TCAG Services Agreement Regional Early Action Planning Grant Program

TCAG SERVICES AGREEMENT FORM
REVISION APPROVED 05/10/2018

TULARE COUN

TY ASSOCIATION OF GOVERNMENTS

SERVICES AGREEMENT
Regional Early Action Planning Grant Program

Page 1 ends

THIS AGR
EEMENT (“Agreement”) is entered into effective as of July 1, 2021, between the TULARE COUNTY ASSOCIATION OF GOVERNMENTS, a joint powers authority established under the laws of the State of California (“ TCAG”), and the CITY OF ________________ _, a California Municipal Corporation] (“CON- TRACTOR”). TCAG and CONTRACTOR is each a “Party” and together are the “Parties” to this Agreement, which is made with reference to the following:

A. WHEREAS, the Fresno Council of Governments (“FCOG”) received a local government planning support grant and executed an Agreement with the State of California’s Department of Housing and Com- munity Development in the amount of $10,218,830.75 on August 20, 2020 (the “REAP Grant Agreement”, which is attached as Attachment A) on behalf of the eight regional planning agencies within the San Joaquin Valley (the “COGs”) to provide local jurisdictions with grant funding for technical assistance, preparation and adoption of planning documents, and process improvements to accelerate housing production and facilitate compliance to implement the sixth cycle of the Regional Housing Need Assessment; and
B. WHEREAS, in furtherance of the purposes of the grant, the COGs entered into a Memorandum of Understanding as of November 19, 2020 and amended that Memorandum of Understanding effective as of July 1, 2021 (together, the “REAP MOU”, which is attached as Attachment B) whereby FCOG was named as the fiscal agent for the grant on behalf of the COGs, and in turn agreed to distribute grant funds to each of the COGs in proportion to each COG’s relative population as of January 2020; and C. WHEREAS
, TCAG expects to receive approximately $1,613,803 of such grant funds under the REAP MOU, will use $225,000 of such funds to prepare the Regional Housing Need Assessment Plan and provide technical assistance and regional planning coordination for the provision of housing , and has agreed to suballocate the balance of said grant funds to the County of Tulare and to each of the Cities within Tulare County (the “member agencies”) to carry out the purposes of the grant , with each member agency to receive a base amount of $100,000 and the remaining suballocated funds to be distributed based on each member agency’s percentage of population within Tulare County; and D. WHEREAS, CONTRACTOR is willing and able to util ize its share of such funds, the amount and distribution of which TCAG will confirm in writing, for the permitted purposes, and TCAG is willing to make such funds available to CONTRACTOR under the terms of this Agreement.

NOW, THER
EFORE, THE PARTIES AGREE AS FOLLOWS:

1. TERM: This
Agreement becomes effective as of July 1, 2021, and expires at 11:59 PM on December 31, 2024, unless its term is extended by written amendment or it is earlier terminated as provided below.

2.SERVICES: CONTRACTOR shall provide the services shown in the attached Attachment C.

3. REAP Gr
ant Agreement and REAP MOU: The terms and conditions of the REAP Grant Agreement and of the REAP MOU are hereby incorporated into and made a part of this Agreement and CONTRACTOR shall abide by said terms and conditions in its performance under this Agreement.

4. INSURANCE: Before approval of this Agreement by TCAG, CONTRACTOR must file with the Clerk of the Board of Governors of TCAG evidence of the required insurance as set forth in the attached Attachment D.

TCAG SERVICES AGREEMENT FORM
REVISED 05/10/2018

TULARE C

OUNTY ASSOCIATION OF GOVERNMENTS

SERVICES AGREEMENT
Regional Early Action Planning Grant Program

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5. GENERAL AGREEMENT TERMS AND CONDITIONS: TCAG ’S “General Agreement Terms and C ondi- tions” are hereby incorporated by reference and made a part of this Agreement as if fully set forth herein.

TCAG’S “General Agreement Terms and Conditions” are included in the attached Attachment E.

6. NOTICE
S: (a) Except as may be otherwise required by law, any no�ce to be given must be writen and must be either personally delivered, sent by facsimile transmission, or sent by ﬁrst class mail, postage prepaid and addressed as follows:

TCAG:

Atn
: Ted Smalley
210 N. Church Street, Suite B
Visalia, CA 93291
Phone No.: (559) 623-0450
Fax No.: (559) 733-6720
CONTR
ACTOR:

Atn: ____________________________
________________________________
________________________________
________________________________
________________________________
(b) No�c
e personally delivered is eﬀec�ve when delivered. No�ce sent by facsimile transmission is deemed to be received upon successful transmission. No�ce sent by ﬁrst class mail will be deemed re- ceived on the ﬁ�h calendar day a�er the date of mailing. Either Party may change the above address by giving writen no�ce under this sec�on.

7. SUBCONTRACTING: If this box is checked , CONTRACTOR has indicated it will utilize subcontractors to provide certain ser vices related to this Agreement. CONTRACTOR has selected the following subcon- tractors (“Subcontractors”) to provide the goods or services related to this Agreement: N/A. CONTRACTOR will supervise all Subcontractors and ensure that Subcontractors comply with all applicable laws and reg- ulations. CONTRACTOR will include all applicable provisions of this Agreement in its contracts with Sub- contractors and ensure compliance with those provisions. No other subcontractors shall be utilized with- out prior written approval from the Executive Director of TCAG.

8. AUTHORITY: CONTRACTOR represents and warrants to TCAG that the individual(s) signing this Agree- ment on its behalf are duly authorized and have legal capacity to sign this Agreement and bind CONTRAC- TOR to its terms. CONTRACTOR acknowledges that TCAG has relied upon this representation and warranty in entering into this Agreement.

9. COUNTERPARTS: The Parties may sign this Agreement in counterparts, each of which is an original and all of which taken together form one single document.

TCAG SERVICES AGREEMENT FORM
REVISED 05/10/2018

TULARE COUN

TY ASSOCIATION OF GOVERNMENTS

SERVICES AGREEMENT
Regional Early Action Planning Grant Program

Page 3 ends

THE PARTIES, having read and considered the above provisions, indicate their agreement by their au- thorized signatures below.

CITY OF _________________________________
Date: By
ATTEST: _______
__________________________
By

TULARE COUNTY ASSOCIATION OF GOVERNMENTS
Date: By
Ted Smalley
Executive Director
ATTEST: Le
slie Davis, Finance Director
By
Approve
d as to Form:

County Counsel
By
Deputy
Matter # 20
21557
Attachments
A = REAP Grant Agreement;
B = REAP MOU and Amendment No. 1;
C = Scope of Services;
D = Insurance Provisions;
E = TCAG’S General Agreement Te rms and Conditions.

Title:

ATTACHMENT A

REAP GRANT AGREEMENT (ATTACHED)
Exhibit A
Grant funding agreement number 19-REAP-14029
9/3/2020

Fresno Council of Governments
19-REAP-14029

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Rev.8/19/2020

EXHIBIT A
Regional Early Action Planning Grant Program (REAP)
NOFA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020

AUTHORITY, PURPOSE AND SCOPE OF WORK

1. Authority
The Local Government Planning Support Grants Program is established for the purpose of providing regions and jurisdictions with one-time funding, including grants for planning activities to enable jurisdictions to meet the sixth cycle of the regional housing needs assessment. Up to two hundred fifty million dollars ($250,000,000) shall be distributed under the program in accordance with Health and Safety Code sections 50515.02 and 50515.03. Of this amount, approximately one hundred twenty-five million dollars ($125,000,000) is available to councils of governments and other regional entities. The Department of Housing and Community Development (Department or HCD) shall administer the Program (referred to herein as the Regional Early Action Planning Grant Program, or “REAP”) to councils of governments and other regional entities in accordance with the Notice of Funding Availability (“NOFA”) pursuant to Health and Safety Code section 50515.04, subdivision (f).

Pursuant to Health and Safety Code section 50515.02, subdivision (d)(3), a council of governments or a fiscal agent of a multiagency working group, as defined in section 50515.02, may request up to 25 percent of its available funding in advance. This Standard Agreement authorizes the encumbrance of full funds available to the applicant pursuant to the NOFA, subject to all statutory requirements and all applicable provisions including the NOFA, initial application and award for advance payment, subsequent advance payment application and award, application and award for the full remaining fund amount and amendment to this agreement.

The Grantee shall consult with the Department on any amendment or other provision related to the implementation of the Program. The Department decisions related to the administration of the Program shall be final pursuant to Health and Safety Code section 50515.04, subdivision (g).

2. Purpose
In accor
dance with the authority cited above, the Grantee has been awarded financial assistance in the form of a grant from the Program. The Department has agreed to make the grant for planning activities pursuant to the NOFA and this Agreement. By entering into this Agreement and thereby accepting the award of the Program funds, the Grantee agrees to comply with the terms and conditions Fresno Council of Governments
19-REAP-14029

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Rev.8/19/2020

EXHIBIT A
Regional Early Action Planning Grant Program (REAP)
NOFA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
of the NOFA, this Agreement, subsequent amendments to this Agreement, the representations contained in the initial advance payment and subsequent full application(s), and the requirements of the authority cited above. Based on all representations made by the Grantee, the Department shall encumber the full amount pursuant the NOFA and provide advance payment and subsequent payments in accordance with Exhibit B. All terms, conditions and other relevant provisions will be subject to amendments as a result of subsequent applications and awards for remaining funds after the initial application up to 25 percent of the full amount described in Exhibit B.

3. Definitions
Term
s herein shall have the same meaning as defined by the NOFA.

4. Scope of Work
Gr
antee shall use the awarded funds in accordance with the approved Scope of Work as contained in the timeline and budget and related information outlined in the application for 25 percent advance payment and any subsequent applications for partial or full funding. The Scope of Work may be amended in compliance with statutory requirements subject to approval by the Department.

5. Monitoring
A. The Gr
antee shall maintain books, records, documents, and other evidence that demonstrates the funding was used for the appropriate purposes, as described in the Scope of Work, approved application, subsequent approved applications and all other pertinent documents.

These books, records, documents and other evidence shall be made available for audit and inspection by the Department at any point during the term of the agreement and subject to any amendments to this agreement.

B. The Depart
ment may request additional information, as needed, to meet the statutory requirements of the Program and facilitate amendments to this agreement, including but not limited to reporting or audit requirements, progress in implementing advance payment(s), or award of the full amount available to the Grantee.

Fresno Council of Governments
19-REAP-14029

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Rev.8/19/2020

EXHIBIT A
Regional Early Action Planning Grant Program (REAP)
NOFA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
C. The Department may monitor expenditures and activities of an applicant, as the Department deems necessary, to ensure compliance with statutory or Department requirements.

D. The Depart
ment may, as it deems appropriate or necessary, request the repayment of funds from an applicant, or pursue any other remedies available to it by law for failure to comply with statutory or Department requirements.

E. The Depart
ment’s decision to approve or deny an application or request for funding pursuant to the Program, and its determination of the amount of funding to be provided, shall be final.

F. Moni
toring provisions may be amended and are subject to additional provisions in accordance with this agreement or subsequent amendments.

6. Department Contract Coordinator
The Cont
ract Coordinator of this Agreement for the Department is the Housing Policy Development Manager, or the Manager’s designee. Unless otherwise informed, any notice, report, or other communication required by this Agreement shall be mailed by first class mail to the Department Contract Coordinator at the following address:

Depar
tment of Housing and Community Development
Housing Policy Development Division
Land Use Planning Unit
Attention: REAP Program Manager
2020 West El Camino Avenue, Suite 500
Sacramento, CA 95833
P. O. Box 952050
Sacramento, CA 94252-2050
Fresno Council of Governments
19-REAP-14029

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Rev. 8/19/2020

EXHIBIT B
Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: August 12, 2020

BUDGET DETAIL AND PAYMENT PROVISIONS

1. Application for Funds
A. The Depar
tment is entering into this Agreement on the basis of, and in reliance on facts, information, assertions and representations contained in any application and award and any subsequent modifications or additions thereto approved by the Department. All awarded applications for funding and any approved modifications and additions thereto are hereby incorporated into this Agreement.

B. The Gr
antee warrants that all information, facts, assertions and representations contained in any approved application and approved modifications and additions thereto are true, correct, and complete to the best of the Grantee’s knowledge. In the event that any part of an application and any approved modification and addition thereto is untrue, incorrect, incomplete, or misleading in such a manner that would substantially affect the Department's approval, disbursement, or monitoring of the funding and the grant or activities governed by this Agreement, the Department may declare a breach hereof and take such action or pursue such remedies as are provided for breach hereof.

2. Grant and Reimbursement Limit
A. The max
imum total amount encumbered to the Grantee pursuant to this Agreement shall not exceed $10,218,830.75.

B. This
Agreement authorizes an initial advance payment(s) for eligible activities as described in the application.

C. This
Agreement authorizes subsequent award amounts or advance payment up to the total award amount as described in Section 2A, of this Exhibit, and subject to Department approval.

D. The Gr
antee shall submit and follow a schedule for the expenditure of the advance payment, any subsequent payment and the total amount prior to Fresno Council of Governments
19-REAP-14029

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EXHIBIT B
Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: August 12, 2020
disbursement of funds. The schedule is subject to Department approval and may be revised as the Department deems necessary.

3. Grant Timelines
A. This A
greement is effective upon approval by the Department
representative’s signature on page one of the fully executed Standard Agreement, STD 213, (the “Effective Date”).

B. All Grant funds must be expended by December 31, 2023 pursuant to Health and Safety Code section 50515.04(c )(1).

C. The Grant
ee shall deliver to the Department all final invoices for reimbursement on or before November 1, 2023, to ensure the Department meets the December 31, 2023 expenditure deadline. Under special circumstances, approved by the Department, the Department may modify the November 1, 2023 deadline and may provide exception, including, but not limited to, advance payment to carry out the terms of this agreement.

D. It i
s the responsibility of the Grantee to monitor the project and timeliness of draws within the specified dates.

4. Allowable Uses of Grant Funds
A. The Depart
ment shall not award or disburse funds unless it determines that the grant funds shall be expended in compliance with the terms and provisions of the NOFA which includes associated forms and guidelines and this Agreement.

