cexpressed written consent of Ryan E. Oldham. oldham ISSUE: SCALE: DRAWN: PROJECT No.:
New Addition to Clubhouse
Black Gold Golf Club
1 Black Gold Dr, Yorba Linda, CA 92886 RP 25001 Black and Gold Golf Club SHEET NUMBER: SHEET TITLE: CONSULTANT.: JOB No.: 25-424 MECHANICAL PLANS, SCHEDULES & NOTES MECHANICAL PLANS, SCHEDULES & NOTES 1/4"=1'-0" SCALE: 1/4"=1'-0" M001 A.R.Momeni Page 575 of 1224
c COPYRIGHT; Oldham Architects expressly reserves all rights to these plans by common copyright privileges. These plans may not be reproduced, changed, or copied in any manner or turned over to a third party without the expressed written consent of Ryan E. Oldham. oldham architects ISSUE: CHECK: DRAWN: PROJECT No.: New Addition to Clubhouse Black Gold Golf Club
1 Black Gold Dr, Yorba Linda, CA 92886 08.16.25 BUILDING SUBMITTAL #1 ROLH 25001 oldham architect s 680 Langsdorf Drive, Suite 202B fullerton, california 92831 714.482.8296 | oldham-architects.com Black and Gold Golf Club 10.24.25 BUILDING SUBMITTAL #2 RFG-1 Refrigeration Spec - Page 579 of 1224
c COPYRIGHT; Oldham Architects expressly reserves all rights to these plans by common copyright privileges. These plans may not be reproduced, changed, or copied in any manner or turned over to a third party without the expressed written consent of Ryan E. Oldham. oldham architects ISSUE: CHECK: DRAWN: PROJECT No.: New Addition to Clubhouse Black Gold Golf Club
1 Black Gold Dr, Yorba Linda, CA 92886 08.16.25 BUILDING SUBMITTAL #1 ROLH 25001 oldham architect s 680 Langsdorf Drive, Suite 202B fullerton, california 92831 714.482.8296 | oldham-architects.com Black and Gold Golf Club 10.24.25 BUILDING SUBMITTAL #2 RFG-2 Cooler Plan - Page 580 of 1224
c COPYRIGHT; Oldham Architects expressly reserves all rights to these plans by common copyright privileges. These plans may not be reproduced, changed, or copied in any manner or turned over to a third party without the expressed written consent of Ryan E. Oldham. oldham architects ISSUE: CHECK: DRAWN: PROJECT No.: New Addition to Clubhouse Black Gold Golf Club
1 Black Gold Dr, Yorba Linda, CA 92886 08.16.25 BUILDING SUBMITTAL #1 ROLH 25001 oldham architect s 680 Langsdorf Drive, Suite 202B fullerton, california 92831 714.482.8296 | oldham-architects.com Black and Gold Golf Club 10.24.25 BUILDING SUBMITTAL #2 RFG-3 Cooler Detail - Page 581 of 1224 Contract
Services
Agreement
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CONTRACT SERVICES AGREEMENT
BLACK GOLD GOLF CLUB
WALK-IN COOLER PROJECT
THIS CONTRACT SERVICES AGREEMENT (“Agreement”) is made and effective this _________ day of ___________, 2026 by and between the CITY OF YORBA LINDA, a California municipal corporation, (“City”) and «Contractor», a «Entity_Type» (“Contractor”). City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties”.
City sought, by issuance of a Request for Proposals or Invitation for Bids, for the performance of the services defined and described particularly in this Agreement.
Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in this Agreement, was selected by City to perform those services. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in this Agreement and desire that the terms of that performance be as particularly defined and described herein.
SECTION 1. SERVICES.
1.1 Scope of Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the services described in the Scope of Services, attached hereto as Exhibit A, “Scope of Services” and incorporated herein by this reference (the “Services”). Contractor will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. The Scope of Services incorporates Contractor’s scope of work or bid for the Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
1.2 Term of Services. The term of this Agreement shall begin on «Term_of_Contract_Beginning». Unless earlier terminated in accordance with Section 8 of this Agreement, this Agreement shall continue in full force and effect until final written approval and acceptance of the work performed under this Agreement by the Contract Administrator. The time provided to Contractor to complete the Services required by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in Section 8.
1.3 Standard of Performance.
a. Quality of Work. As a material inducement to City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Contractor shall at all times faithfully, competently, and to
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the best of its ability, experience, and talent, perform all Services described herein.
Contractor covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances, and to the sole satisfaction of the Contract Administrator.
b. Care of Work. Contractor shall adopt reasonable methods during the term of this Agreement to furnish continuous protection to the Services, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.
c. Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out the Services, Contractor shall at all times be in compliance with all applicable local, state, and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to:
(A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. d. Warranty. Contractor warrants all work under this Agreement (which for purposes of this Subsection 1.3 shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship.
Contractor agrees that for a period of one (1) year (or the period of time specified elsewhere in this Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by City of any defect in the work or non-conformance of the work to this Agreement, commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at Contractor’s sole cost and expense. Contractor shall act sooner as requested by City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by Contractor’s defective work or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected work. Contractor
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shall perform such tests as City may require to verify that any corrective actions, including, without limitation, redesign, repairs, and replacements comply with the requirements of this Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers, and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of City, regardless of whether or not such warranties and guarantees have been transferred or assigned to City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of City, City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense.
Contractor shall be obligated to fully reimburse City for any expenses incurred hereunder upon demand.
e. Skilled and Trained Workforce. Contractor, for itself and its subcontractors at every tier, hereby provides an enforceable commitment to comply with California Public Contract Code section 2600 et seq., which requires use of a skilled and trained workforce to perform all work on the agreements that fall within an apprenticeable occupation in the building and construction trades.
f. Inspection and Final Acceptance. The Services shall be performed to the satisfaction of City. City may inspect and accept or reject any of Contractor’s work under this Agreement, during performance and/or when completed. City shall reject or finally accept Contractor’s work within forty five (45) days after submitted to City. City shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud, and such gross mistakes as amount to fraud. Acceptance of any work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 4 and Section 5, pertaining to insurance and indemnification, respectively.
1.4 Assignment of Personnel. Contractor shall assign only competent personnel to perform the Services. Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the Services. Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the Services, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Contractor shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
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1.5 Time. Time is of the essence in the performance of this Agreement.
Contractor shall devote such time to the performance of the Services pursuant to this Agreement as may be reasonably necessary to satisfy Contractor’s obligations hereunder. Contractor shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the Scope of Services. When requested by Contractor, extensions to the time period(s) specified in the Scope of Services may be approved in writing by the Contract Administrator but not shall not exceed one hundred eighty (180) days cumulatively.
1.6 Force Majeure. The time period(s) specified in the Scope of Services for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Contractor shall within ten (10) days of the commencement of such delay notify the Contract Administrator in writing of the causes of the delay. The Contract Administrator shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the sole judgment of the Contract Administrator such delay is justified. The Contract Administrator’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of this Agreement pursuant to this Section.
1.7 Suspension of Services. The City Engineer of City (“Engineer”) shall have the authority to suspend the Services, wholly or in part, for such period as the Engineer may deem necessary, due to unsuitable weather or to such other conditions as are considered unfavorable for the suitable prosecution of the Services, or for such time as the Engineer may deem necessary due to the failure on the part of Contractor to carry out orders given or to perform any provisions of the Services. Contractor shall immediately comply with the written order of the Engineer to suspend the Services wholly or in part and shall not resume the Services until ordered to do so in writing by the Engineer. Such suspension shall be without liability to Contractor on the part of City. In the event a suspension of work is ordered because of failure on the part of Contractor to carry out orders given or to perform any provisions of the Services, such suspension of the Services shall not relieve Contractor of responsibility to complete the Services within the time limit set forth herein and shall not be considered cause for extension of the time for completion and, further, such suspension of the Services shall not entitle Contractor to any additional compensation.
1.8 Familiarity with Work and Worksite. By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the Services, (ii) has carefully considered how the Services should be performed, and (iii)
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fully understands the facilities, difficulties, and restrictions attending performance of the Services. If the Services involve work upon any site, Contractor warrants that Contractor has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of the Services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Contractor shall immediately inform City of such fact and shall not proceed until written instructions are received from the Contract Administrator.
1.9 Further Responsibilities of the Parties. Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless otherwise specified in this Agreement, neither Party shall be responsible for the service of the other.
SECTION 2. COMPENSATION.
2.1 Contract Amount. City hereby agrees to pay Contractor a sum not to exceed «CONTRACT_AMOUNT_SPELLED_OUT» («Contract_Amount») notwithstanding any contrary indications that may be contained in Contractor’s proposal or bid, for the Services to be performed and reimbursable costs incurred under this Agreement. This compensation may be administratively adjusted pursuant to Section 8.4 herein. In the event of a conflict between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Contractor for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified in this Section 2 shall be the only payments from City to Contractor for the Services rendered pursuant to this Agreement. Contractor shall submit all invoices to City in the manner specified herein.
2.2 Method of Compensation. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with specified tasks or the percentage of completion of the Services, (iii) payment for time and materials based upon Contractor’s rates as specified in the Scope of Services, provided that time estimates are provided for the performance of subtasks, or (iv) such other methods as may be specified in the Scope of Services. In no event shall compensation exceed the amount set forth in Subsection 2.1.
2.3 Invoices. Contractor shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Subcontractor charges shall also be detailed by such categories. Invoices shall contain:
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a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
b. The beginning and ending dates of the billing period; c. A “Task Summary” containing the original contract amount, the amount of prior billings, the total due this period, the balance available under this Agreement, and the percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person performing the Services, the hours spent by each person, a brief description of the Services, and each reimbursable expense;
e. The total number of hours of work performed under this Agreement by Contractor and each employee, agent, and subcontractor of Contractor performing the Services hereunder necessary to complete the Services described in Exhibit A; f. Receipts for expenses to be reimbursed;
g. The Principals’ signatures.
Invoices shall be submitted to:
City of Yorba Linda
Attn: Accounts Payable
4845 Casa Loma Ave
Yorba Linda, CA 92886
2.4 City Payment of Invoices. City shall independently review each invoice submitted by Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause Contractor to be paid within thirty (30) days of receipt of Contractor’s correct and undisputed invoice. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission.
Pursuant to California Public Contract Code Section 20104.50, Contractor is notified that for public works Services, City’s failure to pay undisputed and properly submitted invoices within thirty (30) days shall be subject to interest at the legal rate set forth in Code of Civil Procedure Section 685.010. Any invoice for public works Services determined not to be a proper invoice suitable for payment shall be returned to the Contractor as soon as practicable, but not later than seven (7) days, after receipt. An invoice returned pursuant to the foregoing shall be accompanied by a writing stating the reasons why the invoice is not proper.
2.5 Retention of Funds, Final Payment.
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a. Contractor hereby authorizes City, in the sole discretion of the Contract Administrator, to retain and deduct from any amount payable to Contractor not exceeding five percent (5%) of the total compensation The retained funds shall be paid to Contractor within sixty (60) days after final acceptance of the Services by the City and after Contractor has furnished City with full release of all undisputed payments under this Agreement. In the event there are any claims specifically excluded by Contractor from the operation of the release, City may retain proceeds of up to one hundred fifty percent (150%) of the amount in dispute. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Contractor to insure, indemnify, and protect City as provided in this Agreement. b. Notwithstanding Paragraph a, California Public Contract Code Section 22300 permits the substitution of securities for any retention monies withheld by City for public works Services. At the request and expense of Contractor, securities equivalent to the monies withheld shall be deposited with City, or with a state or federally chartered bank in California as the escrow agent, who shall then pay such monies to Contractor. City retains the sole discretion to approve the bank selected by Contractor to serve as escrow agent. Upon satisfactory completion of the Services, the securities shall be returned to Contractor. Securities eligible for investment shall include those listed in Government Code Section 16430. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. In the alternative, under California Public Contract Code Section 22300, Contractor may request City to make payment of earned retention monies directly to the escrow agent at the expense of Contractor. Also at Contractor’s expense, Contractor may direct investment of the payments into securities, and Contractor shall receive interest earned on such investment upon the same conditions as provided for securities deposited by Contractor.
Upon satisfactory completion of the Services, Contractor shall receive from the escrow agent all securities, interest and payments received by escrow agent from City pursuant to the terms of California Public Contract Code Section 22300.
2.6 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Contractor in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Contractor submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entirety of the Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior to the submission of such an invoice.
2.7 Hourly Fees. Fees for the Services performed by Contractor on an hourly basis shall not exceed the amounts shown on Exhibit A.
2.8 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement. Reimbursable expenses not listed in Exhibit A must be approved in advance by the Contract Administrator, in his or her sole discretion.
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Contractor shall not be entitled to any additional compensation for the attendance of meetings reasonably deemed necessary by City for the execution of the Services.
2.9 Payment of Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.10 Payment upon Termination. In the event that City or Contractor terminates this Agreement pursuant to Section 8, City shall compensate Contractor for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for reimbursable expenses as of the date of written notice of termination.
