 1 0. 1 6
recommendation of the City Engineer, partially release a portion or portions of the security provided under this section as the Public lmprovements are accepted by City, provided that Developer is not in default on any provision of this Agreement or condition of approval for TRACT 7318 PHASE 2, and the total remaining security is not less than twenty-five percent (25%) of the Estimated Costs. All security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 12 of this Agreement, provided that Developer is not in default on any provision of this Agreement or condition of approval for TRACT 7318 PHASE 2.

4.7.2 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for performance of the Public lmprovements and this Agreement, Developer shall provide City a labor and materials bond in the amount of TWO HUNDRED FIVE THOUSAND DOLLARS AND N0 CENTS ($205,000,00******) which sum shall not be less than one hundred percent (100%)of the Estimated Costs. The security provided underthis section may be released by written authorization of the City Engineer after six (6) months from the date City accepts the final Public lmprovements. The amount of such security shall be reduced by the total of all stop notice or mechanic's lien claims of which City is aware, plus an amount equal to twenty percent (200/o) of such claims for reimbursement of City's anticipated administrative and legal expenses arising out of such claims,

4.7.3 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best's rating of no less than A-:Vll, shall be licensed to do business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Developer or its surety shall secure the costs and reasonable expenses and fees, including reasonable attorney's fees and costs, incurred by City in enforcing the obligations of this Agreement.

4.7 .4 Evidence and lncorporation of Security, Evidence of the Security shall be provided on the forms set forth in Exhibit "C," unless other forms are deemed acceptable by the City Engineer, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Exhibit "C" and incorporated herein by this reference.

4.8 Monument Securitv. Prior to City's execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for TRACT 7318 PHASE 2 in compliance with the applicable provisions of City's Municipal and/or Development Code ("Subdivision Monuments"), Developer shall deposit cash with City in the amount of THREE THOUSAND SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($3,750.00******)which sum shall not be less than one hundred percent (100%) of the costs of setting the Subdivision Monuments as determined by the City Engineer. Said cash deposit may be released by written authorization of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of payment in full from the engineer or surveyor who set the Subdivision Monuments, and provided Developer is not in default of any provision of this Agreement orcondition of approvalforTRACT 7318 PHASE 2,

4.9 Lien. To secure the timely performance of Develope/s obligations under this Agreement, including those obligations for which security has been provided pursuant to Sections 13 et gg, and 14 of 17 23 6.000 1 2\30 429 6 1 0. 1 7
this Agreement, Developer hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other governmental agency for a public purpose, As to Develope/s default on those obligations for which security has been provided pursuant to Sections 13 et ggq. and 14 of this Agreement, City shall first attempt to collect against such security prior to exercising its rights as a contract lienholder under this section.

4.10 lndemnification Developer shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Developer, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Public lmprovements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/or agents for all legal expenses and costs incurred by each of them, This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the negligence or willful misconduct of Agency as determined by a court or administrative body of competent jurisdiction, Develope/s obligation to indemnify shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents.

4.11 Public Works Determination Developer has been alerted to the requirements of California Labor Code section 1770 el seq., including, without limitation S.B. 975, which require the payment of prevailing wage rates and the performance of other requirements if it is determined that this Agreement constitutes a public works contract. lt shall be the sole responsibility of Developer to determine whether to pay prevailing wages for any or all work required by this Agreement. As a material part of this Agreement, Developer agrees to assume all risk of liability arising from any decision not to pay prevailing wages for work required by this Agreement.

V. llsuRtlce.

5.1 Tvpes: Amounts. Developer shall procure and maintain, and shall require its contractors to procure and maintaín, during construction of any Public lmprovement pursuant to this Agreement, insurance of the types and in the amounts described below ("Required lnsurance"). lf any of the Required lnsurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit.

5.1.1 General Liabilitv. Developer and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage.

5.1.2 Business Automobile Liabilitv, Developer and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence, Such insurance shall include coverage for the ownership, operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible.
1723 6.000 12\30 429 61 0. 1 I

5.1.3 Workers' Compensation, Developer and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $1,000,000 per occurrence, at all times during which insured retains employees.