B. Grant
funds shall only be used by the Grantee for project activities approved by the State that involve planning activities in accordance with the NOFA.

C. G rant
funds may not be used for administrative costs of persons employed by the Grantee for activities not directly related to eligible activities.

D. The Grant
ee shall use no more than 5 percent of the total grant amount for costs related to administration of the project.

Fresno Council of Governments
19-REAP-14029

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EXHIBIT B
Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: August 12, 2020
E. A Grantee that receives funds under this Program may use a subcontractor and Grantee shall be accountable to the Department to ensure subcontractor’s performance. The subcontract shall provide for compliance with all the requirements of the Program. The subcontract shall not relieve the Grantee of its responsibilities under the Program.

F. Aft
er the contract has been executed by the Department and all parties, approved and eligible costs for eligible activities may be reimbursed for the project(s) upon completion of deliverables or paid in advance in accordance with the scope of work and subject to the terms and conditions of this Agreement.

G. Only approved and eligible costs incurred for work after October 1, 2019, continued past the date of execution and acceptance of the Standard Agreement and completed during the grant term will be reimbursable.

5. Performance
The Grant
ee will be subject to amendments to this section as a result of future applications and awards.

6. Fiscal Administration
A. The Grant
ee will be subject to amendments to this section as a result of subsequent applications and awards, in consultation with the Grantee.

B. It i
s mutually agreed that if the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall immediately terminate and be of no further force and effect. In this event, the State and Contractor shall be relieved of any and all obligations under this Grant Agreement.

C. If
funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the sole discretion to cancel this Agreement without cause, no liability occurring to the State, or amend the current Grant Agreement and amount allocated to Contractor.

Fresno Council of Governments
19-REAP-14029

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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NOF
A Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020

REAP TERMS AND CONDITIONS

1. Reporting
A. Dur
ing the term of the Standard Agreement the Grantee shall submit, upon request of the Department, a performance report that demonstrates satisfaction of all requirements identified in this Standard Agreement.

B. The Gr
antee will be subject to amendments to this section as a result of subsequent applications and awards.

2. Accounting Records
A. The Gr
antee, its staff, contractors and subcontractors shall establish and maintain an accounting system and reports that properly accumulate incurred project costs by line. The accounting system shall conform to Generally Accepted Accounting Principles (GAAP), enable the determination of incurred costs at interim points of completion, and provide support for reimbursement payment vouchers or invoices.

B. The Gr
antee shall establish a separate ledger account for receipts and expenditures of grant funds and maintain expenditure details in accordance with the scope of work, project timeline and budget. Separate bank accounts are not required.

C. The Gr
antee shall maintain documentation of its normal procurement policy and competitive bid process (including the use of sole source purchasing), and financial records of expenditures incurred during the course of the project in accordance with GAAP.

D. The Gr
antee agrees that the State or designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of the Standard Agreement.

E. Subc
ontractors employed by the Grantee and paid with moneys under the terms of this Standard Agreement shall be responsible for maintaining accounting records as specified above.

3. Audits
A. At
any time during the term of the Standard Agreement, the Department may Fresno Council of Governments
19-REAP-14029

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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NOF
A Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
perform or cause to be performed a financial audit of any and all phases of the award. At the Department’s request, the Grantee shall provide, at its own expense, a financial audit prepared by a certified public accountant. The State of California has the right to review project documents and conduct audits during and over the project life.
1) The Gr
antee agrees that the Department or the Department’s designee shall have the right to review, obtain, and copy all records and supporting documentation pertaining to performance of this Agreement. 2) The Gr
antee agrees to provide the Department or the Department’s designee, with any relevant information requested.
3) The Gr
antee agrees to permit the Department or the Department’s designee access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees who might reasonably have information related to such records and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with statutes, Program guidelines, and this Agreement.

B. If
a financial audit is required by the Department, the audit shall be performed by an independent certified public accountant. Selection of an independent audit firm shall be consistent with procurement standards contained in Exhibit D, Section 8 subsection A. of this Standard Agreement.
1) The Gr
antee shall notify the Department of the auditor's name and address immediately after the selection has been made. The contract for the audit shall allow access by the Department to the independent auditor's working papers.
2) The Gr
antee is responsible for the completion of audits and all costs of preparing audits.
3) If
there are audit findings, the Grantee shall submit a detailed response acceptable to the Department for each audit finding within 90 days from the date of the audit finding report.

C. The Gr
antee agrees to maintain such records for possible audit after final payment pursuant to Exhibit D, Section 3, subsection E. below, unless a longer period of records retention is stipulated.

Fresno Council of Governments
19-REAP-14029

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Rev. 8/19/2020

EXHIBIT D
Regional Early Action Planning Grants (REAP)
NOF
A Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
1) If
any litigation, claim, negotiation, audit, monitoring, inspection or other action has been started before the expiration of the required record retention period, all records must be retained by the Grantee, contractors and sub-contractors until completion of the action and resolution of all issues which arise from it. The Grantee shall include in any contract that it enters into in an amount exceeding $10,000.00, the Department’s right to audit the contractor’s records and interview their employees. 2) The Gr
antee shall comply with the caveats and be aware of the penalties for violation of fraud and for obstruction of investigation as set forth in California Public Contracts Code section 10115.10.

D. The deter
mination by the Department of the eligibility of any expenditure shall be final.

E. The Gr
antee shall retain all books and records relevant to this Agreement for a minimum of (3) three years after the end of the term of this Agreement. Records relating to any and all audits or litigation relevant to this Agreement shall be retained for five years after the conclusion or resolution of the matter.

4. Remedies of Non-performance
A. Any
dispute concerning a question of fact arising under this Standard Agreement that is not disposed of by agreement shall be decided by the Department’s Housing Policy Development Manager, or the Manager’s designee, who may consider any written or verbal evidence submitted by the Grantee. The decision of the Department’s Housing Policy Development Manager or Designee shall be the Department’s final decision regarding the dispute, not subject to appeal.

B. Nei
ther the pendency of a dispute nor its consideration by the Department will excuse the Grantee from full and timely performance in accordance with the terms of this Standard Agreement.

C. In t
he event that it is determined, at the sole discretion of the Department, that the Grantee is not meeting the terms and conditions of the Standard Agreement, immediately upon receiving a written notice from the Department to stop work, the Grantee shall cease all work under the Standard Agreement. The Department has the sole discretion to determine that the Grantee meets the terms and conditions after a stop work order, and to deliver a written notice to the grantee to resume work under the Standard Agreement.

Fresno Council of Governments
19-REAP-14029

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Rev. 8/19/2020

EXHIBIT D
Regional Early Action Planning Grants (REAP)
NOF
A Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
D. Both the Grantee and the Department have the right to terminate the Standard Agreement at any time upon 30 days written notice. The notice shall specify the reason for early termination and may permit the Grantee or the Department to rectify any deficiency(ies) prior to the early termination date. The Grantee shall submit any requested documents to the Department within 30 days of the early termination notice.

E. A st
rong implementation component for the funded activity through this Program is required, including, where appropriate, agreement by Grantee and its subcontractors to formally adopt or complete a planning or other activity consistent with the NOFA. The Grantee must carry out provisions to ensure the adoption or completion of activities in accordance with the NOFA, including activities subcontracted to localities. Grantee may be subject to repayment of the grant should the Grantee or any of its subcontractors under this agreement fail to adopt or complete activities set forth in its application, this Agreement or any amendments to this Agreement.

F. The fol
lowing shall each constitute a breach of this Agreement:
1) Gr
antee’s failure to comply with any term or condition of this Agreement. 2) Us
e of, or permitting the use of, grant funds provided under this Agreement for any ineligible costs or for any activity not specified and approved under this Agreement.
3) Any
failure to comply with the deadlines set forth in this Agreement unless approved by the Program Manager in writing.

G. In addi
tion to any other remedies that may be available to the Department in law or equity for breach of this Agreement, the Department may at its discretion, exercise a variety of remedies, including but not limited to:
1) Rev
oke existing REAP award(s) to the Grantee;
2) Requ
ire the return of unexpended REAP funds disbursed under this Agreement;
3) Requ
ire repayment of REAP Funds disbursed and expended under this agreement;
4) Seek
a court order for specific performance of the obligation defaulted upon, or the appointment of a receiver to complete the obligations in accordance Fresno Council of Governments
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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NOF
A Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
with the REAP Program requirements; and
5) Ot
her remedies available at law, by and through this agreement. All remedies available to the Department are cumulative and not exclusive. 6) The Depar
tment may give written notice to the Grantee to cure the breach or violation within a period of not less than 15 days.

H. The Gr
antee may be subject to amendment of this section as a result of subsequent applications and awards.

5. Indemnification
Nei
ther the Department nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by the Grantee, its officers, employees, agents, its contractors, its sub-recipients or its subcontractors under or in connection with any work, authority or jurisdiction conferred upon the Grantee under this Standard Agreement. It is understood and agreed that the Grantee shall fully defend, indemnify and save harmless the Department and all of the Department’s staff from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortuous, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by the Grantee, its officers, employees, agents contractors, sub-recipients, or subcontractors under this Standard Agreement.

6. Waivers
No w
aiver of any breach of this Agreement shall be held to be a waiver of any prior or subsequent breach. The failure of the Department to enforce at any time the provisions of this Agreement, or to require at any time, performance by the Grantee of these provisions, shall in no way be construed to be a waiver of such provisions nor to affect the validity of this Agreement or the right of the Department to enforce these provisions.

7. Relationship of Parties
It
is expressly understood that this Standard Agreement is an agreement executed by and between two independent governmental entities and is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship whatsoever other than that of an independent party.

8. Third -Party Contracts
Fresno Council of Governments
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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NOF
A Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
A. All sta
te-government funded procurements must be conducted using a fair and competitive procurement process. The Grantee may use its own procurement procedures as long as the procedures comply with all City/County laws, rules and ordinances governing procurement, and all applicable provisions of California state law.

B. Any
contract entered into as a result of this Agreement shall contain all the provisions stipulated in this Agreement and shall be applicable to the Grantee’s sub-recipients, contractors, and subcontractors. Copies of all agreements with sub-recipients, contractors, and subcontractors shall be submitted to the Department’s program manager.

C. The Depar
tment does not have a contractual relationship with the Grantee’s sub- recipients, contractors, or subcontractors, and the Grantee shall be fully responsible for monitoring and enforcement of those agreements and all work performed thereunder.

9. Compliance with State and Federal Laws, Rules, Guidelines and Regulations A. The Gr
antee agrees to comply with all state and federal laws, rules and regulations that pertain to construction, health and safety, labor, fair employment practices, equal opportunity, and all other matters applicable to the grant, the Grantee, its contractors or subcontractors, and any other grant activity.

B. Dur
ing the performance of this Agreement, the Grantee assures that no otherwise qualified person shall be excluded from participation or employment, denied program benefits, or be subjected to discrimination based on race, color, ancestry, national origin, sex, gender, gender identity, gender expression, genetic information, age, disability, handicap, familial status, religion, or belief, under any program or activity funded by this contract, as required by Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 USC 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975 and all implementing regulations.

C. The Gr
antee shall include the nondiscrimination and compliance provisions of this clause in all agreements with its sub-recipients, contractors, and subcontractors, and shall include a requirement in all agreements that each of them in turn include the nondiscrimination and compliance provisions of this Fresno Council of Governments
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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NOF
A Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
clause in all contracts and subcontracts they enter into to perform work under REAP.

D. The Gr
antee shall, in the course of performing project work, fully comply with the applicable provisions of the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. 12101 et seq.) E. T he Grantee shall adopt and implement affirmative processes and procedures that provide information, outreach and promotion of opportunities in the REAP project to encourage participation of all persons regardless of race, color, national origin, sex, religion, familial status, or disability. This includes, but is not limited to, a minority outreach program to ensure the inclusion, to the maximum extent possible, of minorities and women, and entities owned by minorities and women, as required by 24 CFR 92.351.

10. Litigation
A. If
any provision of this Agreement, or an underlying obligation, is held invalid by a court of competent jurisdiction, such invalidity, at the sole discretion of the Department, shall not affect any other provisions of this Agreement and the remainder of this Agreement shall remain in full force and effect. Therefore, the provisions of this Agreement are, and shall be, deemed severable.

B. The Gr
antee shall notify the Department immediately of any claim or action undertaken by or against it, which affects or may affect this Agreement or the Department, and shall take such action with respect to the claim or action consistent with the terms of this Agreement and the interests of the Department.

11. Changes in Terms/Amendments
A. The Gr
antee may be subject to amendments to this section as a result of subsequent applications and awards.

B. This
Agreement may only be amended or modified by mutual written agreement of both parties.

12. State-Owned Data
A. Def
initions
Fresno Council of Governments
19-REAP-14029

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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NO
FA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
1) Work:

The w
ork to be directly or indirectly produced by the Grantee, its employees, or by and of the Grantee’s contractor’s, subcontractor’s and/or sub-recipient’s employees under this Agreement.
2) W
ork Product:

A
ll deliverables created or produced from Work under this Agreement including, but not limited to, all Work and Deliverables conceived or made, either solely or jointly with others during the term of this Agreement, which relates to the Work commissioned or performed under this Agreement. Work Product includes all deliverables, inventions, innovations, improvements, or other works of authorship Grantee and/or Grantee’s contractor subcontractor and/or sub-recipient may conceive of or develop in the course of this Agreement, whether or not they are eligible for patent, copyright, trademark, trade secret or other legal protection. 3) I
nventions:

A
ny ideas, methodologies, designs, concept, technique, invention, discovery, improvement or development regardless of patentability made solely by the Grantee or jointly with the Grantee’s contractor, subcontractor and/or sub- recipient and/or Grantee’s contractor, subcontractor, and/or sub-recipient’s employees with one or more employees of the Department during the term of this Agreement and in performance of any Work under this Agreement, provided that either the conception or reduction to practice thereof occurs during the term of this Agreement and in performance of Work issued under this Agreement.