Contractor shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
2.11 No Waiver. Payment to Contractor for Services performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
SECTION 3. FACILITIES AND EQUIPMENT.
3.1 Contractor Provides Facilities and Equipment. Except as otherwise provided, Contractor shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. In no event shall City be required to furnish any facility or equipment that may involve incurring any direct expense.
3.2 Utility Relocation. Where applicable, pursuant to California Government Code Section 4215, City is responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse Contractor for any costs incurred in locating, repairing damage not caused by Contractor, and removing or relocating such unidentified utility facilities. Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.
3.3 Trenches or Excavations. Pursuant to California Public Contract Code Sections 6705 and 7104, in the event the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply. a. Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) subsurface or latent physical conditions at the site different from those indicated by information about the site made available to bidders prior to the deadline for submitting bids; or (3) unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement.
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b. If the Services involve an estimated expenditure in excess of TwentyFive Thousand Dollars ($25,000) for the excavation of any trench or trenches five (5) feet or more in depth, Contractor shall submit for acceptance by the City Engineer, in advance of excavation, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer. c. City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the work shall issue an order or amendment for additional services pursuant to Subsection
8.4 or 8.5 of this Agreement.
d. If a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor’s cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date provided for by this Agreement, but shall proceed with all work to be performed under this Agreement.
Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the Parties.
SECTION 4. INSURANCE AND BOND REQUIREMENTS.
Before beginning any work under this Agreement, Contractor, at its own cost and expense, shall procure the types and amounts of insurance listed below and provide certified copies of insurance policies and original endorsements, indicating that Contractor has obtained or currently maintains insurance that meets the requirements of this Section and which is satisfactory, in all respects, to City. Contractor shall also deliver the payment and performance bonds required by this Section 4 with City. Contractor shall maintain the insurance policies required by this Section throughout the term of this Agreement. The cost of such insurance shall be included in Contractor’s compensation.
Contractor shall not allow any subcontractor, Contractor or other agent to commence work on any subcontract until Contractor has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City, and has delivered the required bonds to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Contractor acknowledges the insurance policy must cover inter-insured suits between City and other insureds. Contractor agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which Contractor may be held responsible for the payment of damages to any persons or property resulting from Contractor’s activities or the activities of any person or persons for which Contractor is otherwise responsible nor shall it limit Contractor’s indemnification liabilities as provided in Section 5. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in
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the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Contract Administrator in the Contract Administrator’s sole discretion. If this Agreement continues for more than three (3) years duration, or in the event the Contract Administrator determines that the Services to be performed under this Agreement creates an increased or decreased risk of loss to City, Contractor agrees that the minimum limits of the insurance policies and the performance bond required by Section 4 may be changed accordingly upon receipt of written notice from the Contract Administrator; provided that Contractor shall have the right to appeal a determination of increased coverage by the Contract Administrator to the City Council of City within ten (10) days of receipt of notice from the Contract Administrator.
4.1 Workers’ Compensation. Contractor shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Contractor pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy.
In the alternative, Contractor may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Contractor, if a program of selfinsurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement. Pursuant to California Labor Code Section 1860, Contractor is required to secure the payment of compensation to Contractor’s employees.
Pursuant to California Labor Code Section 1861, Contractor hereby submits to City the following:
I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
Contractor Initial: _______
4.2 Commercial General and Automobile Liability Insurance. a. General Requirements. Contractor, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general
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aggregate, and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability Insurance or an Automobile Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the Services to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from the Services contemplated under this Agreement, including the use of hired, owned, leased, and non-owned automobiles. b. Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 2, 8, and 9 including “any auto” and endorsement CA 0025 or equivalent). No endorsement shall be attached limiting the coverage.
c. Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
(i) The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
(ii) The policy must cover inter-insured suits and include a “Separation of Insureds” or “severability” clause which treats each insured separately. (iii) The insurance must be maintained for at least one (1) year following the completion of the Services or the expiration or termination of this Agreement. (iv) Any failure of Contractor to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General Requirements. Contractor, at its own expense, shall maintain professional liability insurance appropriate to Contractor’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to the Services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of the Services or the expiration or termination of this Agreement. During this additional five (5)-year period, Contractor shall annually and upon request of City submit written evidence of this continuous coverage.
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b. Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
(i) The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
(ii) If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Contractor must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion of the Services. Such continuation coverage may be provided by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the Services under this Agreement. City shall have the right to exercise, at Contractor’s sole cost and expense, any extended reporting provisions of the policy, if Contractor cancels or does not renew the coverage. (iii) A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 Pollution Liability Insurance. Contractor, at its own expense, shall maintain pollution liability insurance written on a per occurrence for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per pollution incident and ONE MILLION DOLLARS ($1,000,000.00) in the general aggregate. The policy shall apply to any incidents at or from any location on which Contractor performs the Services under this Agreement. The insurance must be maintained for at least one (1) year following the completion of Contractor’s services or the expiration or termination of this Agreement.
4.5 All Policies Requirements.
a. Verification of Coverage. Prior to beginning the Services under this Agreement, Contractor shall furnish City with certificates of insurance, additional insured endorsement or policy language granting additional insured status complete certified copies of all policies, including complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. The certificate of insurance must include the following reference: Black Gold Golf Club Walk-In Cooler Project. The name and address for additional insured endorsements, certificates of insurance and notice of cancellation is: City of Yorba Linda, 4845 Casa Loma Ave, Yorba Linda, CA 92886. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Contractor.
b. Notice of Reduction in or Cancellation of Coverage. Contractor shall provide written notice to City within ten (10) working days if: (1) any of the required
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insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self insured retention is increased. In the event any of said policies of insurance are cancelled, Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4 to the Contract Administrator. c. Additional Insured; Primary Insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Contractor, including the insured’s general supervision of Contractor; products and completed operations of Contractor, as applicable; premises owned, occupied, or used by Contractor; and automobiles owned, leased, or used by Contractor in the course of providing the Services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City as an additional insured must apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by City. Additional insured status shall continue for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to City and its officers, officials, employees, and volunteers, and that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss under the coverage. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against City, its officers, employees, agents, authorized volunteers, and their respective insurers. d. Deductibles and Self-Insured Retentions. Contractor shall obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the Services. During the term of this Agreement, only upon the prior express written authorization of the Contract Administrator, Contractor may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Contractor procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. e. Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
f. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
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4.6 Payment and Performance Bonds. Concurrently with execution of this Agreement, Contractor shall deliver to City a payment (labor and materials) bond and a performance bond, each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which secure the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of this Agreement and shall be null and void only if Contractor promptly and faithfully performs all terms and conditions of this Agreement. Payment and performance bonds shall be secured from a surety company rated Grade “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Contract Administrator due to unique circumstances, and shall be authorized to write such bonds in the State of California. Contractor shall pay all bond premiums, costs, and incidentals.
Pursuant to California Public Contract Code Section 22300, substitution of eligible equivalent securities for any moneys withheld to ensure performance under this Agreement may be permitted at the request and expense of Contractor. Without limiting the foregoing, Contractor understands that Civil Code Section 9550 requires a payment bond for all public works contracts involving an expenditure of more than Twenty-Five Thousand Dollars ($25,000).
4.7 Remedies. In addition to any other remedies at law or equity City may have if Contractor fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Contractor’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Contractor to stop work under this Agreement or withhold any payment that becomes due to Contractor hereunder, or both stop work and withhold any payment, until Contractor demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Contractor shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties
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of any kind (including costs and expenses incurred by City and reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Contractor fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Contractor, its officers, agents, employees, or subcontractors (or any entity or individual that Contractor shall bear the legal liability thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Contractor shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Contractor or by any individual or entity for which Contractor is legally liable, including but not limited to officers, agents, employees or subcontractors of Contractor. Contractor will promptly pay any judgment rendered against City, its officers, agents, or employees for any such Claims arising out of or in connection with the performance of or failure to perform such Services, operations or activities of Contractor hereunder.
5.3 Subcontractors. Contractor shall incorporate similar indemnity agreements with its subcontractors. Contractor shall be fully responsible to indemnify City, and failure of City to monitor compliance with these provisions shall not be a waiver hereof.
5.4 Limitation of Indemnification. The provisions of this Section 5 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5 shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity. In the event any applicable law contains a limitation on indemnification under this Agreement, such limitation shall supersede the provisions herein only to the extent required by said law.
SECTION 6. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of City. City shall have the right to control Contractor only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.4; however, otherwise City shall not have the right to control the means by which Contractor accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall not at any time or in any manner represent that it is or any of its officers, employees, or agents are in any manner officers, officials, employees, or agents of City. Contractor shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for
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the fees paid to Contractor as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. Contractor shall perform all Services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role.
City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Contractor and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Contractor shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Contractor acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Contractor shall require the same of all subcontractors.
7.3 Prevailing Wages. Contractor acknowledges and agrees that it shall be independently responsible for reviewing the applicable prevailing wage laws and regulations and effectuating compliance with such laws, including, but not limited to the prevailing wage and related requirements set forth in this Subsection 7.3. Contractor shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of California Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. a. Public Work. Contractor hereby expressly acknowledges and agrees that City has never previously affirmatively represented to Contractor, its employees or agents in writing or otherwise that the Services are not a “public work,” as defined in Section 1720 of the California Labor Code. It is agreed by the Parties that, in connection with the development, construction (as defined by applicable law) and
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operation of the Services, including, without limitation, any public work (as defined by applicable law), if any, Contractor shall bear all risks of payment or non-payment of state and/or federal prevailing wages and/or the implementation of California Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, and/or any other provision of law. To the extent applicable, City will enforce all penalties required by law for Contractor’s failure to pay prevailing wages. b. California Labor Code. The Contractor’s attention is directed to Division 2, Part 7, Chapter 1 of the California Labor Code and especially to Article 2 (Wages); and Article 3 (Working Hours), thereof.
(i) In accordance with Sections 1773 and 1773.2 of the California Labor Code, City has found and determined the general prevailing rates of wages in the locality in which the public work is to be performed are those determined by the Director of Industrial Relations and available at https://www.dir.ca.gov/OPRL/2022- 1/PWD/Southern.html. Copies of the prevailing rates of wages are maintained with City’s principal office and are available to any interested party on request. Contractor shall post a copy of the prevailing rate of per diem wages at each job site. (ii) Contractor is aware of and will comply with the provisions of California Labor Code Section 1776, including the keeping of payroll records and furnishing certified copies thereof in accordance with said Section. Pursuant to California Labor Code Section 1771.4, Contractor must submit certified payroll records to the Labor Commissioner using the Department of Industrial Relations’ electronic certified payroll reporting (eCPR) system.
(iii) Pursuant to California Labor Code Section 1810, it is stipulated hereby that eight (8) hours labor constitutes a legal day’s work hereunder. (iv) Pursuant to California Labor Code Section 1815, work performed by employees of contractors in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than 1 ½ times the basic rate of pay.
(v) Pursuant to California Labor Code Section 1813, it is stipulated hereby that Contractor shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker employed in the execution of this Agreement by Contractor or by any subcontractor hereunder for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one (1) calendar week in violation of the provisions of Article 3 (commencing with Section 1810), Chapter 1, Part 7, Division 2 of the California Labor Code. (vi) Contractor is aware of and will comply with the provisions of California Labor Code Sections 1777.5 and 1777.6 with respect to the employment of
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apprentices. Pursuant to Section 1777.5 it is hereby stipulated that Contractor will be responsible for obtaining compliance therewith on the part of any and all sub-consultants or subcontractors employed by Contractor in connection with this Agreement. (vii) Pursuant to California Labor Code Section 1775, it is hereby stipulated that Contractor shall, as a penalty to City, forfeit not more than two-hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for the Services by Contractor or any sub-consultant or subcontractor.
c. Bidding Eligibility. Pursuant to California Labor Code Section 1771.1, no contractor or subcontractor (or consultant or subconsultant) may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations. Pursuant to California Public Contract Code Section 6109, Contractor may not perform any Services hereunder with a subcontractor who is ineligible to perform the Services pursuant to Section 1777.1 or 1777.7 of the California Labor Code.
d. DIR Monitoring. Pursuant to California Labor Code Section 1771.4, Contractor is hereby notified that this project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
e. Indemnification Related to Prevailing Wages. Section 5, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Contractor or any party performing the Services of any applicable local, state, and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of California Labor Code Sections 1726 and 1781, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Contractor or any party performing the Services to provide any required disclosure or identification as required by California Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
7.4 Licenses and Permits, Fees, and Assessments. Contractor represents, warrants, and covenants to City that Contractor and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, and perform the Services. Contractor represents, warrants, and covenants to City that Contractor and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services.
In addition to the foregoing, Contractor and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Contractor shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties
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and interest, which may be imposed by law and arise from or are necessary for Contractor’s performance of the Services, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder.
7.5 Conflicts of Interest. Contractor represents, warrants, and covenants that Contractor presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Contractor’s obligations and responsibilities under this Agreement. Contractor further agrees that while this Agreement is in effect, Contractor shall not acquire or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Contractor’s obligations and responsibilities under this Agreement.