5.1.4 Professional Liability. For any consultant or other professional who will engineer or design the Public lmprovements, liability insurance for errors and omissions with limits not less than $1,000,000 per occurrence, shall be procured and maintained for a period of five (5) years following completion of the Public lmprovements. Such insurance shall be endorsed to include contractual liability.

5.2 Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: (a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or (b) Developer and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.

5.3 Additional lnsured: Separation of lnsureds. The Required lnsurance shall name City, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Developer or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required lnsurance shall contain standard separation of insureds provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers.
5,4 Primarv lnsurance: Waiver of Subroqation. The Required lnsurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, agents, and volunteers. All policies for the Required lnsurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy,

5.5 Certificates: Verification. Developer and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required lnsurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time,
5,6 Term: Cancellation Notice. Developer and its contractors shall maintain the Required lnsurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date, All policies shall be endorsed to provide that the Required lnsurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 30 days prior written notice to City,

5.8 Sions and Advertisino. Developer understands and agrees to City's ordinances, regulations, and requirements governing signs and advertising structures, Developer hereby agrees with and consents to the removal by City of all signs or other advertising structures erected, placed, or situated in violation of o 17 23 6.000 t2\30429 61 0. 1
any City ordinance, regulation, or other requirement, Removal shall be at the expense of Developer and its surety, Developer and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal,

5.9 Relationshio Between the Parties. The Parties hereby mutually agree that neither this Agreement, any map related to TRACT 7318 PHASE 2, nor any other related entitlement, permit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Developer. Develope/s contractors and subcontractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City.

Vl. GrHeRru PRovrsrons.
6,1 Authority to Enter Asreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party.

6.2 Cooperation: FurtherActs. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement.

6.3 Construction: References: Captions. lt being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days, All references to Developer include all personnel, employees, agents, and subcontractors of Developer, except as othenruise specified in this Agreement, All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement,

CITY:

CITY OF SHAFTER
336 PACIFIC AVENUE
SHAFTER, CALIFORNIA 93263
ATTN:CITY ENGINEER
DEVELOPER:

KC BUILDERS COLLABORATIVE LLC
1O8OO STOCKDALE HIGHWAY, SUITE 101,
BAKERSFIELD, CA 93311
Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent; by messenger, as of the date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U.S. Mail.
17 23 6.000 1 2\30 429 6 | 0. 1 10

6.5 Amendment: Modification, No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 6,6 Waiver. City's failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City's waiver of any breach of this Agreement, shall not relieve Developer of any of its obligations under this Agreement, whether of the same or similar type, The foregoing shall be true whether City's actions are intentional or unintentional, Developer agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or performance of the Public lmprovements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or performance of the Public lmprovements or this Agreement.

6.7 Assiqnment or Transfer of Aqreement, Developer shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer, Unless specifically stated to the contrary in City's written consent, any assignment, hypothecation, or transfer shall not release or discharge Developer from any duty or responsibility under this Agreement. 6,8 Bindinq Effect, Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation,

6.9 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties,

6.10 lnvalidity: Severability. lf any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
6,11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Kern, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding, Without limiting the generality of the foregoing waiver, Developer expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394.

6.12 Attornevs' Fees and Costs. lf any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by finaljudgment or arbitration award, shall be entitled to and recover from the other party all costs and expenses incuned by the prevailing party, including actual attorneys'fees ("Costs"), Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Costs, which shall include, without limitation, attorneys' and experts' fees, costs and expenses I 7 23 6. 000 1 2\30 429 6 1 0. I 11
incurred in the following: (a) post judgment motions and appeals, (b)contempt proceedings, (c)garnishment, levy, and debtor and third party examination, (d) discovery, and (e) bankruptcy litigation. This section shall survive the termination or expiration of this Agreement,

6.13 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument, 17 23 6.000 12\30 429 6 1 0. I 12

CITY OF SHAFTER KC BUILDERS COLLABORATIVE LLC
By: By:

By:
(title)
GabrielA. Gonzalez
City Manager
City of Shafter
(signature)
(print name)
ATTEST:

By:

Yazmina Pallares
City Clerk
City of Shafter
APPROVED AS TO FORM:

BEST BEST & KRIEGER LLP
(signature)
(print name)
(title)
By:

NOTE DEVELOPER'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE

ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS,

ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO DEVELOPER'S BUSINESS ENTITY.