B. O
wnership of Work Product and Rights
1) All wo
rk Product derived by the Work performed by the Grantee, its employees or by and of the Grantee’s contractor’s, subcontractor’s and/or sub-recipient’s employees under this Agreement, shall be owned by the Department and shall be considered to be works made for hire by the Grantee and the Grantee’s contractor, subcontractor and/or subrecipient for the Department. The Department shall own all copyrights in the work product.
2) G
rantee, its employees and all of Grantee’s contractor’s, subcontractor’s and sub-recipient’s employees agree to perpetually assign, and upon creation of each Work Product automatically assign, to the Department, ownership of all United States and international copyrights in each and Fresno Council of Governments
19-REAP-14029

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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NO
FA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
every Work Product, insofar as any such Work Product, by operation of law, may not be considered work made for hire by the Grantee’s contractor, subcontractor and/or subrecipient from the Department. From time to time upon the Department’s request, the Grantee’s contractor, subcontractor and/or subrecipients, and/or its employees, shall confirm such assignments by execution and delivery of such assignment, confirmations or assignment or other written instruments as the Department may request. The Department shall have the right to obtain and hold in its name all copyright registrations and other evidence of rights that may be available for Work Product under this Agreement. Grantee hereby waives all rights relating to identification of authorship restriction or limitation on use or subsequent modification of the Work. 3) G
rantee, its employees and all Grantee’s contractors, subcontractors and sub-recipients hereby agree to assign to the Department all Inventions, together with the right to seek protection by obtaining patent rights therefore and to claim all rights or priority thereunder and the same shall become and remain the Department’s property regardless of whether such protection is sought. The Grantee, its employees and Grantee’s contractor, subcontractor and /or subrecipient shall promptly make a complete written disclosure to the Department of each Invention not otherwise clearly disclosed to the Department in the pertinent Work Product, specifically noting features or concepts that the Grantee, its employees and/or Grantee’s contractor, subcontractor and/or subrecipient believes to be new or different.
4) U
pon completion of all work under this Agreement, all intellectual property rights, ownership and title to all reports, documents, plans, specifications and estimates, produced as part of this Agreement shall automatically vest in the Department and no further agreement will be necessary to transfer ownership to the Department.

13. Special Conditions
The S
tate reserves the right to add any special conditions to this Agreement it deems necessary to assure that the policy and goals of the Program are achieved, in consultation with the Grantee.

Ex
hibit B
Pro-rata Initial Allocations to Each Regional Transportation Planning Agency Based on January 2020 California Department of Finance Population Estimates

REAP PLANNING GRANT INITIAL ALLOCATIONS MPO

DISTRIBUTION
MPO Share by Population*
Fresno Council of Governments 1,032,227 23.50% $1,114,737.62 Kern Council of Governments 927,251 21.11% $1,001,370.41 Kings County Association of Governments 156,444 3.56% $168,949.28 Madera County Transportation Commission 160,089 3.64% $172,885.65 Merced County Association of Governments 287,420 6.54% $310,394.79 San Joaquin Council of Governments 782,545 17.81% $845,097.40 Stanislaus Council of Governments 562,303 12.80% $607,250.45 Tulare County Association of Governments 484,423 11.03% $523,145.14 Total 4,392,702 100.00% $4,743,830.75

ATTACHMENT B
R
EAP MOU and AMENDMENT No. 1 TO MEMORANDUM OF UNDERSTANDING

SAN JOAQUIN VALLEY REGIONAL EARLY ACTION PLANNING COMMITTEE FOR HOUSING (ATTACHED)

Page 1 of 7 ends

MEMORANDUM OF UNDERSTANDING
San Joaquin Valley Regional Early Action Planning Committee for Housing This memorandum of understanding (“MOU”) is made this 19th day of November 2020 (“Effective Date”), by and between the agencies (“Members”) comprising the San Joaquin Valley Regional Early Action Planning Committee for Housing (“Committee”) set forth below:

Fresno Council of Governments
2035 Tulare Street Suite 201
Fresno, CA 93721
Email: [email protected]
Kern Council of Governments
1401 19th Street, Suite 300
Bakersfield, California 93301
Email: [email protected]
Kings County Association of
Governments
339 W D Street
Lemoore, CA 93245
Email: [email protected]
Madera County Transportation
Commission
2001 Howard Road, Suite 201
Madera, CA 93637
Email: [email protected]
Merced County Association of
Governments
369 W 18th Street
Merced, CA 95340
Email: [email protected]
San Joaquin Council of Governments
555 E Weber Avenue
Stockton, CA 95202
Email: [email protected]
Stanislaus Council of Governments
1111 “I” Street, Suite 308
Modesto, CA 95354
Email: [email protected]
Tulare County Association of
Governments
210 N Church Street, Suite B
Visalia, CA 93291
Email: [email protected]

RECITALS
A. Under section 50515.02, subdivision (a), of the Health and Safety Code, the State of California Department of Housing and Community Development (“ HCD”) has made available one hundred twenty -five million dollars ($125,000,000) in local government planning support grants to regional entities and working groups as outlined by the statute.

B. The Committee is one of the working groups identified in section 50515.02, subdivision (a), of the Health and Safety Code.

C. On June 26, 2020, the Members approved submission of an application for grant funding (“Application”) to HCD by Fresno Council of Governments (“FCOG”) as the fiscal agent on behalf of the Committee.

Page 2 of 7 ends

D. On August 14, 2020, HCD approved the Application and an allocation of $10,218,830.75 in grant funds (the “Initial Grant”) to the Members through FCOG.

E. On August 20, 2020, FCOG and HCD executed grant funding agreement number 19-REAP-14029 (“Agreement”). A true and correct copy of the Agreement is attached hereto as “Exhibit A.”
F. This MOU is intended to reflect the Members ’ understanding of the distribution of the Initial Grant and to facilitate the subsequent implementation of activities by the Members in furtherance of the purposes for which the Initial Grant was approved by HCD.

The Members therefore agree as follows:

1. Allocation of Initial Grant. The Members agree to allocate the $10,218,830.75 of the Initial Grant as follows:
a. FCOG will retain $5,475,000 of the Initial Grant to perform the following tasks:
i. FCOG shall prepare a comprehensive housing report and policy recommendations for implementation, as stated in the Application.

FCOG may enter into agreements as necessary to perform its obligations under this provision of the MOU and under the Application and Agreement.
ii. FCOG shall conduct regional planning and coordination, and provide technical assistance, as stated in the Application. FCOG may enter into agreements as necessary to perform its obligations under this term of the MOU and under the Application and Agreement. iii. FCOG shall administer of the Application, Agreement, this MOU, and the Initial Grant, as stated in the Application.
b. FCOG shall distribute the remaining $ 4,743,830.75 of the Initial Grant directly to each of the Members, as more particularly described in “Exhibit B,” in proport ion to each Member’s relative population using California Department of Finance population estimates updated as of January 2020.

2. Compliance with the Agreement and MOU. Each Member hereby acknowledges its cognizance of and its understanding of its obligation to comply with the terms and conditions of the Agreement and MOU. Each Member agrees to abide by the terms and conditions of the Agreement and to undertake all actions requested by FCOG pursuant to the Agreement or MOU , in order to facilitate FCOG’s compliance with the terms and conditions of the Agreement.

3. Compliance with the Law. Each Member agrees to comply with all Federal, State, and local laws in the performance of its obligations under this MOU.

Page 3 of 7 ends

4. Sub-Agreements. Copies of all agreements between any Member and any sub- recipient, contractor or subcontractor shall be submitted to FCOG, so that they then may be provided to HCD’s Program Manager as required by Exhibit D, section 8, paragraph B of the Agreement.

5. Quarterly Reports . Each Member also shall deliver to FCOG, on a quarterly basis, status reports and accounting records reflecting any expenditure of the Initial Grant by that Member or by a sub-recipient of that Member. Each Member shall deliver its status reports and accounting records within thirty (30) days following the end of the period covered by the document . Each member’s quarterly status reports shall, at a minimum, include discussion of any allocations or sub-allocations of the Initial Grant, a description of any project initiated in whole or in part with the Initial Grant and a description of the progress made on any such project.

6. Retention of Records. Each Member shall maintain public records (as that term is defined in Government Code section 6252 ) (collectively, “ Records”) required under the Agreement, relating to any matter contained in this MOU , or demonstrating that the Initial Grant was used in a manner consistent with the Agreement. Each Member shall make the Records available to FCOG, HCD or the State Auditor upon demand. Each Member shall maintain the Records and make them available for inspection for a period of at least one (1) year following the termination of this MOU or the time specified in Government Code section 8546.7, whichever is later. Records relating to any audit or litigation relevant to this MOU or the Agreement shall be retained by each Member for five years after the conclusion or final resolution of such matter, as required by Exhibit D, section 3, paragraph E of the Agreement.

7. Disallowed Costs. Each Member shall return to FCOG any funds which HCD has disallowed within 90 days following notice to the Member.

8. Indemnity .
a. Each Member shall indemnify FCOG, along with FCOG’s officers, directors, and employees, for any costs or liabilities (includi ng without limitation for damages, court costs, attorneys’ fees, and expert witness fees ) arising from, resulting from, or in connection with that Member’s actions with respect to subject matter of this MOU or relating in any way to the use of the Initial Grant proceeds by that Member or any sub- recipient, contractor, or subcontractor of that Member.
b. Notwithstanding, the obligation to indemnify shall not apply to any costs or liabilities caused solely by the active negligence or willful misconduc t of FCOG or any of its officers, directors, and employees.

9. Duration of MOU . This MOU shall be in effect from the Effective Date until December 31, 2024 unless its term is extended by written modification in accordance with the provisions of section 12, paragraph c of this MOU.

Page 4 of 7 ends

10. Subsequent MOUs. The Members understand and agree that subsequent MOUs may be necessary to facilitate the distribution of further grant funding from HCD under section 50515.02, subdivision (a), of the Health and Safety Code. The Members hereby commit to negotiate the terms and conditions of such subsequent MOUs in good faith, in order to achieve concurrence and ensure execution of same in a timely fashion.

11. Notices. All notices provided for or permitted under this MOU must be in writing and delivered either by personal service, by first -class United States mail, by an overnight commercial courier service, or as a PDF attachment to an email sent to the addresses provided for the Members above. Any Member may change its address for receipt of notice by providing notice of that change as provided in this section 11.
a. A notice delivered by personal service is effective upon service to the recipient.
b. A notice delivered by first -class United States mail is effective three business days after deposit in the United States mail, postage prepaid, addressed to the recipient.
c. A notice delivered by an overnight commercial courier service is effective one County business day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed to the recipient.
d. A notice delivered by email is effective when sent, if the email is sent between the hours of 8:00 am and 5:00 pm on a business day. If sent outside the hours of 8:00 am and 5:00 pm on a business day, a notice delivered by email becomes effective on the first business day following.

12. General Provisions.
a. This MOU is binding upon and shall inure to the benefit of any successors or assigns of the Members.
b. This MOU represents the entire understanding of the Members as to those matters contained in this MOU. No prior oral or written understanding shall be of any force or effect with respect to those matters covered in this MOU. c. This MOU may not be modified or altered except by writing signed by all Members.
d. No Member may assign, delegate or transfer its rights and duties in t his MOU without the written consent of all other Members , except that any Member may enter into one or more sub-agreements with any sub-recipient, contractor, or subcontractor to implement activities in furtherance of the

Page 5 of 7 ends

purposes for which the Initial Grant was approved by HCD without the necessity of obtaining such consent.
e. Any dispute arising under this MOU, which is not resolvable by informal mediation between or among the Members, shall be adjudicated in a court of law under the laws of the State of California.
f. For all claims arising from or related to this MOU, nothing in this MOU establishes, waives, or modifies any claims presentation requirements or procedures provided by law, including the Government Claims Act (Division

3.6 of Title 1 of the Government Code, beginning with section 810). g. This MOU shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from this MOU shall only be in California. Any action brought to interpret or enforce this MOU, or any of the terms or conditions hereof, shall be brought and maintained in the Fresno County Superior Court.
h. If any part of this MOU is found by a court of competent jurisdiction to be unlawful or otherwise unenforceable, the balance of this MOU remains in full force and effect, and the Members shall make best efforts to replace the unlawful or unenforceable part of this MOU with lawful and enforceable terms intended to accomplish the Members’ original intent. i. Section headings are provided for convenience only and are not part of this MOU.
j. This MOU does not and is not intended to create any rights or obligations for any person or entity except for the Members.
k. Each Member represents and warrants that the individual signing this MOU is duly authorized to do so and their signature on this MOU legally binds that Member to the terms of this MOU.
l. This MOU may be signed in counterparts, each of which is an original, and all of which together constitute this MOU.
[Signature pages follow.]

Page 6 of 7 ends

The Members have caused this MOU to be executed as of the date and year first above written.

Fresno Council of Governments
By:
___________________________
Tony Boren, Director
Appr
oved as to Legal Form:

By:

_____________________________
Pri
nt:
_______________________________
Kern Council of Governments
By:

____________________________
Ahron Hakimi, Director
Appr
oved as to Legal Form:

By
:___
__________________________
Pri
nt:
_______________________________
Kings County Association of
Governments
By:

___________________________
Terri King, Director
Appr
oved as to Legal Form:

By:

_______________________________
Pri
nt:
_______________________________
Madera County Transportation
Commission
By:

______________________________
Patricia Taylor, Director
Appr
oved as to Legal Form:

By:

_______________________________
Pri
nt:
_______________________________

Page 7 of 7 ends

Merced County Association of
Governments
By:

_______________________________
Stacie Guzman, Director
Appr
oved as to Legal Form:

By:

_______________________________
Pri
nt:
_______________________________
San Joaquin Council of Governments
By:

_______________________________
Andrew Chesley, Director
Appr
oved as to Legal Form:

By:

_______________________________
Pri
nt:
_______________________________
Stanislaus Council of Governments
By:

_______________________________
Rosa Park, Director
Appr
oved as to Legal Form:

By:

_______________________________
Pri
nt:
_______________________________
Tulare County Association of
Governments
By:

_______________________________
Ted Smalley, Director
Appr
oved as to Legal Form:

By:

_______________________________
Pri
nt:
_______________________________

Exhibit A
Grant funding agreement number 19-REAP-14029
9/3/2020

Fresno Council of Governments
19-REAP-14029

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Rev.8/19/2020

EXHIBIT A
Regional Early Action Planning Grant Program (REAP)
NOFA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020

AUTHORITY, PURPOSE AND SCOPE OF WORK

2. Purpose
In ac
cordance with the authority cited above, the Grantee has been awarded financial assistance in the form of a grant from the Program. The Department has agreed to make the grant for planning activities pursuant to the NOFA and this Agreement. By entering into this Agreement and thereby accepting the award of the Program funds, the Grantee agrees to comply with the terms and conditions Fresno Council of Governments
19-REAP-14029

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Rev.8/19/2020

3. Definitions
Term
s herein shall have the same meaning as defined by the NOFA.

Fresno Council of Governments
19-REAP-14029

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Rev.8/19/2020

D. The Depar
tment may, as it deems appropriate or necessary, request the repayment of funds from an applicant, or pursue any other remedies available to it by law for failure to comply with statutory or Department requirements.