7.6 Unfair Business Practices Claims. In entering into this Agreement, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials related to this Agreement. This assignment shall be made and become effective at the time City renders final payment to Contractor without further acknowledgment of the Parties.
7.7 Annual Appropriation of Funding. In accord with Article 16 Section 18 of the California Constitution, payment of compensation under this Agreement is contingent upon annual appropriation of funds by City for that purpose. Contractor acknowledges and agrees that to the extent that the Services extend beyond one (1) fiscal year, payment for such Services is expressly conditioned on City’s annual appropriation of funds for such Services for each year. If no funds are appropriated then this Agreement shall be terminated. City pledges and agrees to process such appropriation requests annually and in good faith. Nothing in this Subsection shall be construed to limit the right of either Party to terminate this Agreement as provided herein.
7.8 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, Contractor and its sureties shall be liable for and shall pay to City the sum of FIVE HUNDRED DOLLARS ($500.00) as liquidated damages for each working day of delay in the performance of any of the Services. City may withhold from any monies payable on account of the Services performed by Contractor any accrued liquidated damages.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may terminate this Agreement at any time and without cause upon thirty (30) days’ written notification to Contractor. City may also terminate this Agreement pursuant to Subsection 8.8.
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8.2 Termination by Contractor. Contractor may terminate this Agreement upon sixty (60) days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Contractor shall be entitled to compensation for the Services satisfactorily performed up to the date of termination; City, however, may condition payment of such compensation upon Contractor delivering to City any or all materials provided to Contractor or prepared by or for Contractor or City in connection with this Agreement. Upon receipt of any notice of termination, Contractor shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Administrator.
8.4 Administrative Change Orders. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Administrator to Contractor, incorporating therein any adjustment in (i) the total compensation, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of Contractor. Any increase in compensation of up to five percent (5%) of the total compensation or TWENTY-FIVE THOUSAND DOLLARS ($25,000), whichever is less; or in the time to perform of up to one hundred eighty (180) days may be approved in writing by the Contract Administrator. Contractor understands and agrees that, if City grants an extension in time without additional work, City shall have no obligation to provide Contractor with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Contractor for any otherwise reimbursable expenses incurred during the extension period. All other extensions or modifications to this Agreement shall require a written amendment pursuant to Subsection 8.5.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. The Contract Administrator shall have the authority to execute amendments to this Agreement which do not materially change the terms hereof, in the Contract Administrator’s discretion, to the extent permitted by applicable federal, state, and local law. The Contract Administrator may refer any proposed amendment to the City Council for review and approval.
8.6 Assignment and Subcontracting. City and Contractor recognize and agree that this Agreement contemplates personal performance by Contractor and is based upon a determination of Contractor’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Contractor.
Contractor may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Contractor shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the Scope of Services, without prior written approval of the Contract
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Administrator. In the event of any unapproved assignment, including in connection with any bankruptcy proceeding, this Agreement shall be void. No approved assignment shall release Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Contractor shall survive the expiration or termination of this Agreement.
8.8 Disputes, Default. In the event that Contractor is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Contractor for any of the Services performed after the date of default. Instead, City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, in the sole discretion of the Contract Administrator. During the period of time that Contractor is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, City's remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Contractor pursuant to this Agreement;
c. Retain a different contractor to complete the Services; and/or d. Charge Contractor the difference between the cost to complete the Services that is unfinished at the time of breach and the amount that City would have paid Contractor pursuant to Section 2 if Contractor had completed the Services.
Any failure on the part of City to give notice of Contractor’s default shall not be deemed to result in a waiver of City’s legal rights or any rights arising out of any provision of this Agreement.
8.9 Claims by Contractor. Claims, as that term is defined in California Public Contract Code Section 9204, by Contractor and, where applicable, any subcontractor, in connection with a public works project shall by subject to the mediation procedure in California Public Contract Code Section 9204.
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SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Documents and Data. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents, and other materials plans, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium (the “Documents and Materials”) prepared or caused to be prepared by Contractor, its employees, subcontractors, and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Administrator or upon the expiration or termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Documents and Materials hereunder. Any use, reuse or assignment of such completed Documents and Materials for other projects and/or use of uncompleted documents without specific written authorization by Contractor will be at City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, revise, or assignment. Contractor may retain copies of such Documents and Materials for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any Documents and Materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, rights of reproduction, and other intellectual property embodied in the Documents and Materials. Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for the Documents and Materials the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all of the Documents and Materials. Contractor makes no such representation and warranty in regard to the Documents and Materials which were prepared by design professionals other than Contractor or provided to Contractor by City. City shall not be limited in any way in its use of the Documents and Materials at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Records. Contractor shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports (including but not limited to payroll reports), studies, or other documents relating to the disbursements charged to City and the Services performed hereunder (the “Books and Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Administrator to evaluate the performance of such Services. Any and all such Books and Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Administrator
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shall have full and free access to such Books and Records at all times during normal business hours of City, including the right to inspect, copy, audit, and make records and transcripts from such Books and Records. Such Books and Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Books and Records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the Books and Records may be given to City, and access shall be provided by Contractor’s successor in interest. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
9.4 Reports. Contractor shall periodically prepare and submit to the Contract Administrator such reports concerning the performance of the Services required by this Agreement as the Contract Administrator shall require. Contractor hereby acknowledges that City is greatly concerned about the cost of the Services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Administrator of said fact, circumstance, technique, or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
9.5 Confidentiality. City and Contractor agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law. Contractor, its officers, employees, agents, or subcontractors, shall not, without prior written authorization from the Contract Administrator or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement. If Contractor, or any officer, employee, agent, or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any Claims caused by or incurred as a result of Contractor’s conduct.
Contractor shall promptly notify City should Contractor, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing, or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any
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such response does not imply or mean the right by City to control, direct, or rewrite said response. Response to a subpoena or court order shall not be considered a voluntary disclosure so long as Contractor gives City notice of such court order or subpoena as provided herein. Contractor understands and agrees that it may be required to provide documents to the City to be produced in response to a Public Records Act request.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to any other relief to which that Party may be entitled; provided, however, that the attorneys’ fees awarded pursuant to this Subsection shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the litigation. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.7 Contractor Principals and Representatives. The following principals of Contractor (“Principals”) are hereby designated as being the principals and
2905/009410-1001
19412635.3 a03/10/26
Contract Services Agreement | 25
representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the Principals were a substantial inducement for City to enter into this Agreement. Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City.
10.8 City Contract Administration. This Agreement shall be administered by a City employee, Brad Skeene, Parks and Facilities Superintendent (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. It shall be Contractor’s responsibility to assure that the Contract Administrator is kept informed of the progress of the performance of the Services and Contractor shall refer any decisions which must be made by City to the Contract Administrator. Unless otherwise provided by applicable law, the Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement.
Unless otherwise provided in this Agreement, Contractor shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Contractor shall be sent to:
«Contractor»
Attn: «Contractor_Contact»
«Address»
«City», «State» «Zip_Code»
Any written notice to City shall be sent to the Contract Administrator at:
2905/009410-1001
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Contract Services Agreement | 26
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
Attn: Brad Skeene, Parks and Facilities Superintendent
with a copy to:
City Clerk
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
Any notice, demand, request, document, consent, approval, or communication either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
10.10 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
10.11 Integration, Interpretation. This Agreement, including Exhibits A and B, represents the entire and integrated agreement between City and Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
10.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.13 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other agreement to which said Party is bound.
10.14 Nondiscrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the
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Contract Services Agreement | 27
performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.15 No Third Party Beneficiaries. There are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.16 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
10.17 No Undue Influence. Contractor declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Contractor, or from any officer, employee, or agent of Contractor, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.18 No Benefit to Arise to City Employees. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in any agreement or subagreement, or the proceeds thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
2905/009410-1001
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Contract Services Agreement | 28
IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF YORBA LINDA
Carlos Rodriguez, Mayor
Attest:
Marcia Brown, City Clerk
Approved as to Form:
Todd Litfin, City Attorney
CONTRACTOR
By:
Name:
Title:
By:
Name:
Title:
[Note: 2 officer’s signatures required if
Contractor is a corporation, unless
provided with a certificate of secretary inlieu]
2905/009410-1001
19412635.3 a03/10/26
EXHIBIT A
EXHIBIT A
SCOPE OF SERVICES
Services shall include Black Gold Golf Club Walk-In Cooler Project services, including labor, materials, services and equipment is the total amount of all lump sum items and of all unit price sums, determined by multiplying the unit price for each item times the actual quantity of each such item, in the amount not to exceed «CONTRACT_AMOUNT_SPELLED_OUT» («Contract_Amount») as further detailed in the attached pages (if any). If the Services include Services pursuant to a request for proposals or bid, the Services shall include the work contemplated by the entire “Bid Package” or “Request for Proposals” for the Services, including all plans, addenda, documentation, and specifications attached thereto. A copy of the Bid Package and/or Request for Proposals, as applicable shall be retained with a copy of this Agreement.
Contractor shall keep a copy of the same for at least three (3) years following termination of this Agreement.
[ATTACH BID PACKAGE / SCOPE OF WORK]
(PAGE 1 OF 2)
CITY OF YORBA LINDA
FAITHFUL PERFORMANCE BOND
FOR
BLACK GOLD GOLF CLUB WALK-IN COOLER PROJECT
KNOW ALL MEN BY THESE PRESENTS that, Insert Contractors Name, as CONTRACTOR, and,___________________________________________________as SURETY, are held and firmly bound unto the City of Yorba Linda, as AGENCY, in the penal sum of Insert Written Dollar amount Dollars ($.00), which is one hundred (100%) of the total contract amount for the above stated project, for the payment of which sums, CONTRACTOR and SURETY agree to be bound, jointly and severally, firmly by these presents.
THE CONDITIONS OF THIS OBLIGATION ARE SUCH that, whereas CONTRACTOR has been awarded and is about to enter into the annexed Contract Agreement with AGENCY for the above stated project, if CONTRACTOR faithfully performs and fulfills all obligations under the contract documents in the manner and time specified therein, then this obligation shall be null and void, otherwise it shall remain in full force and effect in favor of AGENCY; provided that any alterations in the obligations or time for completion made pursuant to the terms of the contract documents shall not in any way release either CONTRACTOR or SURETY, and notice of such alterations is hereby waived by SURETY.
WITNESS our hands this ________ day of _____________, 2026.
CONTRACTOR (CORPORATION-TYPE)
(SEAL) By
President
By
Secretary/Treasurer
FAITHFUL PERFORMANCE BOND
(PAGE 2 OF 2)
______________________________
SURETY'S NAME-TYPE
______________________________
MAILING ADDRESS (SURETY)
BY:
Name
(SEAL)
Title
NOTE: SIGNATURES OF CORPORATE OFFICIALS AND SURETY MUST BE NOTARIZED, ATTACH JURAT.
BOND APPROVED AS TO FORM:
CITY ATTORNEY - CITY OF YORBA LINDA
(PAGE 1 OF 2)
CITY OF YORBA LINDA
MATERIAL AND LABOR BOND
FOR
BLACK GOLD GOLF CLUB WALK-IN COOLER PROJECT
KNOW ALL MEN BY THESE PRESENTS that, Insert Contractors Name, as CONTRACTOR, and,___________________________________________________as SURETY, are held and firmly bound unto the City of Yorba Linda, as AGENCY, in the penal sum of Insert Written Dollar amount Dollars ($.00), which is one hundred (100%) of the total contract amount for the above stated project, for the payment of which sums, CONTRACTOR and SURETY agree to be bound, jointly and severally, firmly by these presents.
THE CONDITIONS OF THIS OBLIGATION ARE SUCH that, whereas CONTRACTOR has been awarded and is about to enter into the annexed Contract Agreement with AGENCY for the above stated project, if CONTRACTOR or any subcontractor fails to pay for any labor or material of any kind used in the performance of the work to be done under said contract, or fails to submit amounts due under the State Unemployment Insurance Act with respect to said labor, SURETY will pay for the same in an amount not exceeding the sum set forth above, which amount shall insure to be the benefit of all persons entitled to file claims under the State Code of Civil Procedures; provided that any alterations in the work to be done, materials to be furnished, or time for completion made pursuant to the terms of the contract documents shall not in any way release either CONTRACTOR or SURETY, and notice of said alterations is hereby waived by SURETY.
WITNESS our hands this ________ day of _____________, 2026.
CONTRACTOR (CORPORATION-TYPE)
By___________________________
President
(SEAL) By __________________________
Secretary/Treasurer
MATERIAL AND LABOR BOND
(PAGE 2 OF 2)
SURETY'S NAME-TYPE
MAILING ADDRESS (SURETY)
BY:
Name
(SEAL)
Title
NOTE: SIGNATURES OF CORPORATE OFFICIALS AND SURETY MUST BE NOTARIZED, ATTACH JURAT.