I 7 23 6.000 12\30 429 6 1 0 . 1 13
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 attach and not the truthfu or valid of that document.

ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE 0F CALTFoRN|A )
COUNÏY OF
On 20 before me,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/he/their authorized capacity(ies), and that by his/he/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.
¡irgnatufe 01 Notary Puolrc

OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT " lndividual " Corporate Officer
Title(s) Title or Type of Document
Partne(s) Limited
General
Attorney-ln-Fact
Trustee(s)
Guardian/Conservator
Other:

Number 0f Pages
Date Of Document
Signer is representing:

Name 0f Person(s) Or Entity(ies)
1 7 23 6.000 t2\30 429 6 t 0. t
Signe(s) Oher Than Named Above
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 and not the truthful accu 0r of that document.

ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE 0F CALTFORNTA )

COUNTY OF
On .20 before me,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct, WITNESS my hand and officialseal.

Signature of Notary Publ¡c

OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.

CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT lndividual
Corporate Officer
Title(s) Title or Type of Doarment
Partne(s) Limited
General
Attorney-ln-Fact
Trustee(s)
Guardian/Conservator
Other:

Number Of Pages
Date Of Document
Signer is representing:

Name Of Penson(s) Or Entity(iæ)
1 7 23 6.000 12\30 429 6 10. 1
Signe(s) Oher Than Named Above
EXHIBIT'4"
LEGAL DESCRIPTION OF PROPERTY. TRACT 7318 PHASE 2
BEING A DIVISION OF A PORTION OF PARCEL A OF LOT LINE ADJUSTMENT 21-85 RECORDED

IN DOCUMENT NO KERN COUNTY
OFFICIAL RECORDS; ALSO BEING A PORTION 0F THE NORTHWEST QUARTER 0F SECTION 9, TOWNSHIP 28 SOUTH, RANGE 25 EAST, MOUNT DIABLO BASE & MERIDIAN, IN THE CITY OF SHAFTER, COUNTY OF KERN, STATE OF CALIFORNIA.

I 7 23 6.000 I 2\30 429 6 1 0. 1
Exhibit C-1

EXHIBIT'B''
LIST OF PUBLIC IMPROVEMENTS. TRACT 7318 PHASE 2

THE FOLLOWING LIST OF IMPROVEMENTS SHALL NOT BE CONSIDERED AS COMPLETE OR ALL

INCLUSIVE BUT SHALL SERVE AS A GENERAL DESCRIPTION OF IMPROVEMENTS REQUIRED FOR

RESIDENTIAL TRACTS, DEVELOPER'S ATTENTION IS DIRECTED TO THE CONDITIONS OF

ALL EARTHWORK AND GRADING INCLUDING REMOVAL AND DISPOSAL OF UNSUITABLE

MATERIALS, REMOVAL AND/OR RELOCATION OF OBSTRUCTIONS, IMPORT, EXPORT,

ROUGH GRADING, FINAL GRADING, EXCAVATION, TRENCHING, BACKFILLING,

COMPACTION, FOOTINGS, FOUNDATIONS, AND SUBGRADE PREPARATION,

OVEREXCAVATION, RECOMPACTION, RETAINING STRUCTURES, DUST CONTROL,

EROSION AND/OR SEDIMENT CONTROL MEASURES, SOILS STUDIES, TESTING, AND

INSPECTION,

PUBLIC WATER IMPROVEMENTS INCLUDING WATER MAINS FOR DOMESTIC AND

IRRIGATION PURPOSES, VALVES, FITTINGS, CONNECTIONS, SERVICES, METERS, AND FIRE HYDRANTS.

PUBLIC SEWER IMPROVEMENTS INCLUDING SEWER MAINS, MANHOLES, CLEAN OUTS,

CONNECTIONS, SERVICES, AND ANY NECESSARY SEWAGE LIFT STATIONS, FORCE MAINS,

AND DISCHARGE STRUCTURES,

PUBLIC STORM DRAIN IMPROVEMENTS INCLUDING STORM DRAIN PIPING, MANHOLES,

JUNCTION BOXES, INLETS, OUTLETS, BASINS, AND PERIMETER FENCING,