E. The Depar
tment’s decision to approve or deny an application or request for funding pursuant to the Program, and its determination of the amount of funding to be provided, shall be final.

F. M
onitoring provisions may be amended and are subject to additional provisions in accordance with this agreement or subsequent amendments.

6. Department Contract Coordinator
The C
ontract Coordinator of this Agreement for the Department is the Housing Policy Development Manager, or the Manager’s designee. Unless otherwise informed, any notice, report, or other communication required by this Agreement shall be mailed by first class mail to the Department Contract Coordinator at the following address:

D
epartment of Housing and Community Development
Housing Policy Development Division
Land Use Planning Unit
Attention: REAP Program Manager
2020 West El Camino Avenue, Suite 500
Sacramento, CA 95833
P. O. Box 952050
Sacramento, CA 94252-2050
Fresno Council of Governments
19-REAP-14029

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Rev. 8/19/2020

EXHIBIT B
Regional Early Action Planning Grants (REAP)
NOFA Date: October 10, 2019
Approved Date: March 30, 2020
Prep. Date: August 12, 2020

BUDGET DETAIL AND PAYMENT PROVISIONS

1. Application for Funds
A. The D
epartment is entering into this Agreement on the basis of, and in reliance on facts, information, assertions and representations contained in any application and award and any subsequent modifications or additions thereto approved by the Department. All awarded applications for funding and any approved modifications and additions thereto are hereby incorporated into this Agreement.

B. The G
rantee warrants that all information, facts, assertions and representations contained in any approved application and approved modifications and additions thereto are true, correct, and complete to the best of the Grantee’s knowledge. In the event that any part of an application and any approved modification and addition thereto is untrue, incorrect, incomplete, or misleading in such a manner that would substantially affect the Department's approval, disbursement, or monitoring of the funding and the grant or activities governed by this Agreement, the Department may declare a breach hereof and take such action or pursue such remedies as are provided for breach hereof.

2. Grant and Reimbursement Limit
A. The m
aximum total amount encumbered to the Grantee pursuant to this Agreement shall not exceed $10,218,830.75.

B. Thi
s Agreement authorizes an initial advance payment(s) for eligible activities as described in the application.

C. Thi
s Agreement authorizes subsequent award amounts or advance payment up to the total award amount as described in Section 2A, of this Exhibit, and subject to Department approval.

D. The G
rantee shall submit and follow a schedule for the expenditure of the advance payment, any subsequent payment and the total amount prior to Fresno Council of Governments
19-REAP-14029

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3. Grant Timelines
A. This
Agreement is effective upon approval by the Department
representative’s signature on page one of the fully executed Standard Agreement, STD 213, (the “Effective Date”).

B. All Grant funds must be expended by December 31, 2023 pursuant to Health and Safety Code section 50515.04(c )(1).

C. The Gr
antee shall deliver to the Department all final invoices for reimbursement on or before November 1, 2023, to ensure the Department meets the December 31, 2023 expenditure deadline. Under special circumstances, approved by the Department, the Department may modify the November 1, 2023 deadline and may provide exception, including, but not limited to, advance payment to carry out the terms of this agreement.

D. It
is the responsibility of the Grantee to monitor the project and timeliness of draws within the specified dates.

4. Allowable Uses of Grant Funds
A. The Depar
tment shall not award or disburse funds unless it determines that the grant funds shall be expended in compliance with the terms and provisions of the NOFA which includes associated forms and guidelines and this Agreement.

B. Gr
ant funds shall only be used by the Grantee for project activities approved by the State that involve planning activities in accordance with the NOFA.

C. G rant
funds may not be used for administrative costs of persons employed by the Grantee for activities not directly related to eligible activities.

D. The Gr
antee shall use no more than 5 percent of the total grant amount for costs related to administration of the project.

Fresno Council of Governments
19-REAP-14029

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F. A
fter the contract has been executed by the Department and all parties, approved and eligible costs for eligible activities may be reimbursed for the project(s) upon completion of deliverables or paid in advance in accordance with the scope of work and subject to the terms and conditions of this Agreement.

5. Performance
The G
rantee will be subject to amendments to this section as a result of future applications and awards.

6. Fiscal Administration
A. The G
rantee will be subject to amendments to this section as a result of subsequent applications and awards, in consultation with the Grantee.

B. I
t is mutually agreed that if the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall immediately terminate and be of no further force and effect. In this event, the State and Contractor shall be relieved of any and all obligations under this Grant Agreement.

C. I
f funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the sole discretion to cancel this Agreement without cause, no liability occurring to the State, or amend the current Grant Agreement and amount allocated to Contractor.

Fresno Council of Governments
19-REAP-14029

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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NOF
A Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020

REAP TERMS AND CONDITIONS

B. The Gr
antee will be subject to amendments to this section as a result of subsequent applications and awards.

E. Subc
ontractors employed by the Grantee and paid with moneys under the terms of this Standard Agreement shall be responsible for maintaining accounting records as specified above.

3. Audits
A. At
any time during the term of the Standard Agreement, the Department may Fresno Council of Governments
19-REAP-14029

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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NO
FA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
perform or cause to be performed a financial audit of any and all phases of the award. At the Department’s request, the Grantee shall provide, at its own expense, a financial audit prepared by a certified public accountant. The State of California has the right to review project documents and conduct audits during and over the project life.
1) The G
rantee agrees that the Department or the Department’s designee shall have the right to review, obtain, and copy all records and supporting documentation pertaining to performance of this Agreement. 2) The G
rantee agrees to provide the Department or the Department’s designee, with any relevant information requested.
3) The G
rantee agrees to permit the Department or the Department’s designee access to its premises, upon reasonable notice, during normal business hours for the purpose of interviewing employees who might reasonably have information related to such records and inspecting and copying such books, records, accounts, and other material that may be relevant to a matter under investigation for the purpose of determining compliance with statutes, Program guidelines, and this Agreement.

B. I
f a financial audit is required by the Department, the audit shall be performed by an independent certified public accountant. Selection of an independent audit firm shall be consistent with procurement standards contained in Exhibit D, Section 8 subsection A. of this Standard Agreement.
1) The G
rantee shall notify the Department of the auditor's name and address immediately after the selection has been made. The contract for the audit shall allow access by the Department to the independent auditor's working papers.
2) The G
rantee is responsible for the completion of audits and all costs of preparing audits.
3) I
f there are audit findings, the Grantee shall submit a detailed response acceptable to the Department for each audit finding within 90 days from the date of the audit finding report.

C. The G
rantee agrees to maintain such records for possible audit after final payment pursuant to Exhibit D, Section 3, subsection E. below, unless a longer period of records retention is stipulated.

Fresno Council of Governments
19-REAP-14029

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D. The deter
mination by the Department of the eligibility of any expenditure shall be final.

B. Nei
ther the pendency of a dispute nor its consideration by the Department will excuse the Grantee from full and timely performance in accordance with the terms of this Standard Agreement.

Fresno Council of Governments
19-REAP-14029

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Rev. 8/19/2020

EXHIBIT D
Regional Early Action Planning Grants (REAP)
NO
FA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
D. Both the Grantee and the Department have the right to terminate the Standard Agreement at any time upon 30 days written notice. The notice shall specify the reason for early termination and may permit the Grantee or the Department to rectify any deficiency(ies) prior to the early termination date. The Grantee shall submit any requested documents to the Department within 30 days of the early termination notice.

E. A s
trong implementation component for the funded activity through this Program is required, including, where appropriate, agreement by Grantee and its subcontractors to formally adopt or complete a planning or other activity consistent with the NOFA. The Grantee must carry out provisions to ensure the adoption or completion of activities in accordance with the NOFA, including activities subcontracted to localities. Grantee may be subject to repayment of the grant should the Grantee or any of its subcontractors under this agreement fail to adopt or complete activities set forth in its application, this Agreement or any amendments to this Agreement.

F. The f
ollowing shall each constitute a breach of this Agreement:
1) G
rantee’s failure to comply with any term or condition of this Agreement. 2) U
se of, or permitting the use of, grant funds provided under this Agreement for any ineligible costs or for any activity not specified and approved under this Agreement.
3) A
ny failure to comply with the deadlines set forth in this Agreement unless approved by the Program Manager in writing.

G. I
n addition to any other remedies that may be available to the Department in law or equity for breach of this Agreement, the Department may at its discretion, exercise a variety of remedies, including but not limited to:
1) R
evoke existing REAP award(s) to the Grantee;
2) R
equire the return of unexpended REAP funds disbursed under this Agreement;
3) R
equire repayment of REAP Funds disbursed and expended under this agreement;
4) S
eek a court order for specific performance of the obligation defaulted upon, or the appointment of a receiver to complete the obligations in accordance Fresno Council of Governments
19-REAP-14029

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EXHIBIT D
Regional Early Action Planning Grants (REAP)
NO
FA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
with the REAP Program requirements; and
5) O
ther remedies available at law, by and through this agreement. All remedies available to the Department are cumulative and not exclusive. 6) The D
epartment may give written notice to the Grantee to cure the breach or violation within a period of not less than 15 days.

H. The G
rantee may be subject to amendment of this section as a result of subsequent applications and awards.

5. Indemnification
N
either the Department nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by the Grantee, its officers, employees, agents, its contractors, its sub-recipients or its subcontractors under or in connection with any work, authority or jurisdiction conferred upon the Grantee under this Standard Agreement. It is understood and agreed that the Grantee shall fully defend, indemnify and save harmless the Department and all of the Department’s staff from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortuous, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by the Grantee, its officers, employees, agents contractors, sub-recipients, or subcontractors under this Standard Agreement.

6. Waivers
N
o waiver of any breach of this Agreement shall be held to be a waiver of any prior or subsequent breach. The failure of the Department to enforce at any time the provisions of this Agreement, or to require at any time, performance by the Grantee of these provisions, shall in no way be construed to be a waiver of such provisions nor to affect the validity of this Agreement or the right of the Department to enforce these provisions.

7. Relationship of Parties
I
t is expressly understood that this Standard Agreement is an agreement executed by and between two independent governmental entities and is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship whatsoever other than that of an independent party.

8. Third -Party Contracts
Fresno Council of Governments
19-REAP-14029

Page 6 of 9 ends

Rev. 8/19/2020

Page 7 of 9 ends

Rev. 8/19/2020

EXHIBIT D
Regional Early Action Planning Grants (REAP)
NO
FA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
clause in all contracts and subcontracts they enter into to perform work under REAP.

D. The G
rantee shall, in the course of performing project work, fully comply with the applicable provisions of the Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. 12101 et seq.) E. T he Grantee shall adopt and implement affirmative processes and procedures that provide information, outreach and promotion of opportunities in the REAP project to encourage participation of all persons regardless of race, color, national origin, sex, religion, familial status, or disability. This includes, but is not limited to, a minority outreach program to ensure the inclusion, to the maximum extent possible, of minorities and women, and entities owned by minorities and women, as required by 24 CFR 92.351.

10. Litigation
A. I
f any provision of this Agreement, or an underlying obligation, is held invalid by a court of competent jurisdiction, such invalidity, at the sole discretion of the Department, shall not affect any other provisions of this Agreement and the remainder of this Agreement shall remain in full force and effect. Therefore, the provisions of this Agreement are, and shall be, deemed severable.

B. The G
rantee shall notify the Department immediately of any claim or action undertaken by or against it, which affects or may affect this Agreement or the Department, and shall take such action with respect to the claim or action consistent with the terms of this Agreement and the interests of the Department.

11. Changes in Terms/Amendments
A. The G
rantee may be subject to amendments to this section as a result of subsequent applications and awards.

B. Thi
s Agreement may only be amended or modified by mutual written agreement of both parties.

12. State-Owned Data
A. D
efinitions
Fresno Council of Governments
19-REAP-14029

Page 8 of 9 ends

Rev. 8/19/2020

EXHIBIT D
Regional Early Action Planning Grants (REAP)
NO
FA Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
1) Work:

Page 9 of 9 ends

Rev. 8/19/2020

EXHIBIT D
Regional Early Action Planning Grants (REAP)
NOF
A Date: October 10, 2019
Approved Date: April 9, 2020
Prep. Date: August 12, 2020
every Work Product, insofar as any such Work Product, by operation of law, may not be considered work made for hire by the Grantee’s contractor, subcontractor and/or subrecipient from the Department. From time to time upon the Department’s request, the Grantee’s contractor, subcontractor and/or subrecipients, and/or its employees, shall confirm such assignments by execution and delivery of such assignment, confirmations or assignment or other written instruments as the Department may request. The Department shall have the right to obtain and hold in its name all copyright registrations and other evidence of rights that may be available for Work Product under this Agreement. Grantee hereby waives all rights relating to identification of authorship restriction or limitation on use or subsequent modification of the Work. 3) Gr
antee, its employees and all Grantee’s contractors, subcontractors and sub-recipients hereby agree to assign to the Department all Inventions, together with the right to seek protection by obtaining patent rights therefore and to claim all rights or priority thereunder and the same shall become and remain the Department’s property regardless of whether such protection is sought. The Grantee, its employees and Grantee’s contractor, subcontractor and /or subrecipient shall promptly make a complete written disclosure to the Department of each Invention not otherwise clearly disclosed to the Department in the pertinent Work Product, specifically noting features or concepts that the Grantee, its employees and/or Grantee’s contractor, subcontractor and/or subrecipient believes to be new or different.
4) Upon c
ompletion of all work under this Agreement, all intellectual property rights, ownership and title to all reports, documents, plans, specifications and estimates, produced as part of this Agreement shall automatically vest in the Department and no further agreement will be necessary to transfer ownership to the Department.