BOND APPROVED AS TO FORM:
CITY ATTORNEY - CITY OF YORBA LINDA
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705
Black Gold Golf Club
Walk-in Refrigeration
Structural Calculations
LOCATION
1 Black Gold Drive
Yorba Linda, California
CLIENT
KPS Global
CPQ-140631
Date Completed January 26, 2026
Project Number 26-019
Engineer of Record David M. Fulton P.E.
Completed by Ashish Shrestha
Contact [email protected]
(208) 874-3996
01/27/2026
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 2 / 40
TABLE OF CONTENTS
1- PROJECT INFORMATION AND DESIGN CRITERIA ................................................................................................3 2- UNIT 1 - STRUCTURAL CALCULATIONS ...............................................................................................................7
2.1- UNIT 1 – STRUCTURE INFORMATION ..................................................................................................................7
2.2- UNIT 1 – LOAD GENERATION...............................................................................................................................8
2.3- UNIT 1 – VERTICAL ANALYSIS...............................................................................................................................9
2.4- UNIT 1 – LATERAL ANALYSIS ..............................................................................................................................11
2.5- UNIT 1 – CONNECTION CAPACITY......................................................................................................................15 3- ANCHORAGE PRINTOUTS – TYPICAL ................................................................................................................ 18
3.1- HOLD DOWN CAPACITY.....................................................................................................................................18
3.2- HD-1, SIMPSON TITEN HD..................................................................................................................................19
3.3- CONTINUOUS ANGLE ANCHORAGE - TYPICAL ...................................................................................................24 4- APPENDIX: MATERIAL SPECIFICATIONS............................................................................................................ 28
4.1- KPS GLOBAL- ICC ESR-5591................................................................................................................................28
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 3 / 40 1- PROJECT INFORMATION AND DESIGN CRITERIA
PLAN NORTH ENGINEERS Page 619 of 1224 | 1401 ROBERT ST., BOISE ID 83705 4/ 40
PLAN NORTH ENGINEERS Page 620 of 1224 | 1401 ROBERT ST., BOISE ID 83705 5/ 40
PLAN NORTH ENGINEERS Page 621 of 1224 | 1401 ROBERT ST., BOISE ID 83705 6/ 40
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 7 / 40 2- UNIT 1 - STRUCTURAL CALCULATIONS
2.1- UNIT 1 – STRUCTURE INFORMATION
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 8 / 40
2.2- UNIT 1 – LOAD GENERATION
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 9 / 40
2.3- UNIT 1 – VERTICAL ANALYSIS
PLAN NORTH ENGINEERS Page 625 of 1224 | 1401 ROBERT ST., BOISE ID 83705 10 / 40
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 11 / 40
2.4- UNIT 1 – LATERAL ANALYSIS
PLAN NORTH ENGINEERS Page 627 of 1224 | 1401 ROBERT ST., BOISE ID 83705 12 / 40
PLAN NORTH ENGINEERS Page 628 of 1224 | 1401 ROBERT ST., BOISE ID 83705 13 / 40
PLAN NORTH ENGINEERS Page 629 of 1224 | 1401 ROBERT ST., BOISE ID 83705 14 / 40
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 15 / 40
2.5- UNIT 1 – CONNECTION CAPACITY
PLAN NORTH ENGINEERS Page 631 of 1224 | 1401 ROBERT ST., BOISE ID 83705 16 / 40
PLAN NORTH ENGINEERS Page 632 of 1224 | 1401 ROBERT ST., BOISE ID 83705 17 / 40
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 18 / 40 3- ANCHORAGE PRINTOUTS – TYPICAL
3.1- HOLD DOWN CAPACITY
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 19 / 40
3.2- HD-1, SIMPSON TITEN HD
PLAN NORTH ENGINEERS Page 635 of 1224 | 1401 ROBERT ST., BOISE ID 83705 20 / 40
PLAN NORTH ENGINEERS Page 636 of 1224 | 1401 ROBERT ST., BOISE ID 83705 21 / 40
PLAN NORTH ENGINEERS Page 637 of 1224 | 1401 ROBERT ST., BOISE ID 83705 22 / 40
PLAN NORTH ENGINEERS Page 638 of 1224 | 1401 ROBERT ST., BOISE ID 83705 23 / 40
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 24 / 40
3.3- CONTINUOUS ANGLE ANCHORAGE - TYPICAL
PLAN NORTH ENGINEERS Page 640 of 1224 | 1401 ROBERT ST., BOISE ID 83705 25 / 40
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 26 / 40 1 7/8”1
PLAN NORTH ENGINEERS Page 642 of 1224 | 1401 ROBERT ST., BOISE ID 83705 27 / 40
PLAN NORTH ENGINEERS | 1401 ROBERT ST., BOISE ID 83705 28 / 40 4- APPENDIX: MATERIAL SPECIFICATIONS
4.1- KPS GLOBAL- ICC ESR-5591
PLAN NORTH ENGINEERS Page 644 of 1224 | 1401 ROBERT ST., BOISE ID 83705 29 / 40
PLAN NORTH ENGINEERS Page 645 of 1224 | 1401 ROBERT ST., BOISE ID 83705 30 / 40
PLAN NORTH ENGINEERS Page 646 of 1224 | 1401 ROBERT ST., BOISE ID 83705 31 / 40
PLAN NORTH ENGINEERS Page 647 of 1224 | 1401 ROBERT ST., BOISE ID 83705 32 / 40
PLAN NORTH ENGINEERS Page 648 of 1224 | 1401 ROBERT ST., BOISE ID 83705 33 / 40
PLAN NORTH ENGINEERS Page 649 of 1224 | 1401 ROBERT ST., BOISE ID 83705 34 / 40
PLAN NORTH ENGINEERS Page 650 of 1224 | 1401 ROBERT ST., BOISE ID 83705 35 / 40
PLAN NORTH ENGINEERS Page 651 of 1224 | 1401 ROBERT ST., BOISE ID 83705 36 / 40
PLAN NORTH ENGINEERS Page 652 of 1224 | 1401 ROBERT ST., BOISE ID 83705 37 / 40
PLAN NORTH ENGINEERS Page 653 of 1224 | 1401 ROBERT ST., BOISE ID 83705 38 / 40
PLAN NORTH ENGINEERS Page 654 of 1224 | 1401 ROBERT ST., BOISE ID 83705 39 / 40
PLAN NORTH ENGINEERS Page 655 of 1224 | 1401 ROBERT ST., BOISE ID 83705 40 / 40
CPQ-140631
CLR - Box Load Calculation
General Requirements
Room Temperature: 35 °F Ambient Temperature: 95 °F Design Run-time: 16 Hrs Required Capacity: 16,449 BTUH Area Load
Section Material Thickness X - Factor Surface Temp Dim. 1 Dim. 2 Load Wall 1 Polyurethane 3.5 in 0.1 90 °F 16.4 ft 8 ft 6,934.4 BTU Wall 2 Polyurethane 3.5 in 0.1 90 °F 15 ft 8 ft 6,336 BTU Wall 3 Polyurethane 3.5 in 0.1 90 °F 16.4 ft 8 ft 6,934.4 BTU Wall 4 Polyurethane 3.5 in 0.1 90 °F 15 ft 8 ft 6,336 BTU Ceiling Polyurethane 4 in 0.1 100 °F 16.4 ft 15 ft 13,445.3 BTU Floor Concrete 6 in 1.3 65 °F 16.4 ft 15 ft 36,937.6 BTU Total Area Load: 76,923.7 BTU
Product Load - Auto Usage Selected
Total Product Load: 37,824.1 BTU
Air Change Load
Dry Bulb: 90 °F Wet Bulb: 75 °F
Door Type 1: Man Number of Door Type 1: 1 Door Usage: Average Door Type 1: Curtains: None Door Type 1 Curtain Efficiency: 0% Total Door Type 1 Load: 16,800 BTU Total Air Change Load: 104,326.1 BTU
Miscellaneous Load
People Load: 0 BTU Lighting Load: 20,182.7 BTU Motor Load: 0 BTU Other Load: 0 BTU Total Misc. Load: 20,182.7 BTU
Load Calculation Summary
Total Design Load: 239,256.5 BTU Safety Factor: 10% Total Required Load: 263,182.2 BTU Quotes are valid for 30 Days. Due to ongoing product development, RapidSpec and its export documentation is subject to change without notice. In no event shall HTPG be liable for special or consequential damages in connection with the use or output of RapidSpec.
CPQ-140631
CLR - System Design Summary
General Requirements
Room Temperature: 35 °F Ambient Temperature: 95 °F Design Run-time: 16 Hrs Required Capacity: 16449 BTUH Design TD: 10 °F Refrigerant: R-454C Altitude: 0 FT
Selected Equipment
Line Item Quantity Type Tag Description
1.0 1 System CLR R-454C - Refrigeration Equipment Match 1
1.1 1 Condensing Unit CDU-1 RFON250E4AEA
1.2 1 Unit Cooler UC-1 RAL6A159ADA
System Balance
Balanced Capacity: 16,280.9 BTUH Evap. T.D.: 10.2 °F Line Loss: 2 °F Suction Temp: 22.8 °F Calc. Run-Time: 16.2 Hrs Quotes are valid for 30 Days. Due to ongoing product development, RapidSpec and its export documentation is subject to change without notice. In no event shall HTPG be liable for special or consequential damages in connection with the use or output of RapidSpec.
CPQ-140631
CLR - CDU-1 - Product Information
General Data
Model Line: NEXT-GEN MINI-CON Model Number: RFON250E4AEA Flooded: Yes Refrigerant: R-454C Voltage: 208-230/3/60 Compressor Type: SCROLL Performance Data
Ambient Temp: 95 °F Suction Temp: 23 °F Capacity: 15,700 BTUH Electrical Data
Compressor RLA: 12.3 Compressor LRA: 73 Total Condenser Fan FLA: 1.2 MCA: 17.6 MOPD: 25
Physical Data
Number of Compressors: 1 Compressor Model: YS16KAE Compressor HP: 2 1/2 Number of Condenser Fans: 2 Approx. Ship Weight: 230 lbs Sound Data: 72 dBA Liquid Line: 1/2 in. Suction Line: 7/8 in.
Pump Down Capacity (%): 90 Pump Down Capacity: 15.2 lbs Option Data
Mounted Option NO STANDARD AIR DEFROST TIMER
Mounted Option EC MOTOR(S)
Mounted Option LIQUID LINE WITH COMPONENTS: SEALED FILTER & SIGHT GLASS Mounted Option STANDARD RECEIVER
Mounted Option FIXED HIGH/ADJUSTABLE LOW PRESSURE CONTROL Warranty Option EXTENDED COMPRESSOR WARRANTY (4 YEAR) - SCROLL - A2L Compliance Data
AWEF: 7.60
Notes
Quotes are valid for 30 Days. Due to ongoing product development, RapidSpec and its export documentation is subject to change without notice. In no event shall HTPG be liable for special or consequential damages in connection with the use or output of RapidSpec. MCA/MOPD and Defrost Kit selection will be confirmed at time of purchase. Submittal data shown represents design conditions.
Dimensional Drawing
Standard Features
• All-weather Galvanized steel painted housing
• Generously sized high efficiency condenser,
enhanced copper tubes/aluminum fins
• Integral Liquid Subcooling Circuit provides subcooled liquid to the expansion device
• Crankcase heater
• Large electrical panel with hinged/removable door
• Color coded point-to-point wiring
• Quick access to shut off valves from exterior
• UL/cUL certified for use with multiple refrigerants
• UL/cUL listed for outdoor use
• Flooded models include flooded head pressure
control
• Non flooded models include mild ambient fan cycle
control
Certifications
28-1/4
21-1/4
AIR
24-3/16
4-7/8
3-3/16
LIQUID
OUT
SUCTION
3/8” MOUNTING HOLES (4)
39-1/8
39-7/8
38-1/4
CONTROL
PANEL
7/8” KO (2)
FOR
ELECTRICAL
CONNECTIONS
CPQ-140631
CLR - UC-1 - Product Information
General Data
Model Line: NEXT-GEN ALL-TEMP Model Number: RAL6A159ADA Motors: DUAL SPEED EC MOTOR Unit Voltage: 115/1/60 Defrost Type: AIR DEFROST Refrigerant: R-454C Fins Per Inch: 6 Number of Fans: 2
Performance Data
Suction Temp: 25 °F T.D: 10.2 °F Capacity: 16,280.9 BTUH CFM: 1550 Electrical Data
Motor Voltage: 115/1/60 Total Unit Fan Motor Amps: 1.6
Heater Voltage: - Heater Amps: 0 Heater Watts: 0
MCA: 15 MOPD: 20
Physical Data
Liquid Line: 3/8 in. Suction Line: 7/8 in. Approx. Ship Weight: 62 lbs Option Data
Mounted Option EcoNet Control Package
Mounted Option A2L Leak Detector
Loose Option SSOV Isolation Valve - Shipped-Loose
Loose Option Check Valve - Shipped-Loose
Compliance Data
AWEF: 9.00
Notes
Quotes are valid for 30 Days. Due to ongoing product development, RapidSpec and its export documentation is subject to change without notice. In no event shall HTPG be liable for special or consequential damages in connection with the use or output of RapidSpec. Submittal data shown represents design conditions.
Dimensional Drawing
Standard Features
Certifications
43-5/8
16-3/4
14-1/2
SUCTION
(BACKSIDE) 3/4 - 14 NPT DRAIN
33-1/4 5
7/8 ELECTRICAL
KNOCKOUTS
(BACKSIDE)
18-1/8
15-1/2
2 2
11-1/2
5 AIR
• Embossed aluminum housing
• Enhanced copper tube and aluminum fin coil
construction
• Sweat connections
• Thermal overload protection
• High efficiency fan guard design and deep draw
venturi
• Heavy-duty fans are balanced for vibration-free
operation
• Fan sections are baffled to prevent short cycling of air • Slide out end panels
• Removable drain pan
• Mounts flush to the ceiling
• Top pan includes 1/2” wide slotted mounting points
• UL/cUL certified for use with multiple refrigerants
• NSF approved for use in food preparation areas
CPQ-140631
FZR - Box Load Calculation
General Requirements
Room Temperature: -10 °F Ambient Temperature: 95 °F Design Run-time: 18 Hrs Required Capacity: 9,245 BTUH Area Load
Section Material Thickness X - Factor Surface Temp Dim. 1 Dim. 2 Load Wall 1 Polyurethane 4 in 0.1 90 °F 8.7 ft 8 ft 5,826.2 BTU Wall 2 Polyurethane 4 in 0.1 90 °F 15 ft 8 ft 10,080 BTU Wall 3 Polyurethane 4 in 0.1 90 °F 8.7 ft 8 ft 5,826.2 BTU Wall 4 Polyurethane 4 in 0.1 90 °F 15 ft 8 ft 10,080 BTU Ceiling Polyurethane 4 in 0.1 100 °F 8.7 ft 15 ft 12,016.6 BTU Floor Polyurethane 4.3 in 0.1 65 °F 8.7 ft 15 ft 7,711.2 BTU Total Area Load: 51,540.3 BTU
Product Load - Auto Usage Selected
Total Product Load: 19,975.7 BTU
Air Change Load
Dry Bulb: 60 °F Wet Bulb: 54 °F
Door Type 1: Man Number of Door Type 1: 1 Door Usage: Average Door Type 1: Curtains: None Door Type 1 Curtain Efficiency: 0% Total Door Type 1 Load: 16,800 BTU Total Air Change Load: 69,112 BTU
Miscellaneous Load
People Load: 0 BTU Lighting Load: 10,658.9 BTU Motor Load: 0 BTU Other Load: 0 BTU Total Misc. Load: 10,658.9 BTU
Load Calculation Summary
Total Design Load: 151,286.9 BTU Safety Factor: 10% Total Required Load: 166,415.6 BTU Quotes are valid for 30 Days. Due to ongoing product development, RapidSpec and its export documentation is subject to change without notice. In no event shall HTPG be liable for special or consequential damages in connection with the use or output of RapidSpec.
CPQ-140631
FZR - System Design Summary
General Requirements
Room Temperature: -10 °F Ambient Temperature: 95 °F Design Run-time: 18 Hrs Required Capacity: 9245 BTUH Design TD: 10 °F Refrigerant: R-454C Altitude: 0 FT
Selected Equipment
Line Item Quantity Type Tag Description
2.0 1 System FZR R-454C - Refrigeration Equipment Match 2
2.1 1 Condensing Unit CDU-2 RFON350L4AEA
2.2 1 Unit Cooler UC-2 RAL6E110DDA
System Balance
Balanced Capacity: 9,787 BTUH Evap. T.D.: 8.9 °F Line Loss: 2 °F Suction Temp: -20.9 °F Calc. Run-Time: 17 Hrs Quotes are valid for 30 Days. Due to ongoing product development, RapidSpec and its export documentation is subject to change without notice. In no event shall HTPG be liable for special or consequential damages in connection with the use or output of RapidSpec.
CPQ-140631
FZR - CDU-2 - Product Information
General Data
Model Line: NEXT-GEN MINI-CON Model Number: RFON350L4AEA Flooded: Yes Refrigerant: R-454C Voltage: 208-230/3/60 Compressor Type: SCROLL Performance Data
Ambient Temp: 95 °F Suction Temp: -22 °F Capacity: 9,092 BTUH Electrical Data
Compressor RLA: 10.9 Compressor LRA: 88 Total Condenser Fan FLA: 1.2 MCA: 15.8 MOPD: 25
Physical Data
Number of Compressors: 1 Compressor Model: YF09KSE Compressor HP: 3 1/2 Number of Condenser Fans: 2 Approx. Ship Weight: 255 lbs Sound Data: 73 dBA Liquid Line: 3/8 in. Suction Line: 7/8 in.
Pump Down Capacity (%): 90 Pump Down Capacity: 15.2 lbs Option Data
Mounted Option NO STANDARD DEFROST KIT
Mounted Option EC MOTOR(S)
Mounted Option LIQUID LINE WITH COMPONENTS: SEALED FILTER & SIGHT GLASS Mounted Option STANDARD RECEIVER
Mounted Option FIXED HIGH/ADJUSTABLE LOW PRESSURE CONTROL Warranty Option EXTENDED COMPRESSOR WARRANTY (4 YEAR) - SCROLL - A2L Compliance Data
AWEF: 3.15
Notes
Quotes are valid for 30 Days. Due to ongoing product development, RapidSpec and its export documentation is subject to change without notice. In no event shall HTPG be liable for special or consequential damages in connection with the use or output of RapidSpec. MCA/MOPD and Defrost Kit selection will be confirmed at time of purchase. Submittal data shown represents design conditions.
Dimensional Drawing
Standard Features
• All-weather Galvanized steel painted housing
• Generously sized high efficiency condenser,
enhanced copper tubes/aluminum fins
• Integral Liquid Subcooling Circuit provides subcooled liquid to the expansion device
• Crankcase heater
• Large electrical panel with hinged/removable door
• Color coded point-to-point wiring
• Quick access to shut off valves from exterior
• UL/cUL certified for use with multiple refrigerants
• UL/cUL listed for outdoor use
• Flooded models include flooded head pressure
control
• Non flooded models include mild ambient fan cycle
control
Certifications
28-1/4
21-1/4
AIR
24-3/16
4-7/8
3-3/16
LIQUID
OUT
SUCTION
3/8” MOUNTING HOLES (4)
39-1/8
39-7/8
38-1/4
CONTROL
PANEL
7/8” KO (2)
FOR
ELECTRICAL
CONNECTIONS
CPQ-140631
FZR - UC-2 - Product Information
General Data
Model Line: NEXT-GEN ALL-TEMP Model Number: RAL6E110DDA Motors: DUAL SPEED EC MOTOR Unit Voltage: 208-230/1/60 Defrost Type: ELECTRIC DEFROST Refrigerant: R-454C Fins Per Inch: 6 Number of Fans: 2
Performance Data
Suction Temp: -20 °F T.D: 8.9 °F Capacity: 9,787 BTUH CFM: 1550 Electrical Data
Motor Voltage: 208-230/1/60 Total Unit Fan Motor Amps: 1 Heater Voltage: 208-230/1/60 Heater Amps: 9.8 Heater Watts: 2250 MCA: 15 MOPD: 20
Physical Data
Liquid Line: 3/8 in. Suction Line: 1 1/8 in. Approx. Ship Weight: 58 lbs Option Data
Mounted Option EcoNet Control Package
Mounted Option A2L Leak Detector
Loose Option SSOV Isolation Valve - Shipped-Loose
Loose Option Check Valve - Shipped-Loose
Compliance Data
AWEF: 4.06
Notes
Quotes are valid for 30 Days. Due to ongoing product development, RapidSpec and its export documentation is subject to change without notice. In no event shall HTPG be liable for special or consequential damages in connection with the use or output of RapidSpec. Submittal data shown represents design conditions.
Dimensional Drawing
Standard Features
Certifications
43-5/8
16-3/4
14-1/2
SUCTION
(BACKSIDE) 3/4 - 14 NPT DRAIN
33-1/4 5
7/8 ELECTRICAL
KNOCKOUTS
(BACKSIDE)
18-1/8
15-1/2
2 2
11-1/2
5 AIR
• Embossed aluminum housing
• Enhanced copper tube and aluminum fin coil
construction
• Sweat connections
• Thermal overload protection
• High efficiency fan guard design and deep draw
venturi
• Heavy-duty fans are balanced for vibration-free
operation
• Fan sections are baffled to prevent short cycling of air • Slide out end panels
• Removable drain pan
• Mounts flush to the ceiling
• Top pan includes 1/2” wide slotted mounting points
• UL/cUL certified for use with multiple refrigerants
• NSF approved for use in food preparation areas
Contract
Services
Agreement
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Contract Services Agreement | 1
CONTRACT SERVICES AGREEMENT
BLACK GOLD GOLF CLUB
WALK-IN COOLER PROJECT
THIS CONTRACT SERVICES AGREEMENT (“Agreement”) is made and effective this 5th day of May 2026 by and between the CITY OF YORBA LINDA, a California municipal corporation, (“City”) and PROCON DEVELOPMENT, INC., a Corporation (“Contractor”).
City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties”.
City sought, by issuance of a Request for Proposals or Invitation for Bids, for the performance of the services defined and described particularly in this Agreement.
Contractor, following submission of a proposal or bid for the performance of the services defined and described particularly in this Agreement, was selected by City to perform those services. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in this Agreement and desire that the terms of that performance be as particularly defined and described herein.
SECTION 1. SERVICES.
1.1 Scope of Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to City the services described in the Scope of Services, attached hereto as Exhibit A, “Scope of Services” and incorporated herein by this reference (the “Services”). Contractor will perform subsequent task orders as requested by the Contract Administrator (as defined below), in accordance with the Scope of Services. The Scope of Services incorporates Contractor’s scope of work or bid for the Services. In the event of a conflict in or inconsistency between the terms of this Agreement and Exhibit A, this Agreement shall prevail.
1.2 Term of Services. The term of this Agreement shall begin on May 5, 2026.
Unless earlier terminated in accordance with Section 8 of this Agreement, this Agreement shall continue in full force and effect until final written approval and acceptance of the work performed under this Agreement by the Contract Administrator. The time provided to Contractor to complete the Services required by this Agreement shall not affect City’s right to terminate this Agreement, as provided for in Section 8.
1.3 Standard of Performance.
a. Quality of Work. As a material inducement to City entering into this Agreement, Contractor represents and warrants that it has the qualifications, experience, and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent, and professional manner, and is experienced in performing the Services contemplated herein. Contractor shall at all times faithfully, competently, and to the best of its ability, experience, and talent, perform all Services described herein.
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Contractor covenants that it shall follow the highest professional standards in performing the Services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase “highest professional standards” shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances, and to the sole satisfaction of the Contract Administrator.
b. Care of Work. Contractor shall adopt reasonable methods during the term of this Agreement to furnish continuous protection to the Services, and the equipment, materials, papers, documents, plans, studies, and/or other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City’s own negligence.
c. Safety. Contractor shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out the Services, Contractor shall at all times be in compliance with all applicable local, state, and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions as applicable shall include, but shall not be limited to:
(A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. d. Warranty. Contractor warrants all work under this Agreement (which for purposes of this Subsection 1.3 shall be deemed to include unauthorized work which has not been removed and any non-conforming materials incorporated into the work) to be of good quality and free from any defective or faulty material and workmanship.
Contractor agrees that for a period of one (1) year (or the period of time specified elsewhere in this Agreement or in any guarantee or warranty provided by any manufacturer or supplier of equipment or materials incorporated into the work, whichever is later) after the date of final acceptance, Contractor shall within ten (10) days after being notified in writing by City of any defect in the work or non-conformance of the work to this Agreement, commence and prosecute with due diligence all work necessary to fulfill the terms of the warranty at Contractor’s sole cost and expense. Contractor shall act sooner as requested by City in response to an emergency. In addition, Contractor shall, at its sole cost and expense, repair and replace any portions of the work (or work of other contractors) damaged by Contractor’s defective work or which becomes damaged in the course of repairing or replacing defective work. For any work so corrected, Contractor’s obligation hereunder to correct defective work shall be reinstated for an additional one (1) year period, commencing with the date of acceptance of such corrected work. Contractor shall perform such tests as City may require to verify that any corrective actions, including,
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without limitation, redesign, repairs, and replacements comply with the requirements of this Agreement. All costs associated with such corrective actions and testing, including the removal, replacement, and reinstitution of equipment and materials necessary to gain access, shall be the sole responsibility of Contractor. All warranties and guarantees of subcontractors, suppliers, and manufacturers with respect to any portion of the work, whether express or implied, are deemed to be obtained by Contractor for the benefit of City, regardless of whether or not such warranties and guarantees have been transferred or assigned to City by separate agreement and Contractor agrees to enforce such warranties and guarantees, if necessary, on behalf of City. In the event that Contractor fails to perform its obligations under this Section, or under any other warranty or guaranty under this Agreement, to the reasonable satisfaction of City, City shall have the right to correct and replace any defective or non-conforming work and any work damaged by such work or the replacement or correction thereof at Contractor’s sole expense.