13. Special Conditions
The St
ate reserves the right to add any special conditions to this Agreement it deems necessary to assure that the policy and goals of the Program are achieved, in consultation with the Grantee.

Exhi
bit B
Pro-rata Initial Allocations to Each Regional Transportation Planning Agency Based on January 2020 California Department of Finance Population Estimates

REAP PLANNING GRANT INITIAL ALLOCATIONS MPO

Pag
e C-1

ATTACHMENT C
SCOP

E OF SERVICES
CONTRACTOR will undertake professional activit ies consistent with the requirements of Chapter 3.1 of Part 2 of Division 31 (commencing with section 50515) of the California Health & Safety, the REAP Grant Agreement, and the REAP MOU, and comply with the terms and conditions of same. CONTRACTOR’S at- tention is called to the requirements of the REAP MOU for submission of quarterly status reports and accounting records (section 5) and retention of records related to use of the grant funds (section 6). In additional, CONTRACTOR shall substantially comply with (1) the “Eligible Activities Best Practices” guide- lines promulgated by the State of California’s Department of Housing and Community Development dated as of May 12,2020; and (2) the “S an Joaquin Valley Regional Early Action Planning for Housing - REGIONAL PLANNING AGENCY GUIDANCE” dated as of May 6, 2021, copies of which are attached. Per the REAP MOU and the Grant Agreement, all funds provided to CONTRACTOR hereunder must be expended in full on or before August 31, 2023.

Best
_Practices_5_12_2020 1
Regional Early Action Planning Grant Program (REAP)
Eligible Activities Best Practices
This document will be updated periodically with new ideas.

Additions will be attached as a new page at the end of the document with the date of the addition.

Eligible Activity: Developing an Improved RHNA Methodology to Further Gov Code Section 65584 (d) Objectives.

Gov Code Section 65584 (d) “affirmatively furthering fair housing” means taking meaningful actions, in addition to combating discrimination, that overcome patterns of segregation and foster inclusive communities free from barriers that restrict access to opportunity based on protected characteristics. Specifically, affirmatively furthering fair housing means taking meaningful actions that, taken together, address significant disparities in housing needs and in access to opportunity, replacing segregated living patterns with truly integrated and balanced living patterns, transforming racially and ethnically concentrated areas of poverty into areas of opportunity, and fostering and maintaining compliance with civil rights and fair housing laws.

• Analyzing and incorporating Affirmatively Furthering Fair Housing and making data available to jurisdictions
• Increasing zoned capacity in jurisdictions with disproportionately high jobs- housing ratio, including an improved balance between the number of low- wage jobs and the number of housing units affordable to low-wage workers in each jurisdiction
• Outreach strategies in addition to conducting a survey to combat segregation and foster inclusive communities free from barriers that would restrict access to opportunity based on protected characteristics • Education and awareness of fair housing laws and issues to stakeholders (e.g. community, developers, public staff)
• Providing language assistance for limited proficiency in English • Incorporating and developing policy guide for displacement avoidance plan and affordable housing preservation
• Incorporating climate mitigation strategies (e.g. make housing more energy efficient, adopting renewable energy sources such as solar and wind)
• Incorporating disaster / climate adaptation and encouraging strategies in local land use documents
Best
_Practices_5_12_2020 2
• Incorporating ways to promote infill development (i.e., promoting higher zoned capacity in areas with low per capita vehicle miles traveled and high access to opportunity, focusing new growth land that has already been developed with urban uses or is substantially surrounded by urban uses and/or incorporating ways to promote transportation-efficient development (i.e., development in places where there are multiple transportation options besides a single occupancy vehicle--transit, bike lanes, sidewalks- - and the density and mix of uses that make these transportation options a viable choice),
• Mapping regional Priority Development Areas or similar • Implementing a Sustainable Communities Strategies (SCS) consistency program (e.g. Association of Bay Area Government’s Resilience Program) • Promotion of more zoned capacity for housing in jurisdictions with the highest housing costs.
• Local input surveys
• Mini grants to community groups and partnership with grassroots partners and community leaders to support full engagement in RHNA development • Aligning transportation funding – especially competitive transportation grant programs and investments in transit, streetscape, placemaking, and active transportation – with RHNA plans for housing (i.e., Bay Area’s Resolution 3434)
• Incorporating homelessness data to plan for meeting supply of below 30 percent AMI units
• Education and awareness of various tax increment financing tools, promoting use of local tax increment financing tools (i.e., Enhanced Infrastructure Financing Districts (EIFDs), Community Revitalization and Investment Authorities (CRIAs), Affordable Housing Authorities (AHAs), Infrastructure and Financing Revitalization Districts (IFRDs) and Neighborhood Infill Finance and Transit Improvements (NIFTI) districts.

CRIAs have alignment with CalEnviro Screen and affordable housing requirement, see tool comparison
.
• Education and awareness on pairing federal Opportunity Zone (OZ) program with state programs (i.e., Strategic Growth Council Transformative Climate Community in Ontario has an affordable housing project funded by state with OZ funding). Opportunity Zones are census tracts that are defined by the Internal Revenue Service (IRS) as “economically-distressed community where new investments, under certain conditions, may be eligible for preferential tax treatment.” They were added to the tax code by the Tax Cuts and Jobs Act on December 22, 2017. https://opzones.ca.gov/faqs/.

Best_
Practices_5_12_2020 3
• Incorporating methods to pair federal Opportunity Zone program with affordable housing
Eligible
Activity: Suballocations to Jurisdictions
• Developing approaches to insure equitable distribution of funding such as location-based minimums (e.g., at least 20% in a specified county), non- competitive programs coupled with population based or RHNA based award amounts, proactive outreach and technical assistance with under- resourced communities.
• Program criteria for SCS consistency, displacement, affordability, including deeper targeting, climate adaption
• Program criteria for Affirmatively Furthering Fair Housing • COG to develop grant program to support development of compliant Housing Elements and community engagement strategies (i.e., Bay Area’s 80k by 2020 challenge grant program, SANDAG’s Policy 33) • Program criteria or other incentives to facilitate pro-housing jurisdictions • Jurisdictions’ specific best practices after a COG develops a grant program:
o Prepare a form based zoning or overlay zone to provide development standards and zoning that allows future higher-density housing and mixed-use development (may include Environmental Impact Report [EIR])
o Develop framework for a trust to support the preservation and production of long-term affordable housing for lower-income households
o Completing CEQA analysis and specific plan EIRs that promote streamlined approvals at the project-level or eliminate the need for project-level specific review.
o Undertake rezoning efforts to bring local zoned capacity into compliance with HCD requirements for housing element prior to Housing Element due data
o Objective design and/or development standards to comply with SB35 and other laws to provide more clarity and certainty for applicants.
o Planning associated with local financial strategies such as a local housing trust fund, fee reductions for infill, TOD, or affordable developments, published fee schedules and fee calculators.

Best
_Practices_5_12_2020 4
o Intensifying land-use patterns to allow for a variety of housing types (duplexes, triplexes, fourplexes, multi-family) and increasing densities on sites identified to accommodate the jurisdictions lower- income RHNA.
o When suballocating funds for comprehensive marketing strategies that the marketing is equitably designed and inclusive of disadvantage communities.
o Feasibility studies to determine the most efficient locations to site housing, such as those with lowest per capita vehicle miles traveled and highest access to jobs and other opportunities.
o Infrastructure planning that prioritizes infill development. o Establishing a flexible housing subsidy pool.
o Anti-displacement strategies which may be applicable are those eligible pursuant to the program guidelines of other state housing assistance programs such as the Affordable Housing and
Sustainable Communities (AHSC) Program, or policies and programs to implement the provisions of Government Code section 65583 (a)(9) and (c)(6) for preservation of assisted housing developments.
o Examples of priorities that may complement the acceleration of housing production can include consideration of practices that prohibit residential uses in areas zoned for open space, agriculture, areas considered environmentally hazardous (e.g., floodplains or high wildfire severity zone areas), or other sensitive areas. o Feasibility for a tax increment financing tool that expedites housing development; prepare an Infrastructure Financing Plan for a tax increment financing tool to plan for future housing and housing funding.

Such as Enhanced Infrastructure Financing Districts
(EIFDs), Community Revitalization and Investment Authorities (CRIAs), Affordable Housing Authorities (AHAs), Infrastructure and Financing Revitilization Districts (IFRDs) and Neighborhood Infill Finance and Transit Improvements (NIFTI) districts. CRIAs have alignment with CalEnviro Screen and affordable housing
requirement. Tool comparison
:
o Pairing Federal Opportunity Zone Program for affordable housing development
 Developing plan to increase affordable housing development in Federal Opportunity Zones.

Bes
t_Practices_5_12_2020 5
 Creating toolkit/project pipleline to pair Opportunity Zone funding with state affordable housing programs (such as AHSC project or Infill Infrastructure Grant with an OZ Fund)  Examples include the Strategic Growth Council
Transformative Climate Community in Ontario has an
affordable housing project funded by state with OZ funding Eligib
le Activity: Technical Assistance, Temporary Staffing or Consultant Needs and Other Actions
• To build capacity develop a planning academy (educate and engage on planning processes) for staff. E.g. City of Sacramento’s Citizen’s Planning Academy.
• Developing regional toolkits on a variety of housing-specific topics such as objective design and development standards, housing elements, CEQA streamlining, by-right zoning, ADUs, infrastructure planning, housing finance strategies, public engagement, planning adaptation, Opportunity Zones, tax-increment financing tools, and equity and environmental justice.
• Creation of data service menus and analysis templates to support preparation of housing elements
• Assistance with sites inventories to support preparation of the housing elements
• Developing public engagement and educational strategies to build support from local elected officials, stakeholders, and the general public on a variety of housing policies that encourage affordable housing. Strategies can include workshops, campaigns, fact sheets, customizable PowerPoint slide decks, etc.,
• Creating tools to encourage the development of ADUs such as, handbooks, prototype plans and designs that can be customized to a local jurisdiction. Other tools may include web-based ADU calculators, entitlement processing assistance and websites specific to jurisdictions. • Establishing consulting benches or circuit rider programs that can provide targeted TA on a variety of housing and land use topics in the form of training, workshops, panel discussions, and direct assistance to jurisdictions around specific housing policy areas such as housing elements, ADUs, CEQA, by-right zoning, expediated permit processing, infrastructure, equity and environmental Justice, etc., Bes
t_Practices_5_12_2020 6
• Toolboxes that include model ordinances, templates, checklists, and handbooks that help jurisdictions comply with land-use and planning laws such as density bonus, ADUs, supportive housing, reasonable accommodation, etc.,
• Developing a peer-to-peer learning environment through facilitating regional convenings and regularly scheduled meetings where local governments can exchange best practices and share resources. • Establishing relationship and planning housing needs with Continuum of Care
• Outreach to jurisdictions applying for/receiving emergency shelter funds to assist with planning movement from shelter to permanent homes, i.e. site and funding readiness for permanent supportive housing. • Technical assistance on how to incorporate homelessness data into housing element updates or housing planning.
• Developing toolkits or support for planning of infrastructure financing plans for tax-increment financing tools that support housing, such as Enhanced Infrastructure Financing Districts (EIFDs), Community Revitalization and Investment Authorities (CRIAs), Affordable Housing Authorities (AHAs), Infrastructure and Financing Revitilization Districts (IFRDs) and Neighborhood Infill Finance and Transit Improvements (NIFTI) districts. • CRIAs have alignment with CalEnviro Screen and affordable housing requirement. See tool comparison
.
• Identifying infill opportunity areas or sites
• Compiling and providing information about regional conservation plans and other resource-area data to preclude time-consuming conflicts related to special-status species and other resource-conservation efforts (i.e., Butte County Association of Government’s assistance in General Plan updates)
• Mapping of transportation costs to facilitate assessment of the combined cost of housing and transportation
• Development of a multi-jurisdictional Housing Element and other collaborative processes to assist the preparation and implementation of housing elements
• Convening regional stakeholders to identify solutions to regional housing challenges (e.g., the Committee to House the Bay Area (CASA) process) • Public surveys, communications planning, development of communications materials (e.g., brochures) or tools (e.g., an online game), or communications purchases (e.g., a radio spot) to support local- government housing outreach
• Establishing a Transfer of Development Rights program Bes
t_Practices_5_12_2020 7
• CEQA streamlining support (i.e., Sacramento Area of Council of Government’s (SACOG) assists projects within its region in utilizing the SB 375 CEQA streamlining provisions. SB 375 allows for streamlined review and analysis of residential or mixed-use projects consistent with an SCS; modified review and analysis, through an expedited Sustainable Communities Environmental Assessment (SCEA), for Transit Priority Projects (TPPs) that are consistent with an SCS; and a complete CEQA exemption for TPPs that are consistent with an SCS and meet a specific list of other requirements. In each of these cases, SACOG's MTP/SCS EIR serves as a first-tier environmental document under CEQA. SACOG provides lead agencies with a CEQA streamlining worksheet to determine if projects are consistent with their region's SCS, and to help determine the appropriate CEQA streamlining.)
• Facilitating partnerships between developers, local agencies, transit providers, and State agencies to secure a diverse set of investments in key housing areas, especially to facilitate infill development with many transportation choices
• Supporting efforts to secure other public funds by publicizing grant availability or providing grant-writing or other grant-related technical support for eligible projects
Eligible Activity: Program Administration
Applicants may consult with HCD to identify whether a task is an activity or administration.

• Activity costs:
o Applicants staff time for implementation of improving RHNA methodology directly related to eligible activity 1
o Applicants staff time to review suballocation applications from jurisdictions directly related to eligible activity 2
o Applicants staff time to develop contracts for jurisdictions as part of suballocation directly related to eligible activity 3
• Administrative costs (max 5%):
o Monitoring and Reporting on allocations and suballocations o Prepare REAP application, including staff time to participate in Steering Committee calls/meetings. Preparing invoices and supporting documentation
o File management
1 San
Joaquin
Valley
Regional
Early
Action
Planning
for
Housing

REGIONAL

PLANNING
AGENCY

FUNDING

GUIDANCE

Revised
Version
–
May
6,
2021

Background

The
Local
Government
Planning
Support
Grants
Program
(AB
101)
was
established
to
provide

regions
and
jurisdictions
with
one-‐time
grant
funding
for
planning
activities
to
meet
the
sixth

cycle
of
the
Regional
Housing
Needs
Allocation
(RHNA),
and
to
spur
affordable
housing

production.

A
total
of
$18,975,323
in
Regional
Early
Action
Planning
(REAP)
grant
funds
is

available
to
the
eight
San
Joaquin
Valley
regional
planning
agencies.

The
San
Joaquin
Valley
Regional
Early
Action
Committee
for
Housing
(SJV
REAP
Committee),

required
by
statute,
will
help
guide
the
Valley’s
REAP
planning
efforts.

The
SJV
REAP
Committee

comprises
24 members
of
the
San
Joaquin
Valley
regional
planning
agencies,
cities,
counties
and

community
members.

The
SJV
REAP
Committee
meets
two
to
four
times
a
year.

The
San
Joaquin

Valley
Regional
Planning
Agencies’
Directors’
Committee
will
also
advise
the
SJV
REAP
program

implementation
process.

Overview

The
Fresno
Council
of
Governments
is
the
fiscal
agent
for
this
regional
effort.

There
are
three

primary
work
areas
highlighted
below:

§ RHNA
(Regional
Housing
Needs
Allocation)
-‐
Developing
an
improved
methodology
for

the
distribution
of
the
sixth
cycle
RHNA.

§ Suballocations
to
jurisdictions
–
Providing
grants
to
accelerate
housing
production
in
a

way
that
aligns
with
state
planning
priorities,
housing,
transportation,
equity,
and
climate

goals.

§ Valleywide
activities
and
deliverables
–
Conducting
a
comprehensive
housing
report,

regional
planning
and
coordination,
program
implementation,
technical
assistance,
and

other
activities.

REAP
program
administration,
a greements,
consultants,
outreach,

communication,
and
other
administrative
and
program
management
duties.

RHNA
and
jurisdictional
suballocations
will
primarily
be
conducted
at
the
regional
planning

agency
level,
with
each
regional
planning
agency
receiving
a
pro-‐rata
share
of
funding
for

developing
and
implementing
its
RHNA
process,
and
for
distributing
and
coordinating
the

jurisdictional
suballocations.

Please
reference
the
attached
REAP
Summary
Funding
Table
for

additional
information.

The
SJV
Housing
Program
Manager
(Sigala
Inc.)
and
Fresno
COG
will
lead
the
Valleywide
planning

efforts
in
coordination
with
the
SJV
REAP
Committee,
the
Directors’
Committee,
staff
at
the

regional
planning
agencies,
and
other
partners.

2 Distribution
Process
(initial
funding)

Fresno
COG,
on
behalf
of
the
San
Joaquin
Valley,
has
received
$10.2
million
of
initial
funding

(REAP
applications
one
and
two)
for
the
SJV
REAP
process.

The
initial
funding
is
being
made

available
to
the
San
Joaquin
Valley
as
“front
loaded”
grant
funds
for
immediate
distribution.

This

is
not
typical
of
state
planning
grant
funding,
which
is
traditionally
provided
on
a
reimbursable

basis.

The
SJV
REAP
Committee
has
approved
a
pro-‐rata
funding
allocation
methodology
for
the

initial
funding
amount.

Breakdown
of
Initial
Funding

Fresno
Council
of
Governments
$1,114,737.62

Kern
Council
of
Governments

$1,001,370.41

Kings
County
Association
of
Governments

$168,949.28

Madera
County
Transportation
Commission

$172,885.65

Merced
County
Association
of
Governments

$310,394.79

San
Joaquin
Council
of
Governments

$845,097.40

Stanislaus
Council
of
Governments

$607,250.45

Tulare
County
Association
of
Governments

$523,145.14

Subtotal
$4,743,830.75

Funding
for
Valleywide
work
efforts
*
$5,475,000.00

(including
Fresno
COG
administrative
cost)

Total

$10,218,830.75

*$1
million
of
Valleywide
funding
is
to
be
transferred
to
regional
planning
agencies
for

supplemental
RHNA
planning.

See
below,
“Supplemental
RHNA
Planning
Funds.”

Each
regional
planning
agency
is
responsible,
through
their
respective
boards,
to
determine

funding
amounts
and
policies
for
RHNA
planning
and
jurisdictional
suballocations.

Fresno
COG,

the
SJV
Housing
Program
Manager,
and
staff
at
the
eight
regional
planning
agencies
will

coordinate
and
further
develop
policies
and
guidance
for
RHNA
and
suballocation
disbursements

across
the
region,
as
needed.

Initial
funding
distributions
at
the
regional
planning
agency
level
should
prioritize
direct

suballocations
to
jurisdictions,
consistent
with
the
policy
direction
as
approved
by
the
SJV
REAP

Committee
and
the
amounts
approved
in
first
REAP
funding
application.

Fresno
COG
advises
that

regional
planning
agencies
generally
adhere
to
the
jurisdictional
allocation
amounts
approved
by

the
State
of
California
in
the
first
REAP
application
submittal.

Those
amounts
are
detailed
in
the

table
below
and
in
the
attached
REAP
Summary
Funding
Table.

Each
regional
planning
agency
may
use
up
to
five
percent
(5%)
of
funding
for
program

administration
(reporting,
invoicing,
etc.).

Project
management
(staffing)
can
reasonably
be
used

for
program
implementation
outside
of
the
five
percent
administration
figure.

Fresno
COG

3 advises
that
administration
and
project
management
costs
come
out
of
the
RHNA
Planning

amounts
and
not
the
jurisdictional
suballocation
amounts.

*Supplemental
RHNA
Planning
Funds
Due
to
the
limited
pro-‐rata
RHNA
planning
shares,
$1
million
of
Valleywide
funding
will
be

apportioned
equally
to
each
regional
planning
agency
in
the
amount
of
$125,000.

Combined
breakdown
of
initial
and
supplemental
funding
amounts
for
RHNA
planning
and

jurisdictional
suballocations:

RHNA
Planning
Suballocations
Total

Fresno
Council
of
Governments

$477,480
$762,257
$1,239,738

Kern
Council
of
Governments

$441,633
$684,737
$1,126,370

Kings
County
Association
of
Governments

$178,422
$115,527
$293,949

Madera
County
Transportation
Commission

$179,666
$118,219
$297,886

Merced
County
Association
of
Governments

$223,147
$212,248
$435,395

San
Joaquin
Council
of
Governments
$392,220
$577,877
$970,097

Stanislaus
Council
of
Governments

$317,013
$415,238
$732,250

Tulare
County
Association
of
Governments

$290,419
$357,727
$648,145

$2,500,000
$3,243,831
$5,743,831

Please
reference
the
attached
REAP
Summary
Funding
Table
for
additional
information.

Use
of
Funds

The
region,
and
regional
planning
agencies,
shall
establish
priorities
and
use
funding
to
increase

housing
planning
and
accelerate
housing
production.

The
following
are
eligible
activities:

§ RHNA
planning
activities
including
developing
an
improved
methodology
for
the

distribution
of
the
sixth
cycle
RHNA.

§ Providing
jurisdictions
and
other
local
agencies
with
technical
assistance,

planning,
temporary
staffing
or
consultant
needs
associated
with
updating
local

planning
and
zoning
documents,
expediting
application
processing,
and
other

actions
to
accelerate
additional
housing
production.

§ Covering
the
costs
of
administering
any
programs.

§ Suballocating
moneys
directly
and
equitably
to
jurisdictions
or
other
subregional

entities
in
the
form
of
grants,
to
accelerate
housing
production
in
a
way
that
aligns

with
state
planning
priorities,
housing,
transportation,
equity,
and
climate
goals.

§ A
jurisdiction
that
receives
a
suballocation
of
funds
shall
only
use
that

suballocation
for
housing-‐related
planning
activities,
including,
but
not
limited
to,

the
following:

4 Ø Technical
assistance
in
improving
housing
permitting
processes,

tracking
systems,
and
planning
tools.

Ø Facilitating
technical
assistance
between
jurisdictions.

Ø Establishing
regional
or
countywide
housing
trust
funds
for
affordable

housing.

Ø Performing
infrastructure
planning,
including
sewers,
water
systems,

transit,
roads,
or
other
public
facilities
necessary
to
support
new

housing
and
new
residents.

Ø Performing
feasibility
studies
to
determine
the
most
efficient
locations

to
site
housing.

Ø Performing
feasibility
studies
for
affordable
housing
projects
on

surplus
properties
owned
by
school
districts
of
county
offices
of

education.

Ø Covering
the
costs
of
temporary
staffing
or
consultant
needs

associated
with
the
activities
described
above.

The
following
are
ineligible
activities:

§ Activities
unrelated
to
accelerating
housing
production.

§ Activities
unrelated
to
preparation
and
adoption
of
planning
documents,
and

process
improvements
to
accelerate
housing
production.

§ Activities
that
obstruct
or
hinder
housing
production.

§ Capital
financing,
operation
or
funding
related
to
programs
of
individual
housing

development
projects.

§ Administrative
costs
of
persons
employed
by
the
grantee
for
activities
not
directly

related
to
the
preparation
and
adoption
of
the
proposed
Activity
or
Activities.

Distribution
Process
(remaining
funds)

The
remaining
funds
for
Valley
REAP
planning
purposes
are
$8,756,492.25.

An
application
to
the

state
for
the
remaining
funds
needs
has
been
submitted
to
the
State
of
California,
Housing
and

Community
Development
Department
(HCD).

The
SJV
REAP
Committee
has
determined
that
the

remaining
funds
shall
be
allocated
on
a
population
pro-‐rata
basis
to
each
regional
planning

agency
process
for
jurisdictional
suballocations
and
additional
housing
related
activities
at
the

regional
planning
agency
level.

Please
see
attached
REAP
Summary
Funding
Table
for
the

breakdown
by
regional
planning
agency.

All
REAP
funds
shall
be
expended
by
August
31,
2023.

Reporting
Requirements

There
will
be
quarterly,
annual
(by
April
1 of
each
year)
and
a
final
report
(by
December
21,
2024)

required
by
all
entities
that
receive
REAP
funding.

Fresno
COG
and
the
SJV
Housing
Program

Manager
will
work
with
each
regional
planning
agency
to
ensure
compliance
with
State
HCD

reporting
requirements.

San Joaquin Valley REAP Summary Funding Table
< - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Initial Funding - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - > Summary
Phase I Phase II Phase III
(1st app) (2nd app) (3rd app)
Funds Funds Total
Original for Sub Aloc Additional Total Valleywide Supplemental Total Sub Aloc Dedicated to Dedicated to HCD RHNA Cities\County RHNA (a) Phase I Planning RHNA (b) Phase II Cities\County REAP RHNA Program FCOG 187,989 762,257 164,491 1,114,738 4,475,000 125,000 4,600,000 2,057,660 7,294,918 477,480 7,772,398 Kern 168,871 684,737 147,762 1,001,370 125,000 125,000 1,848,399 2,533,136 441,633 2,974,769 Kings 28,492 115,527 24,930 168,949 125,000 125,000 311,858 427,386 178,422 605,808 Madera 29,155 118,219 25,511 172,886 125,000 125,000 319,124 437,344 179,666 617,010 Merced 52,345 212,248 45,802 310,395 125,000 125,000 572,948 785,196 223,147 1,008,343 San Joaquin 142,517 577,877 124,703 845,097 125,000 125,000 1,559,939 2,137,817 392,220 2,530,037 Stanislaus 102,407 415,238 89,606 607,250 125,000 125,000 1,120,905 1,536,143 317,013 1,853,156 Tulare 88,223 357,727 77,195 523,145 125,000 125,000 965,658 1,323,384 290,419 1,613,803 Total 800,000 3,243,831 700,000 4,743,831 4,475,000 1,000,000 5,475,000 8,756,492 16,475,323 2,500,000 18,975,323 Percentage 17% 68% 15% 100% 82% 18% 100% 100% 87% 13% 100% Significant Local Proposed future
Agency Involvement funding, subject to
in REAP process change by HCD
Notes: (a) Sum of Valleywide Tech Assist, Admin and Housing Report that was in the 1st app and subsequently moved to the 2nd app. (b) $1M transferred from Valleywide to regional planning agencies for RHNA planning. Also can be used for admin and project staffing/management.

Phase II (2nd app) Valleywide Budget
Supplemental RHNA 1,000,000
Comprehensive Housing Report 500,000
Housing Report Policy Implem. 1,000,000
Household Travel Survey 500,000
Consultant Bench 1,500,000
Outreach, Marketing 250,000
Fresno COG Admin 300,000
Housing Program Manager 314,200
Reserve/Contingencies 110,800
5,475,000
P
age D-1

ATTACHMENT D

PROFESSIONAL SERVICES CONTRACTS

INSURANCE REQUIREMENTS
C
ONTRACTOR shall provide and maintain insurance for the duration of this Agreement against claims for injuries to persons and damage to property which may arise from, or in connection with, performance under the Agreement by the CONTRACTOR, his agents, rep resentatives, employees, and subcontractors, if applicable.