Contractor shall be obligated to fully reimburse City for any expenses incurred hereunder upon demand.
e. Skilled and Trained Workforce. Contractor, for itself and its subcontractors at every tier, hereby provides an enforceable commitment to comply with California Public Contract Code section 2600 et seq., which requires use of a skilled and trained workforce to perform all work on the agreements that fall within an apprenticeable occupation in the building and construction trades.
f. Inspection and Final Acceptance. The Services shall be performed to the satisfaction of City. City may inspect and accept or reject any of Contractor’s work under this Agreement, during performance and/or when completed. City shall reject or finally accept Contractor’s work within forty five (45) days after submitted to City. City shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud, and such gross mistakes as amount to fraud. Acceptance of any work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 4 and Section 5, pertaining to insurance and indemnification, respectively.
1.4 Assignment of Personnel. Contractor shall assign only competent personnel to perform the Services. Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the Services. Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the Services, prior to and during any such performance. In the event that City, in its sole discretion, at any time during the term of this Agreement, desires the reassignment of any such persons, Contractor shall, immediately upon receiving notice from City of such desire of City, reassign such person or persons.
1.5 Time. Time is of the essence in the performance of this Agreement.
Contractor shall devote such time to the performance of the Services pursuant to this
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Agreement as may be reasonably necessary to satisfy Contractor’s obligations hereunder. Contractor shall commence the Services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the Scope of Services. When requested by Contractor, extensions to the time period(s) specified in the Scope of Services may be approved in writing by the Contract Administrator but not shall not exceed one hundred eighty (180) days cumulatively.
1.6 Force Majeure. The time period(s) specified in the Scope of Services for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental agency, including City, if Contractor shall within ten (10) days of the commencement of such delay notify the Contract Administrator in writing of the causes of the delay. The Contract Administrator shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the sole judgment of the Contract Administrator such delay is justified. The Contract Administrator’s determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Contractor be entitled to recover damages against City for any delay in the performance of this Agreement, however caused, Contractor’s sole remedy being extension of this Agreement pursuant to this Section.
1.7 Suspension of Services. The City Engineer of City (“Engineer”) shall have the authority to suspend the Services, wholly or in part, for such period as the Engineer may deem necessary, due to unsuitable weather or to such other conditions as are considered unfavorable for the suitable prosecution of the Services, or for such time as the Engineer may deem necessary due to the failure on the part of Contractor to carry out orders given or to perform any provisions of the Services. Contractor shall immediately comply with the written order of the Engineer to suspend the Services wholly or in part and shall not resume the Services until ordered to do so in writing by the Engineer. Such suspension shall be without liability to Contractor on the part of City. In the event a suspension of work is ordered because of failure on the part of Contractor to carry out orders given or to perform any provisions of the Services, such suspension of the Services shall not relieve Contractor of responsibility to complete the Services within the time limit set forth herein and shall not be considered cause for extension of the time for completion and, further, such suspension of the Services shall not entitle Contractor to any additional compensation.
1.8 Familiarity with Work and Worksite. By executing this Agreement, Contractor warrants that Contractor (i) has thoroughly investigated and considered the Services, (ii) has carefully considered how the Services should be performed, and (iii) fully understands the facilities, difficulties, and restrictions attending performance of the Services. If the Services involve work upon any site, Contractor warrants that Contractor
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has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of the Services hereunder. Should Contractor discover any latent or unknown conditions, which will materially affect the performance of the Services hereunder, Contractor shall immediately inform City of such fact and shall not proceed until written instructions are received from the Contract Administrator.
1.9 Further Responsibilities of the Parties. Both Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Both Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. Unless otherwise specified in this Agreement, neither Party shall be responsible for the service of the other.
SECTION 2. COMPENSATION.
2.1 Contract Amount. City hereby agrees to pay Contractor a sum not to exceed THREE HUNDRED SEVENTY TWO THOUSAND ONE HUNDRED
DOLLARS ($372,100) notwithstanding any contrary indications that may be contained in Contractor’s proposal or bid, for the Services to be performed and reimbursable costs incurred under this Agreement. This compensation may be administratively adjusted pursuant to Section 8.4 herein. In the event of a conflict between this Agreement and Exhibit A, regarding the amount of compensation, this Agreement shall prevail. City shall pay Contractor for the Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified in this Section 2 shall be the only payments from City to Contractor for the Services rendered pursuant to this Agreement.
Contractor shall submit all invoices to City in the manner specified herein.
2.2 Method of Compensation. The method of compensation may include: (i) a lump sum payment upon completion, (ii) payment in accordance with specified tasks or the percentage of completion of the Services, (iii) payment for time and materials based upon Contractor’s rates as specified in the Scope of Services, provided that time estimates are provided for the performance of subtasks, or (iv) such other methods as may be specified in the Scope of Services. In no event shall compensation exceed the amount set forth in Subsection 2.1.
2.3 Invoices. Contractor shall submit invoices monthly during the term of this Agreement, based on the cost for the Services performed and reimbursable costs incurred prior to the invoice date. The invoice shall detail charges for all necessary and actual expenses by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and sub-contractor contracts. Subcontractor charges shall also be detailed by such categories. Invoices shall contain:
a. Serial identifications of progress bills; i.e., Progress Bill No. 1 for the first invoice, etc.;
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b. The beginning and ending dates of the billing period; c. A “Task Summary” containing the original contract amount, the amount of prior billings, the total due this period, the balance available under this Agreement, and the percentage of completion;
d. At City’s option, for each item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person performing the Services, the hours spent by each person, a brief description of the Services, and each reimbursable expense;
e. The total number of hours of work performed under this Agreement by Contractor and each employee, agent, and subcontractor of Contractor performing the Services hereunder necessary to complete the Services described in Exhibit A; f. Receipts for expenses to be reimbursed;
g. The Principals’ signatures.
Invoices shall be submitted to:
City of Yorba Linda
Attn: Accounts Payable
4845 Casa Loma Ave
Yorba Linda, CA 92886
2.4 City Payment of Invoices. City shall independently review each invoice submitted by Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. City will use its best efforts to cause Contractor to be paid within thirty (30) days of receipt of Contractor’s correct and undisputed invoice. In the event any charges or expenses are disputed by City, the original invoice shall be returned by City to Contractor for correction and resubmission.
Pursuant to California Public Contract Code Section 20104.50, Contractor is notified that for public works Services, City’s failure to pay undisputed and properly submitted invoices within thirty (30) days shall be subject to interest at the legal rate set forth in Code of Civil Procedure Section 685.010. Any invoice for public works Services determined not to be a proper invoice suitable for payment shall be returned to the Contractor as soon as practicable, but not later than seven (7) days, after receipt. An invoice returned pursuant to the foregoing shall be accompanied by a writing stating the reasons why the invoice is not proper.
2.5 Retention of Funds, Final Payment.
a. Contractor hereby authorizes City, in the sole discretion of the Contract Administrator, to retain and deduct from any amount payable to Contractor not exceeding five percent (5%) of the total compensation The retained funds shall be paid
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to Contractor within sixty (60) days after final acceptance of the Services by the City and after Contractor has furnished City with full release of all undisputed payments under this Agreement. In the event there are any claims specifically excluded by Contractor from the operation of the release, City may retain proceeds of up to one hundred fifty percent (150%) of the amount in dispute. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of Contractor to insure, indemnify, and protect City as provided in this Agreement. b. Notwithstanding Paragraph a, California Public Contract Code Section 22300 permits the substitution of securities for any retention monies withheld by City for public works Services. At the request and expense of Contractor, securities equivalent to the monies withheld shall be deposited with City, or with a state or federally chartered bank in California as the escrow agent, who shall then pay such monies to Contractor. City retains the sole discretion to approve the bank selected by Contractor to serve as escrow agent. Upon satisfactory completion of the Services, the securities shall be returned to Contractor. Securities eligible for investment shall include those listed in Government Code Section 16430. Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest thereon. In the alternative, under California Public Contract Code Section 22300, Contractor may request City to make payment of earned retention monies directly to the escrow agent at the expense of Contractor. Also at Contractor’s expense, Contractor may direct investment of the payments into securities, and Contractor shall receive interest earned on such investment upon the same conditions as provided for securities deposited by Contractor.
Upon satisfactory completion of the Services, Contractor shall receive from the escrow agent all securities, interest and payments received by escrow agent from City pursuant to the terms of California Public Contract Code Section 22300.
2.6 Total Payment. City shall not pay any additional sum for any expense or cost whatsoever incurred by Contractor in rendering the Services pursuant to this Agreement. City shall make no payment for any extra, further, or additional service pursuant to this Agreement. In no event shall Contractor submit any invoice for an amount in excess of the maximum amount of compensation provided above either for a task or for the entirety of the Services performed pursuant to this Agreement, unless this Agreement is modified in writing prior to the submission of such an invoice.
2.7 Hourly Fees. Fees for the Services performed by Contractor on an hourly basis shall not exceed the amounts shown on Exhibit A.
2.8 Reimbursable Expenses. Reimbursable expenses are included within the maximum amount of this Agreement. Reimbursable expenses not listed in Exhibit A must be approved in advance by the Contract Administrator, in his or her sole discretion.
Contractor shall not be entitled to any additional compensation for the attendance of meetings reasonably deemed necessary by City for the execution of the Services.
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2.9 Payment of Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this Agreement and any federal or state taxes.
2.10 Payment upon Termination. In the event that City or Contractor terminates this Agreement pursuant to Section 8, City shall compensate Contractor for all outstanding costs and reimbursable expenses incurred for Services satisfactorily completed and for reimbursable expenses as of the date of written notice of termination.
Contractor shall maintain adequate logs and timesheets in order to verify costs and reimbursable expenses incurred to that date.
2.11 No Waiver. Payment to Contractor for Services performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
SECTION 3. FACILITIES AND EQUIPMENT.
3.1 Contractor Provides Facilities and Equipment. Except as otherwise provided, Contractor shall, at its sole cost and expense, provide all facilities and equipment necessary to perform the services required by this Agreement. In no event shall City be required to furnish any facility or equipment that may involve incurring any direct expense.
3.2 Utility Relocation. Where applicable, pursuant to California Government Code Section 4215, City is responsible for removal, relocation, or protection of existing main or trunkline utilities to the extent such utilities were not identified in the invitation for bids or specifications. City shall reimburse Contractor for any costs incurred in locating, repairing damage not caused by Contractor, and removing or relocating such unidentified utility facilities. Contractor shall not be assessed liquidated damages for delay arising from the removal or relocation of such unidentified utility facilities.
3.3 Trenches or Excavations. Pursuant to California Public Contract Code Sections 6705 and 7104, in the event the work included in this Agreement requires excavations more than four (4) feet in depth, the following shall apply. a. Contractor shall promptly, and before the following conditions are disturbed, notify City, in writing, of any: (1) material that Contractor believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law; (2) subsurface or latent physical conditions at the site different from those indicated by information about the site made available to bidders prior to the deadline for submitting bids; or (3) unknown physical conditions at the site of any unusual nature, different materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement. b. If the Services involve an estimated expenditure in excess of TwentyFive Thousand Dollars ($25,000) for the excavation of any trench or trenches five (5) feet or more in depth, Contractor shall submit for acceptance by the City Engineer, in advance
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of excavation, a detailed plan showing the design of shoring, bracing, sloping, or other provisions to be made for worker protection from the hazard of caving ground during the excavation of such trench or trenches. If such plan varies from the shoring system standards, the plan shall be prepared by a registered civil or structural engineer. c. City shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in Contractor’s cost of, or the time required for, performance of any part of the work shall issue an order or amendment for additional services pursuant to Subsection
8.4 or 8.5 of this Agreement.
d. If a dispute arises between City and Contractor whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in Contractor’s cost of, or time required for, performance of any part of the work, Contractor shall not be excused from any scheduled completion date provided for by this Agreement, but shall proceed with all work to be performed under this Agreement.
Contractor shall retain any and all rights provided either by contract or by law which pertain to the resolution of disputes and protests between the Parties.
SECTION 4. INSURANCE AND BOND REQUIREMENTS.
Before beginning any work under this Agreement, Contractor, at its own cost and expense, shall procure the types and amounts of insurance listed below and provide certified copies of insurance policies and original endorsements, indicating that Contractor has obtained or currently maintains insurance that meets the requirements of this Section and which is satisfactory, in all respects, to City. Contractor shall also deliver the payment and performance bonds required by this Section 4 with City. Contractor shall maintain the insurance policies required by this Section throughout the term of this Agreement. The cost of such insurance shall be included in Contractor’s compensation.