A. Minimum Scope & Limits of Insurance
1 . C
overage at least as broad as Commercial General Liability, insurance Services Office Commercial Gen- eral Liability coverage occurrence form GC 00 01, with limits no less than $1,000,000 per occurrence in- cluding products and completed operations, property damage, bodily injury, and personal & advertising injury. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occur- rence limit.
2 . I
nsurance Services Office Form Number CA 00 01 covering Automobile Liability of $1,000,000 per oc- currence including any auto or, if the CONTRACTOR has no owned autos, hired and non-owned auto cov- erage. If an annual aggregate applies it must be no less than $2,000,000. 3 . W
orkers’ Compensation insurance as required by the State of California, with Statutory Limits, and Em- ployer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.

4. P
rofessional Liability (Errors and Omissions) insurance appropriate to the CONTRACTOR’s profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.

B. Specific Provisions of the Certificate
1 . I
f the required insurance is written on a claims-made form, the retroactive date must be before the date of the contract or the beginning of the contract work and must be maintained and evidence of insurance must be provided for at least three (3) years after completion of the contract work. 2 . C
ONTRACTOR must submit endorsements to the General Liability reflecting the following provisions:
a. T
CAG and CONTRACTOR, their officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects; liability arising out of work or operations performed by or on behalf of the CONTRACTOR including material, parts, or equipment furnished in connection with such work or op- erations.
b
. For any claims related to this project, the CONTRACTOR’s insurance coverage shall be primary insurance as respects TCAG and CONTRACTOR, their officers, agents, officials, employees, and volunteers. Any insur- ance or self-insurance maintained by TCAG or CONTRACTOR, their officers, agents, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it. c. C
ONTRACTOR hereby grants to TCAG a waiver of any right to subrogation which any insurer of CON- TRACTOR may acquire against the CONTRACTOR by virtue of the payment of any loss under such insurance.

CONTRACTOR agrees to obtain any endorsement that may be necessary to affect this waiver of P
age D-2
subrogation, but this provision applies regardless of whether or not the TCAG or the CONTRACTOR has received a waiver of subrogation endorsement from the insurer. d
. Each insurance policy required by this agreement shall be endorsed to state that coverage shall not be canceled, except after written notice has been provided to TCAG.

3. T
he Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of TCAG and the CONTRACTOR for all work performed by the CONTRACTOR, its employees, agents, and subcon- tractors. CONTRACTOR waives all rights against TCAG and the CONTRACTOR, their officers, agents, officials, employees, and volunteers for recovery of damages to the extent these damages are covered by the work- ers compensation and employer’s liability.

C. Deductibles and Self-Insured Retentions
Deductibles and Self-insured retentions must be declared and any deductible or self-insured retention that exceeds $100,000 will be reviewed by the TULARE COUNTY Risk Manager for approval.

D. Acceptability of Insurance
Insurance must be placed with insurers with a current rating given by A.M. Best and Company of no less than A-:VII and a Standard & Poor’s Rating (if rated) of at least BBB and from a company approved by the Department of Insurance to conduct business in California. Any waiver of these standards is subject to approval by the County Risk Manager.

E. Verification of Coverage
Prior to approval of this Agreement by the TCAG, the CONTRACTOR shall file with the submitting depart- ment, certificates of insurance with original endorsements effecting coverage in a form acceptable to TCAG. Endorsements must be signed by persons authorized to bind coverage on behalf of the insurer.

TCAG and the CONTRACTOR reserve the right to require certified copies of all required insurance policies at any time.

Pa
ge E-1

ATTACHMENT E
TCAG’S GENERAL AGREEMENT TERMS AND CONDITIONS

1. CO
MPLIANCE WITH LAW: CONTRACTOR must provide services in accordance with applicable Federal, State, and local laws, regulations, and directives. With respect to CONTRACTOR'S employees, CONTRAC- TOR must comply with all laws and regulations pertaining to wages and hours, state a nd federal income tax, unemployment insurance, Social Security, disability insurance, workers' compensation insurance, and discrimination in employment.

2. PA
YMENT DOES NOT IMPLY ACCEPTANCE OF WORK: CONTRACTOR is not entitled to any payments under this Agree ment until TCAG confirms that services provided, including any furnished deliverables, satisfy all of the requirements of this Agreement. Payments to CONTRACTOR by TCAG shall not excuse CONTRACTOR from its obligation to replace unsatisfactory deliverables, including equipment, compo- nents, materials, or services even if the unsatisfactory character of such deliverables, equipment, compo- nents, materials, or services may not have been apparent or detected at the time such payment was made.

Deliverables, equipment, components, materials, and services that do not conform to the requirements of this Agreement may be rejected by TCAG and in such case must be replaced by CONTRACTOR without delay and at no cost to the TCAG.

3. DI
SALLOWANCE: If CONTRACTOR requests or receives payment from TCAG for services hereunder, reimbursement for which is later disallowed by the State of California or United States Government, CON- TRACTOR shall promptly refund the disallowed amount to TCAG upon TCAG’S request. At its option, TCAG may offset the amount disallowed from any payment due or to become due to CONTRACTOR under this Agreement or any other Agreement between CONTRACTOR and TCAG. CONTRACTOR'S obligations under this section 2 will survive the expiration or termination of this Agreement.

4. LIA
BILITY OF TCAG: TCAG’S payment obligations under this Agreement shall be limited to the payment of the compensation provided for in section 3, “PAYMENT FOR SERVICES,” of this Agreement. Notwith- standing any other provision of this Agreement, in n o event shall TCAG be liable, regardless of whether any claim is based on contract or tort, for any special, consequential, indirect, or incidental damages, in- cluding, but not limited to, lost profits, arising out of or in connection with this Agreement or the services performed in connection with this Agreement.

5. QU
ALIFIED PERSONNEL: CONTRACTOR shall utilize only competent personnel under the supervision of, and in the employment of, CONTRACTOR (or CONTRACTOR'S authorized subcontractors) to perform the services. CONTRACTOR will comply with TCAG’S reasonable requests regarding assignment and/or re- moval of personnel, but all personnel, including those assigned at TCAG’S request, must be supervised by CONTRACTOR. CONTRACTOR shall commit adequate resources to allow timely completion within the pro- ject schedule specified in this Agreement.

6. IND
EPENDENT CONTRACTOR STATUS: The Parties enter into this Agreement with the express un- derstanding that CONTRACTOR will perform all services required under this Agreement as an independ- ent contractor. The Parties agree that CONTRACTOR and any of its agents, employees, or officers cannot be considered agents, employees, or officers of TCAG.

CONTRACTOR agrees to advise everyone it assigns or hires to perform any duty under this Agreement that they are not employees of TCAG. Subject to any performance criteria contained in this Agreement, CON- TRACTOR will be solely responsible for determining the means and methods of performing the specified services and TCAG will have no right to control or exercise any supervision over CONTRACTOR as to how Page E
-2
CONTRACTOR will perform the services. As CONTRACTOR is not TCAG'S employee, CONTRACTOR is re- sponsible for paying all required state and federal taxes. In particular, TCAG will not:
(1) Withh
old FICA (Social Security) from CONTRACTOR'S payments.
(2) Make state or federal unemployment insurance contributions on CONTRACTOR'S behalf.
(3) Withhold state or federal income tax from payments to CONTRACTOR. (4) Make disability insurance contributions on behalf of CONTRACTOR. (5) Obtain unemployment compensation insurance on behalf of CONTRACTOR.

Notwit
hstanding this independent contractor relationship, TCAG will have the right to monitor and evalu- ate the performance of CONTRACTOR to assure compliance with this Agreement.

7. LICEN
SES AND PERMITS: CONTRACTOR represents and warrants that it possesses and will maintain during the term of this Agreement all licenses and permits required for its performance of the services required under this Agreement.

8. GOVERN
ING LAW: The laws of the State of California, without reference to California conflict of laws principles, govern this Agreement and its interpretation. The Parties agree that this Agreement is made in and will be performed in Tulare County, California.

9. RECOR
DS AND AUDIT: CONTRACTOR must maintain complete and accurate records with respect to the services rendered and the costs incurred under this Agreement. In addition, CONTRACTOR must main- tain complete and accurate records with respect to any payments to employees or subcontractors. All of the records must be prepared in accordance with generally accepted accounting procedures, must be clearly identified, and must be kept readily accessible. Upon request, CONTRACTOR must make the records available within Tulare County to the Auditor of Tulare County and to his or her agents and representatives, for the purpose of auditing and/or copying the records for a period of five (5) years from the date of final payment under this Agreement. Additional record-keeping requirements may be located in Exhibit F or G (related to federally-funded contracts generally, or FTA-funded contracts specifically).

10. CONF
LICT OF INTEREST:
(a) At all times during the performance of this Agreement, CONTRACTOR must comply with the law of the State of California regarding conflicts of interests and appearance of conflicts of interests, including, but not limited to, Government Code Section 1090 et seq. , and the Political Reform Act, Government Code Section 81000 et seq., and regulations promulgated by the California Fair Political Practices Commission.

The statutes, regulations, and laws previously referenced include, but are not limited to, prohibitions against any public officer or employee, including CONTRACTOR for this purpose, from making any decision on behalf of TCAG in which the officer, employee, or consultant/contractor has a direct or indirect financial interest. A violation can occur if the public officer, employee, or consultant/contractor participates in or influences any TCAG decision that has the potential to confer any pecuniary benefit on CONTRACTOR or any business firm in which CONTRACTOR has an interest, with certain narrow exceptions. (b) CONTR
ACTOR agrees that if any facts come to its attention that raise any questions as to the applica- bility of conflicts -of-interests laws, then it will immediately inform TCAG and provide all information needed for resolution of this question.

11.INSURANCE: The attached Attachmet E outlines the minimum scope, specifications, and l imits of insurance required under this Agreement. Additional i nsured endorsements required as outlined i n Attachment E cannot be used to reduce limits available to TCAG as an additional insured from Pag
e E-3
CONTRACTOR's full policy limits. Insurance policies cannot be used to limit liability or to limit the indemnification provisions and requirements of this Agreement or act in any way to reduce the policy coverage and limits available from the insurer(s). If CONTRACTOR fails to maintain or renew coverage, or to provide evidence of renewal, then TCAG may consider that failure a material breach of this Agreement. TCAG may also withhold any payment otherwise due to CONTRACTOR for failure to provide evidence of renewal until CONTRACTOR provides such evidence.

12. IN
DEMNIFICATION AND DEFENSE:
(a) To the fullest extent permitted by law, CONTRACTOR must indemnify, defend (at CONTRACTOR'S sole cost and expense and with legal counsel approved by TCAG, which approval may not be unreasonably withheld), protect and hold harmless TCAG, all subsidiaries, divisions, committee, and affiliated agencies of TCAG, and all of their representatives, partners, designees, officers, directors, employees, consultants, agents, successors, and assigns, (each, an “Indemnified Party” and collectively, the "Indemnified Parties"), from and against all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, pen- alties, liabilities, costs, and expenses (including, without limitation, attorneys' fees, disbursements, and court costs, and all other professional expert or consultants' fees and costs and TCAG general and admin- istrative expenses) of every kind and nature whatsoever (individually, a "Claim"; collectively, "Claims") which may arise out of, pertain to, or relate (directly or indirectly) to the negligence, recklessness, or mis- conduct of CONTRACTOR with respect to any work performed or services provided under this Agreement (including, without limitation, the acts, errors, and/or omissions of CONTRACTOR, its principals, officers, agents, employees, vendors, suppliers, consultants, sub -consultants, contractors, and anyone employed directly or indirectly by any of them, or for whose acts they may be liable, or any or all of them). CON- TRACTOR’S obligation to indemnify applies unless it is finally adjudicated that the liability was caused by the sole active negligence or sole willful misconduct of an Indemnified Party. If it is finally adjudicated that liability is caused by the comparative active negligence or willful misconduct of an Indemnified Party, then CONTRACTOR’S indemnification obligation shall be reduced in proportion to the established comparative liability.
(b) Th
e duty to defend is a separate and distinct obligation from CONTRACTOR’S duty to indemnify. CON- TRACTOR shall be obligated to defend, in all legal, equitable, administrative, or special proceedings, the Indemnified Parties immediately upon tender to CONTRACTOR of the Claim in any form or at any stage of an action or proceeding, whether or not liability is established. Payment to CONTRACTOR by any Indem- nified Party or the payment or advance of defense costs by any Indemnified Party cannot be a condition precedent to enforcing the Indemnified Party's rights to indemnification under this Agreement. An allega- tion or determination that persons other than CONTRACTOR are responsible for the Claim does not relieve CONTRACTOR from its separate and distinct obligation to defend under this section. The obligation to de- fend extends through final judgment, including exhaustion of any appeals. The defense obligation includes an obligation to provide independent defense cou nsel if CONTRACTOR asserts that liability is caused in whole or in part by the negligence or willful misconduct of an Indemnified Party. If it is finally adjudicated that liability was caused by the comparative active negligence or willful misconduct of an Indemnified Party, then CONTRACTOR may submit a claim to the TCAG for reimbursement of reasonable attorneys’ fees and defense costs in proportion to the established comparative liability of the Indemnified Party.