Contractor shall not allow any subcontractor, Contractor or other agent to commence work on any subcontract until Contractor has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to City, and has delivered the required bonds to City. Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Contractor acknowledges the insurance policy must cover inter-insured suits between City and other insureds. Contractor agrees that the requirement to provide insurance shall not be construed as limiting in any way the extent to which Contractor may be held responsible for the payment of damages to any persons or property resulting from Contractor’s activities or the activities of any person or persons for which Contractor is otherwise responsible nor shall it limit Contractor’s indemnification liabilities as provided in Section 5. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Contract Administrator in the Contract Administrator’s sole discretion. If this Agreement continues for more than three (3) years
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duration, or in the event the Contract Administrator determines that the Services to be performed under this Agreement creates an increased or decreased risk of loss to City, Contractor agrees that the minimum limits of the insurance policies and the performance bond required by Section 4 may be changed accordingly upon receipt of written notice from the Contract Administrator; provided that Contractor shall have the right to appeal a determination of increased coverage by the Contract Administrator to the City Council of City within ten (10) days of receipt of notice from the Contract Administrator.
4.1 Workers’ Compensation. Contractor shall, at its sole cost and expense, maintain Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance for any and all persons employed directly or indirectly by Contractor pursuant to the provisions of the California Labor Code. Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per accident, ONE MILLION DOLLARS ($1,000,000.00) disease per employee, and ONE MILLION DOLLARS ($1,000,000.00) disease per policy.
In the alternative, Contractor may rely on a self-insurance program to meet those requirements, but only if the program of self-insurance complies fully with the provisions of the California Labor Code. Determination of whether a self-insurance program meets the standards of the California Labor Code shall be solely in the discretion of the Contract Administrator. The insurer, if insurance is provided, or Contractor, if a program of selfinsurance is provided, shall waive all rights of subrogation against City and its officers, officials, employees, and authorized volunteers for loss arising from the Services performed under this Agreement. Pursuant to California Labor Code Section 1860, Contractor is required to secure the payment of compensation to Contractor’s employees.
Pursuant to California Labor Code Section 1861, Contractor hereby submits to City the following:
I am aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.
Contractor Initial: _______
4.2 Commercial General and Automobile Liability Insurance. a. General Requirements. Contractor, at its own cost and expense, shall maintain commercial general and automobile liability insurance for the term of this Agreement in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence, combined single limit coverage, for risks associated with the Services contemplated by this Agreement, TWO MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General Liability Insurance or an Automobile Liability Insurance form or other form with a general aggregate limit is used, either the
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general aggregate limit shall apply separately to the Services to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Such coverage shall include but shall not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom, and damage to property resulting from the Services contemplated under this Agreement, including the use of hired, owned, leased, and non-owned automobiles. b. Minimum Scope of Coverage. Commercial general coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001. Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability form CA 0001 Code 2, 8, and 9 including “any auto” and endorsement CA 0025 or equivalent). No endorsement shall be attached limiting the coverage.
c. Additional Requirements. Each of the following shall be included in the insurance coverage or added as a certified endorsement to the policy:
(i) The insurance shall cover on an occurrence or an accident basis, and not on a claims-made basis.
(ii) The policy must cover inter-insured suits and include a “Separation of Insureds” or “severability” clause which treats each insured separately. (iii) The insurance must be maintained for at least one (1) year following the completion of the Services or the expiration or termination of this Agreement. (iv) Any failure of Contractor to comply with reporting provisions of the policy shall not affect coverage provided to City and its officers, employees, agents, and volunteers.
4.3 Professional Liability Insurance.
a. General Requirements. Contractor, at its own expense, shall maintain professional liability insurance appropriate to Contractor’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of, or related to the Services performed under this Agreement. The insurance must be maintained for at least five (5) consecutive years following the completion of the Services or the expiration or termination of this Agreement. During this additional five (5)-year period, Contractor shall annually and upon request of City submit written evidence of this continuous coverage. b. Claims-Made Limitations. The following provisions shall apply if the professional liability coverage is written on a claims-made form:
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(i) The retroactive date of the policy must be shown and must be no later than the commencement of the Services.
(ii) If coverage is canceled or not renewed and it is not replaced with another claims-made policy form with a retroactive date that precedes the Effective Date of this Agreement, Contractor must provide extended reporting coverage for a minimum of five (5) years after the expiration or termination of this Agreement or the completion of the Services. Such continuation coverage may be provided by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the Services under this Agreement. City shall have the right to exercise, at Contractor’s sole cost and expense, any extended reporting provisions of the policy, if Contractor cancels or does not renew the coverage. (iii) A copy of the claim reporting requirements must be submitted to City prior to the commencement of the Services under this Agreement.
4.4 Pollution Liability Insurance. Contractor, at its own expense, shall maintain pollution liability insurance written on a per occurrence for bodily injury, personal injury and property damage. The policy of insurance shall be in an amount not less than ONE MILLION DOLLARS ($1,000,000.00) per pollution incident and ONE MILLION DOLLARS ($1,000,000.00) in the general aggregate. The policy shall apply to any incidents at or from any location on which Contractor performs the Services under this Agreement. The insurance must be maintained for at least one (1) year following the completion of Contractor’s services or the expiration or termination of this Agreement.
4.5 All Policies Requirements.
a. Verification of Coverage. Prior to beginning the Services under this Agreement, Contractor shall furnish City with certificates of insurance, additional insured endorsement or policy language granting additional insured status complete certified copies of all policies, including complete certified copies of all endorsements. All copies of policies and certified endorsements shall show the signature of a person authorized by that insurer to bind coverage on its behalf. The certificate of insurance must include the following reference: Black Gold Golf Club Walk-In Cooler Project. The name and address for additional insured endorsements, certificates of insurance and notice of cancellation is: City of Yorba Linda, 4845 Casa Loma Ave, Yorba Linda, CA 92886. City must be endorsed as an additional insured for liability arising out of ongoing and completed operations by or on behalf of Contractor.
b. Notice of Reduction in or Cancellation of Coverage. Contractor shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self insured retention is increased. In the event any of said policies
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of insurance are cancelled, Contractor shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 4 to the Contract Administrator. c. Additional Insured; Primary Insurance. City and its officers, employees, agents, and authorized volunteers shall be covered as additional insureds with respect to each of the following: liability arising out of the Services performed by or on behalf of Contractor, including the insured’s general supervision of Contractor; products and completed operations of Contractor, as applicable; premises owned, occupied, or used by Contractor; and automobiles owned, leased, or used by Contractor in the course of providing the Services pursuant to this Agreement. The coverage shall contain no special limitations on the scope of protection afforded to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City as an additional insured must apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by City. Additional insured status shall continue for one (1) year after the expiration or termination of this Agreement or completion of the Services.
A certified endorsement must be attached to all policies stating that coverage is primary insurance with respect to City and its officers, officials, employees, and volunteers, and that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss under the coverage. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against City, its officers, employees, agents, authorized volunteers, and their respective insurers. d. Deductibles and Self-Insured Retentions. Contractor shall obtain the written approval of City for the self-insured retentions and deductibles before beginning any of the Services. During the term of this Agreement, only upon the prior express written authorization of the Contract Administrator, Contractor may increase such deductibles or self-insured retentions with respect to City, its officers, employees, agents, and volunteers. The Contract Administrator may condition approval of an increase in deductible or self-insured retention levels with a requirement that Contractor procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses that is satisfactory in all respects to each of them. e. Subcontractors. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and certified endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
f. Variation. The Contract Administrator may, but is not required to, approve in writing a variation in the foregoing insurance requirements, upon a determination that the coverage, scope, limits, and forms of such insurance are either not commercially available, or that City’s interests are otherwise fully protected.
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4.6 Payment and Performance Bonds. Concurrently with execution of this Agreement, Contractor shall deliver to City a payment (labor and materials) bond and a performance bond, each in the sum of the amount of this Agreement, in the forms provided by the City Clerk, which secure the faithful performance of this Agreement. The bonds shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bonds shall be unconditional and remain in force during the entire term of this Agreement and shall be null and void only if Contractor promptly and faithfully performs all terms and conditions of this Agreement. Payment and performance bonds shall be secured from a surety company rated Grade “A” or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Contract Administrator due to unique circumstances, and shall be authorized to write such bonds in the State of California. Contractor shall pay all bond premiums, costs, and incidentals.
Pursuant to California Public Contract Code Section 22300, substitution of eligible equivalent securities for any moneys withheld to ensure performance under this Agreement may be permitted at the request and expense of Contractor. Without limiting the foregoing, Contractor understands that Civil Code Section 9550 requires a payment bond for all public works contracts involving an expenditure of more than Twenty-Five Thousand Dollars ($25,000).
4.7 Remedies. In addition to any other remedies at law or equity City may have if Contractor fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option, exercise any of the following remedies, which are alternatives to other remedies City may have and are not the exclusive remedy for Contractor’s breach:
a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement; b. Order Contractor to stop work under this Agreement or withhold any payment that becomes due to Contractor hereunder, or both stop work and withhold any payment, until Contractor demonstrates compliance with the requirements hereof; and/or c. Terminate this Agreement.
SECTION 5. INDEMNIFICATION.
5.1 Indemnification for Professional Liability. Where the law establishes a professional standard of care for performance of the Services, to the fullest extent permitted by law, Contractor shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, officials, volunteers, and agents from and against any and all claims, losses, costs, damages, expenses, liabilities, liens, actions, causes of action (whether in tort, contract, under statute, at law, in equity, or otherwise) charges, awards, assessments, fines, or penalties
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of any kind (including costs and expenses incurred by City and reasonable consultant and expert fees and expenses of investigation, costs of whatever kind and nature and, if Contractor fails to provide a defense for City, the legal costs of counsel retained by City) and any judgment (collectively, “Claims”) to the extent same are caused in whole or in part by any negligent or wrongful act, error, or omission of Contractor, its officers, agents, employees, or subcontractors (or any entity or individual that Contractor shall bear the legal liability thereof) in the performance of professional services under this Agreement.
5.2 Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Contractor shall indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and all of its officers, employees, officials, volunteers, and agents from and against any and all Claims, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Contractor or by any individual or entity for which Contractor is legally liable, including but not limited to officers, agents, employees or subcontractors of Contractor. Contractor will promptly pay any judgment rendered against City, its officers, agents, or employees for any such Claims arising out of or in connection with the performance of or failure to perform such Services, operations or activities of Contractor hereunder.
5.3 Subcontractors. Contractor shall incorporate similar indemnity agreements with its subcontractors. Contractor shall be fully responsible to indemnify City, and failure of City to monitor compliance with these provisions shall not be a waiver hereof.
5.4 Limitation of Indemnification. The provisions of this Section 5 do not apply to claims occurring as a result of City’s sole or active negligence. The provisions of this Section 5 shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officers, officials, employees, and agents acting in an official capacity. In the event any applicable law contains a limitation on indemnification under this Agreement, such limitation shall supersede the provisions herein only to the extent required by said law.
SECTION 6. INDEPENDENT CONTRACTOR.
At all times during the term of this Agreement, Contractor shall be an independent contractor and shall not be an employee of City. City shall have the right to control Contractor only insofar as the results of the Services rendered pursuant to this Agreement and assignment of personnel pursuant to Subsection 1.4; however, otherwise City shall not have the right to control the means by which Contractor accomplishes the Services rendered pursuant to this Agreement. The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Contractor shall not at any time or in any manner represent that it is or any of its officers, employees, or agents are in any manner officers, officials, employees, or agents of City. Contractor shall not incur or have the power to incur any debt, obligation, or liability whatever against City, or bind City in any manner. Except for
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the fees paid to Contractor as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Contractor for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (“PERS”) as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. Contractor shall perform all Services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role.
City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor.
SECTION 7. LEGAL REQUIREMENTS.
7.1 Governing Law. The laws of the State of California shall govern this Agreement.
7.2 Compliance with Applicable Laws. Contractor and any subcontractor shall comply with all applicable local, state, and federal laws and regulations applicable to the performance of the work hereunder. Contractor shall not hire or employ any person to perform work within City or allow any person to perform the Services required under this Agreement unless such person is properly documented and legally entitled to be employed within the United States. Contractor acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations and effectuating compliance with such laws. Contractor shall require the same of all subcontractors.
7.3 Prevailing Wages. Contractor acknowledges and agrees that it shall be independently responsible for reviewing the applicable prevailing wage laws and regulations and effectuating compliance with such laws, including, but not limited to the prevailing wage and related requirements set forth in this Subsection 7.3. Contractor shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of California Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law. a. Public Work. Contractor hereby expressly acknowledges and agrees that City has never previously affirmatively represented to Contractor, its employees or agents in writing or otherwise that the Services are not a “public work,” as defined in Section 1720 of the California Labor Code. It is agreed by the Parties that, in connection with the development, construction (as defined by applicable law) and
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operation of the Services, including, without limitation, any public work (as defined by applicable law), if any, Contractor shall bear all risks of payment or non-payment of state and/or federal prevailing wages and/or the implementation of California Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, and/or any other provision of law. To the extent applicable, City will enforce all penalties required by law for Contractor’s failure to pay prevailing wages. b. California Labor Code. The Contractor’s attention is directed to Division 2, Part 7, Chapter 1 of the California Labor Code and especially to Article 2 (Wages); and Article 3 (Working Hours), thereof.