CONTRACTOR'S indemnification obligations under this Agreement will survive the expiration or earlier ter- mination of this Agreement until action against the Indemnified Parties for the matter indemnified is fully and finally barred by the applicable statute of limitations or statute of repose. CONTRACTOR'S liability for indemnification under this Agreement is in addition to any liability CONTRACTOR may have to TCAG for a breach by CONTRACTOR of any of the provisions of this Agreement. Under no circumstances may the in- surance requirements and limits set forth in this Agreement be construed to limit CONTRACTOR'S P
age E-4
indemnification obligation or other liability under this Agreement. The terms of this Agreement are con- tractual and the result of negotiation between the Parties. (c) C
ONTRACTOR must indemnify and hold TCAG harmless from all loss and liability, including attorneys’ fees, court costs and all other litigation expenses, for any infringement of the patent rights, copyright, trade secret or any other proprietary right or trademark, and all other intellectual property claims of any person or persons in consequence of the use by TCAG, or any of its officers or agents, of articles or services to be supplied in the performance of this Agreement.
1 3. TERMINATION:
(a) Without Cause: TCAG may terminate th is Agreement without cause by giving thirty (30) days’ prior written notice to CONTRACTOR of its intention to terminate under this provision, specifying the date of termination. TCAG will pay to CONTRACTOR the compensation earned for work satisfactorily pe rformed and not previously paid for to the date of termination. TCAG will not pay lost anticipated profits or other economic loss. The payment of any compensation is subject to the restrictions on payment of compensa- tion otherwise provided in this Agreement and is conditioned upon receipt from CONTRACTOR of all plans, specifications and estimates, and other documents prepared by CONTRACTOR in accordance with this Agreement. TCAG will not impose sanctions on CONTRACTOR under these circumstances. (b
) With Cause: Either Party may terminate this Agreement immediately, by written notice to the other Party, should the other Party:
(1
) Be adjudged a bankrupt, or
(2) Become insolvent or have a receiver appointed, or
(3) Make a general assignment for the benefit of creditors, or (4) Suffer any judgment that remains unsatisfied for 30 days, and that would substantively impair the ability of the judgment debtor to perform under this Agreement, or (5) Materially breach this Agreement.

I
n addition, TCAG may terminate this Agreement based on:
(6
) Material misrepresentation, either by CONTRACTOR or anyone acting on CONTRACTOR’S behalf, as to any matter related in any way to TCAG’S retention of CONTRACTOR, or (7) Other misconduct or circumstances that, in the sole dis cretion of TCAG, either impairs the ability of CONTRACTOR to competently provide the services under this Agreement or exposes TCAG to an unrea- sonable risk of liability.

F
or any of the occurrences except item (5) above, termination may be effected upon written notice by the terminating Party specifying the date of the termination. If CONTRACTOR fails to perform according to the terms and conditions of this Agreement, then TCAG may, in addition to any other remedy it may have, issue a declaration of default after 10 days’ written notice to CONTRACTOR.

Up
on a material breach, the Agreement may be terminated after the failure of the defaulting Party to remedy the breach to the satisfaction of the non-defaulting Party within 5 days of written notice specifying the breach. If the breach is not remedied within that 5 -day period, then the non -defaulting Party may terminate this Agreement on further written notice specifying the date of termination. If the nature of the breach is such that it cannot be cured within a 5-day period, then the defaulting Party may submit a written proposal within that period which sets forth a specific means to resolve the default. If the non-defaulting Party consents to that proposal in writing, which consent may not be unreasonably withheld, then the defaulting Party must immediately embark on its plan to cure the default or breach. If the default or breach P
age E-5
is not cured within the time agreed, then the non -defaulting Party may terminate this Agreement upon written notice specifying the date of termination.

T
CAG will pay to CONTRACTOR the compensation earned for work satisfactorily performed and not previ- ously paid for to the date of termination. The payment of such compensation is subject to the restrictions on payment of compensation otherwise provided in this Agreement and is conditioned upon receipt from CONTRACTOR of all plans, specifications and estimates, and other documents prepared by CONTRACTOR by the date of termination in accordance with this Agreement. TCAG will not pay lost anticipated profits or other economic loss, nor will TCAG pay compensation or make reimbursement to cure a breach arising out of or resulting from such termination. If TCAG terminates this Agreement for cause and the expense of finishing CONTRACTOR’S scope of work exceeds the unpaid balance of the Agreement, then CONTRAC- TOR must pay the difference to TCAG. TCAG may impose sanctions under these circumstances, which may include possible rejection of future proposals based on specific causes of CONTRACTOR’S no n-perfor- mance.
(c) E
ffects of Expiration or Termination: Expiration or termination of this Agreement will not terminate any obligations to indemnify, to maintain and make available any records pertaining to the Agreement, to cooperate with any audit, to be subject to offset, or to make any reports of pre -termination contract ac- tivities. Where TCAG terminates CONTRACTOR’S services, that termination will not affect any rights of TCAG to recover damages against CONTRACTOR.
(
d) Suspension of Perfor mance: Independent of any right to terminate this Agreement, the Executive Director of TCAG may immediately suspend performance by CONTRACTOR, in whole or in part, in response to health, safety or financial emergency, or a failure or refusal by CONTRACTOR to comply with the provi- sions of this Agreement, until such time as the cause for suspension is resolved, or a notice of termination becomes effective.
1 4. LOSS OF FUNDING: It is understood and agreed that if TCAG’S funding is either discontinu ed or re- duced for the services to be provided hereunder, then TCAG will have the right to terminate this Agree- ment under section 13 (a) (“Termination Without Cause”) as of the end of the term for which funds are appropriated. Such termination shall be without penalty, liability, or expense to TCAG of any kind, provided that TCAG shall pay CONTRACTOR in accordance with section 13 (a) for services satisfactorily performed prior to the date of such termination and to the extent funds have been appropriated for such payment. 1 5. SUBMITTING FALSE CLAIMS; MONETARY PENALTIES: Under applicable federal and state law, if CON- TRACTOR submits a false claim to TCAG under this Agreement, then CONTRACTOR will be liable to TCAG for the statutory penalties set forth in those statutes, including but not limited to statutory fines, treble damages, costs, and attorneys’ fees. CONTRACTOR will be deemed to have submitted a false claim to TCAG if CONTRACTOR:
(
a) Knowingly presents or causes to be presented to TCAG a false claim o r request for payment or ap- proval;
(
b) Knowingly makes, uses, or causes to be made or used a false record or statement to get a false claim paid or approved by TCAG;
(c) C
onspires to defraud TCAG by getting a false claim allowed or paid by TCAG; (
d) Knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to TCAG; or P
age E-6
(
e) Is a beneficiary of an inadvertent submission of a false claim to TCAG, later discovers the falsity of the claim, and fails to disclose the false claim to TCAG within a reasonable time after discovery of the false claim.
1 6. FORM DE-542: If CONTRACTOR is an individual, CONTRACTOR acknowledges that this Agreement is subject to filing obligations under Unemployment Insurance Code Section 1088.8. Accordingly, TCAG has an obligation to file a report with the Employment Development Department, which report will include CONTRACTOR’S full name, social security number, address, the date t his Agreement was executed, the total amount of the Agreement, its expiration date or whether it is ongoing. CONTRACTOR agrees to co- operate with TCAG to make that information available and to complete Form DE- 542. Failure to provide the required information may, at TCAG’S option, prevent approval of this Agreement, or be grounds for termination by TCAG.
1 7. WORKS FOR HIRE: CONTRACTOR acknowledges that all work(s) under this Agreement are "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby as- signs to TCAG all rights and interests CONTRACTOR may have in the work(s) it prepares under this Agree- ment, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Agreement for TCAG will be the sole property of TCAG, and CON- TRACTOR hereby assigns and transfers all its right, title, and interest therein to TCAG. CONTRACTOR will execute all necessary documents to enable TCAG to protect TCAG’S intellectual property rights under this section.
1 8. WORK PRODUCT: All work product, equipment, or materials created for TCAG or purchased by TCAG under this Agreement belong to TCAG and CONTRACTOR must immediately deliver them to TCAG at TCAG’S request upon termination or completion of this Agreement. 1 9. TIME OF ESSENCE: The Parties agree that time is of the essence under this Agreement unless they agree otherwise in writing.
2 0. CONFIDENTIALITY: CONTRACTOR may not use or disclose any information it receives from TCAG under this Agreement that TCAG has previously identified as confidential or exempt from mandatory public dis- closure except as necessary to carry out the purposes of this Agreement or as authorized in advance by TCAG. Unless required to do so by law, including, but not limited to, the Ralph M. Brown Act or the Cali- fornia Public Records Act, TCAG may not disclose to third parties any information it receives from CON- TRACTOR that CONTRACTOR has previously identified as confidential. If TCAG determines that it must dis- close any information that CONTRACTOR previously identified as confidential, then it shall promptly give CONTRACTOR written notice of its intention to disclose such information and the authority for such dis- closure. CONTRACTOR shall have period of five (5) calendar days thereafter within which to seek a protec- tive court order to prevent such disclosure or to notify TCAG that it will not seek such an order. TCAG shall cooperate with CONTRACTOR in any efforts to seek such a court order. TCAG shall not disclose the infor- mation until the five (5) day period has expired without a response from CONTRACTOR, or CONTRACTOR has notified TCAG that it will not seek such an order, or CONTRACTOR has sought and a court has declined to issue a protective order for such information. If CONTRACTOR seeks a protective order for such infor- mation, CONTRACTOR shall defend and indemnify TCAG from any and all loss, injury, or claim arising from TCAG’S withholding of the information from the requestor. This includes any attorney’s fees awarded to the requestor. The duty of TCAG and CONTRACTOR to maintain confidentiality of information under this section continues beyond the term of this Agreement.

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21. ASSIGNMENT/SUBCONTRACTING: Unless otherwise provided in this Agreement, TCAG is relying on the personal skill, expertise, training and experience of CONTRACTOR and CONTRACTOR'S employees and no part of this Agreement may be assigned or subcontracted by CONTRACTOR without the prior written consent of TCAG, which consent TCAG may grant, delay, deny, or condition in its absolute discretion.

22. DISP
UTES AND DISPUTE RESOLUTION: CONTRACTOR shall continue with its responsibilities under this Agreement during any dispute. If a dispute arises out of or relating to this Agreement, or the breach of the Agreement, and if the dispute cannot be settled through negotiation, then the Parties agree first to try in good faith to settle the dispute by non -binding mediation, to be held in Tulare County, California, before resorting to litigation or some other dispute resolution procedure, unless the Parties mutually agree oth- erwise. The Parties must mutually select the mediator, but in case of disagreement, then the Parties wi ll select the mediator by lot from among two nominations provided by each Party. The Parties will split equally all costs and fees required by the mediator; otherwise, each Party will bear its own costs of medi- ation. If mediation fails to resolve the dispu te within 30 days, then either Party may pursue litigation to resolve the dispute.

23. PROP
ERTY TAXES: Under the terms of California Revenue and Taxation Code section 107.6 (possessory interest tax), CONTRACTOR’S possession or use of any TCAG -owned real property under this Agreement may create a “possessory interest” in the real property. If a possessory interest is created, then it may be subject to property taxation and CONTRACTOR may be subject to the payment of property taxes on that possessory interest.

24. FURT
HER ASSURANCES: Each Party will execute any additional documents and perform any further acts that may be reasonably required to effect the purposes of this Agreement.

25. CONS
TRUCTION: This Agreement reflects the contributions of all Parties and so the provisions of Civil Code section 1654 will not apply to address and interpret any alleged uncertainty or ambiguity.

26. HEA
DINGS: Section headings are provided for organizational purposes only and do not in any manner affect the scope, meaning, or intent of the provisions under the headings.

27. NO T
HIRD-PARTY BENEFICIARIES INTENDED: Unless specifically set forth, the Parties to this Agree- ment do not intend to provide any other party with any benefit or enforceable legal or equitable right or remedy.

28. WAI
VERS: The failure of either Party to insist on strict compliance with any provision of this Agreement will not be considered a waiver of any right to do so, whether for that breach or any later breach. The acceptance by either Party of either performance or payment will not be considered a waiver of any pre- ceding breach of the Agreement by the other Party.

29. ORD
ER OF PRECEDENCE: In the event of any conflict or inconsistency between or among the body of the Agreement (which includes these “General Agreement Terms and Conditions”) and any Exhibit, Sched- ule, or Attachment, then the terms and conditions of the body of the Agreement shall prevail.

30. CON
FLICT WITH LAWS OR REGULATIONS/ SEVERABILITY: This Agreement is subject to all applicable laws and regulations. If any provision of this Agreement is found by any court or other legal authority, or is agreed by the Parties to be, in conflict with any code or regulation governing its subject matter, only the conflicting provision will be considered null and void. If the effect of nullifying any conflicting provision is such that a material benefit of the Agreement to either Party is lost, then the Agreement may be Pag
e E-8
terminated at the option of the affected Party. In all other cases, the remainder of the Agreement will continue in full force and effect.

31. ENT
IRE AGREEMENT: This Agreement represents the entire agreement between CONTRACTOR and TCAG as to its subject matter and no prior oral or written understanding will be of any force or effect. No part of this Agreement may be modified without the written consent of both Parties.

32. AS
SURANCES OF NON-DISCRIMINATION: CONTRACTOR must not discriminate in employment or in the provision of services based any characteristic or condition upon which discrimination is prohibited by state or federal law or regulation. The Parties recognize that both CONTRACTOR and TCAG have the re- sponsibility to protect TCAG employees and clients from unlawful activities, including discrimination and sexual harassment in the workplace. Accordingly, CONTRACTOR agrees to provide appropriate training to its employees regarding discrimination and sexual harassment issues, and to promptly and appropriately investigate any allegations that any of its employees may have engaged in improper discrimination or har- assment activities. TCAG, in its sole discretion, has the right to require CONTRACTOR to replace any em- ployee who provides services of any kind to TCAG under this Agreement with other employees where TCAG is concerned that its employees or clients may have been or may be the subjects of discrimination or harassment by such employees. TCAG’S right to require replacement of employees under this section does not preclude TCAG from terminating this Agreement with or without cause as provided for under this Agreement. Additional nondiscrimination requirements may be located in Exhibit F or G (related to federally-funded contracts generally, or FTA-funded contracts specifically).

33. DR
UG-FREE WORKPLACE POLICY: CONTRACTOR acknowledges that under the Federal Drug- Free Workplace Act of 1989 and the California Drug -Free Workplace Act of 1990, the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited on TCAG premises.

CONTRACTOR agrees that any violation of this prohibition by CONTRACTOR, its employees, agents, or as- signs will be deemed a material breach of this Agreement.

34. RE
CYCLED PAPER CONTENT: To the extent CONTRACTOR’S services under this Agreement include printing services, pursuant to Public Contract Code section 22153, CONTRACTOR shall use paper that meets the recycled content requirements of Public Contract Code section 12209.

Jlk/6-14-21/2021557/1638619.docx

Visalia City CouncilMay 16, 2022

Visalia City Council
May 16, 2022