(i) In accordance with Sections 1773 and 1773.2 of the California Labor Code, City has found and determined the general prevailing rates of wages in the locality in which the public work is to be performed are those determined by the Director of Industrial Relations and available at https://www.dir.ca.gov/OPRL/2022- 1/PWD/Southern.html. Copies of the prevailing rates of wages are maintained with City’s principal office and are available to any interested party on request. Contractor shall post a copy of the prevailing rate of per diem wages at each job site. (ii) Contractor is aware of and will comply with the provisions of California Labor Code Section 1776, including the keeping of payroll records and furnishing certified copies thereof in accordance with said Section. Pursuant to California Labor Code Section 1771.4, Contractor must submit certified payroll records to the Labor Commissioner using the Department of Industrial Relations’ electronic certified payroll reporting (eCPR) system.
(iii) Pursuant to California Labor Code Section 1810, it is stipulated hereby that eight (8) hours labor constitutes a legal day’s work hereunder. (iv) Pursuant to California Labor Code Section 1815, work performed by employees of contractors in excess of eight (8) hours per day, and 40 hours during any one week, shall be permitted upon public work upon compensation for all hours worked in excess of eight (8) hours per day at not less than 1 ½ times the basic rate of pay.
(v) Pursuant to California Labor Code Section 1813, it is stipulated hereby that Contractor shall, as a penalty to City, forfeit twenty-five dollars ($25) for each worker employed in the execution of this Agreement by Contractor or by any subcontractor hereunder for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one (1) calendar week in violation of the provisions of Article 3 (commencing with Section 1810), Chapter 1, Part 7, Division 2 of the California Labor Code. (vi) Contractor is aware of and will comply with the provisions of California Labor Code Sections 1777.5 and 1777.6 with respect to the employment of
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apprentices. Pursuant to Section 1777.5 it is hereby stipulated that Contractor will be responsible for obtaining compliance therewith on the part of any and all sub-consultants or subcontractors employed by Contractor in connection with this Agreement. (vii) Pursuant to California Labor Code Section 1775, it is hereby stipulated that Contractor shall, as a penalty to City, forfeit not more than two-hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for the Services by Contractor or any sub-consultant or subcontractor.
c. Bidding Eligibility. Pursuant to California Labor Code Section 1771.1, no contractor or subcontractor (or consultant or subconsultant) may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations. Pursuant to California Public Contract Code Section 6109, Contractor may not perform any Services hereunder with a subcontractor who is ineligible to perform the Services pursuant to Section 1777.1 or 1777.7 of the California Labor Code.
d. DIR Monitoring. Pursuant to California Labor Code Section 1771.4, Contractor is hereby notified that this project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
e. Indemnification Related to Prevailing Wages. Section 5, Indemnification, specifically encompasses Claims arising from or related to (i) the noncompliance by Contractor or any party performing the Services of any applicable local, state, and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, the requirement to pay state prevailing wages and hire apprentices); (ii) the implementation of California Labor Code Sections 1726 and 1781, as the same may be amended from time to time, or any other similar law; and/or (iii) failure by Contractor or any party performing the Services to provide any required disclosure or identification as required by California Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.
7.4 Licenses and Permits, Fees, and Assessments. Contractor represents, warrants, and covenants to City that Contractor and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that are legally required to practice their respective professions, and perform the Services. Contractor represents, warrants, and covenants to City that Contractor and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions, and perform the Services.
In addition to the foregoing, Contractor and any subcontractors shall obtain and maintain during the term of this Agreement valid business licenses from City. Contractor shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties
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and interest, which may be imposed by law and arise from or are necessary for Contractor’s performance of the Services, and shall indemnify, defend and hold harmless City, its officers, employees or agents of City, against any such fees, assessments, taxes, penalties or interest levied, assessed, or imposed against City hereunder.
7.5 Conflicts of Interest. Contractor represents, warrants, and covenants that Contractor presently has no interest, direct or indirect, which would interfere with or impair in any manner or degree the performance of Contractor’s obligations and responsibilities under this Agreement. Contractor further agrees that while this Agreement is in effect, Contractor shall not acquire or otherwise obtain any interest, direct or indirect, that would interfere with or impair in any manner or degree the performance of Contractor’s obligations and responsibilities under this Agreement.
7.6 Unfair Business Practices Claims. In entering into this Agreement, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials related to this Agreement. This assignment shall be made and become effective at the time City renders final payment to Contractor without further acknowledgment of the Parties.
7.7 Annual Appropriation of Funding. In accord with Article 16 Section 18 of the California Constitution, payment of compensation under this Agreement is contingent upon annual appropriation of funds by City for that purpose. Contractor acknowledges and agrees that to the extent that the Services extend beyond one (1) fiscal year, payment for such Services is expressly conditioned on City’s annual appropriation of funds for such Services for each year. If no funds are appropriated then this Agreement shall be terminated. City pledges and agrees to process such appropriation requests annually and in good faith. Nothing in this Subsection shall be construed to limit the right of either Party to terminate this Agreement as provided herein.
7.8 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement, Contractor and its sureties shall be liable for and shall pay to City the sum of FIVE HUNDRED DOLLARS ($500.00) as liquidated damages for each working day of delay in the performance of any of the Services. City may withhold from any monies payable on account of the Services performed by Contractor any accrued liquidated damages.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 Termination. City may terminate this Agreement at any time and without cause upon thirty (30) days’ written notification to Contractor. City may also terminate this Agreement pursuant to Subsection 8.8.
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8.2 Termination by Contractor. Contractor may terminate this Agreement upon sixty (60) days’ written notice to City.
8.3 Consequences of Termination. In the event of termination, Contractor shall be entitled to compensation for the Services satisfactorily performed up to the date of termination; City, however, may condition payment of such compensation upon Contractor delivering to City any or all materials provided to Contractor or prepared by or for Contractor or City in connection with this Agreement. Upon receipt of any notice of termination, Contractor shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Administrator.
8.4 Administrative Change Orders. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from said work. No such extra work may be undertaken unless a written change order is first given by the Contract Administrator to Contractor, incorporating therein any adjustment in (i) the total compensation, and/or (ii) the time to perform this Agreement, which said adjustments are subject to the written approval of Contractor. Any increase in compensation of up to five percent (5%) of the total compensation or TWENTY-FIVE THOUSAND DOLLARS ($25,000), whichever is less; or in the time to perform of up to one hundred eighty (180) days may be approved in writing by the Contract Administrator. Contractor understands and agrees that, if City grants an extension in time without additional work, City shall have no obligation to provide Contractor with compensation beyond the maximum amount provided for in this Agreement. Similarly, unless authorized by the Contract Administrator, City shall have no obligation to reimburse Contractor for any otherwise reimbursable expenses incurred during the extension period. All other extensions or modifications to this Agreement shall require a written amendment pursuant to Subsection 8.5.
8.5 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. The Contract Administrator shall have the authority to execute amendments to this Agreement which do not materially change the terms hereof, in the Contract Administrator’s discretion, to the extent permitted by applicable federal, state, and local law. The Contract Administrator may refer any proposed amendment to the City Council for review and approval.
8.6 Assignment and Subcontracting. City and Contractor recognize and agree that this Agreement contemplates personal performance by Contractor and is based upon a determination of Contractor’s unique personal competence, experience, and specialized personal knowledge. Moreover, a substantial inducement to City for entering into this Agreement was and is the professional reputation and competence of Contractor.
Contractor may not assign this Agreement or any interest therein without the prior written approval of the Contract Administrator. Contractor shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors noted in the Scope of Services, without prior written approval of the Contract
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Administrator. In the event of any unapproved assignment, including in connection with any bankruptcy proceeding, this Agreement shall be void. No approved assignment shall release Contractor or any surety of Contractor of any liability hereunder without the express consent of City.
8.7 Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between City and Contractor shall survive the expiration or termination of this Agreement.
8.8 Disputes, Default. In the event that Contractor is in default under the terms of this Agreement, City shall not have any obligation or duty to continue compensating Contractor for any of the Services performed after the date of default. Instead, City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, in the sole discretion of the Contract Administrator. During the period of time that Contractor is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, City's remedies shall include, but not be limited to, any or all of the following:
a. Immediately terminate this Agreement;
b. Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Contractor pursuant to this Agreement;
c. Retain a different contractor to complete the Services; and/or d. Charge Contractor the difference between the cost to complete the Services that is unfinished at the time of breach and the amount that City would have paid Contractor pursuant to Section 2 if Contractor had completed the Services.
Any failure on the part of City to give notice of Contractor’s default shall not be deemed to result in a waiver of City’s legal rights or any rights arising out of any provision of this Agreement.
8.9 Claims by Contractor. Claims, as that term is defined in California Public Contract Code Section 9204, by Contractor and, where applicable, any subcontractor, in connection with a public works project shall by subject to the mediation procedure in California Public Contract Code Section 9204.
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SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Documents and Data. All drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents, and other materials plans, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium (the “Documents and Materials”) prepared or caused to be prepared by Contractor, its employees, subcontractors, and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Administrator or upon the expiration or termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Documents and Materials hereunder. Any use, reuse or assignment of such completed Documents and Materials for other projects and/or use of uncompleted documents without specific written authorization by Contractor will be at City’s sole risk and without liability to Contractor, and Contractor’s guarantee and warranties shall not extend to such use, revise, or assignment. Contractor may retain copies of such Documents and Materials for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any Documents and Materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom.
9.2 Licensing of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, rights of reproduction, and other intellectual property embodied in the Documents and Materials. Contractor shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual license for the Documents and Materials the subcontractor prepares under this Agreement. Contractor represents and warrants that Contractor has the legal right to license any and all of the Documents and Materials. Contractor makes no such representation and warranty in regard to the Documents and Materials which were prepared by design professionals other than Contractor or provided to Contractor by City. City shall not be limited in any way in its use of the Documents and Materials at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
9.3 Records. Contractor shall keep, and require subcontractors to keep, such ledgers books of accounts, invoices, vouchers, canceled checks, reports (including but not limited to payroll reports), studies, or other documents relating to the disbursements charged to City and the Services performed hereunder (the “Books and Records”), as shall be necessary to perform the Services required by this Agreement and enable the Contract Administrator to evaluate the performance of such Services. Any and all such Books and Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Administrator
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shall have full and free access to such Books and Records at all times during normal business hours of City, including the right to inspect, copy, audit, and make records and transcripts from such Books and Records. Such Books and Records shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Books and Records in the event any audit is required. In the event of dissolution of Contractor’s business, custody of the Books and Records may be given to City, and access shall be provided by Contractor’s successor in interest. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement.
9.4 Reports. Contractor shall periodically prepare and submit to the Contract Administrator such reports concerning the performance of the Services required by this Agreement as the Contract Administrator shall require. Contractor hereby acknowledges that City is greatly concerned about the cost of the Services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Administrator of said fact, circumstance, technique, or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed.
9.5 Confidentiality. City and Contractor agree that, until final approval by City, all data, plans, specifications, reports, and other documents are confidential and will not be released to third parties without prior written consent of both Parties unless required by law. Contractor, its officers, employees, agents, or subcontractors, shall not, without prior written authorization from the Contract Administrator or unless requested by the City Attorney, voluntarily provide documents, declarations, letters of support, testimony at depositions, response to interrogatories, or other information concerning the work performed under this Agreement. If Contractor, or any officer, employee, agent, or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reimbursement and indemnity from Contractor for any Claims caused by or incurred as a result of Contractor’s conduct.
Contractor shall promptly notify City should Contractor, its officers, employees, agents, or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions, or other discovery request, court order, or subpoena from any party regarding this Agreement and the Services performed thereunder. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing, or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any
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such response does not imply or mean the right by City to control, direct, or rewrite said response. Response to a subpoena or court order shall not be considered a voluntary disclosure so long as Contractor gives City notice of such court order or subpoena as provided herein. Contractor understands and agrees that it may be required to provide documents to the City to be produced in response to a Public Records Act request.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys’ Fees. If either Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and expenses including costs, in addition to any other relief to which that Party may be entitled; provided, however, that the attorneys’ fees awarded pursuant to this Subsection shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the litigation. The court may set such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in Riverside County.
10.3 Severability. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby and all other parts of this Agreement shall nevertheless be in full force and effect.
10.4 Section Headings and Subheadings. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement.
10.5 No Implied Waiver of Breach. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision or a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work or services by Contractor shall not constitute a waiver of any of the provisions of this Agreement. No delay or omission in the exercise of any right or remedy by a nondefaulting Party on any default shall impair such right or remedy or be construed as a waiver. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
10.6 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties.
10.7 Contractor Principals and Representatives. The following principals of Contractor (“Principals”) are hereby designated as being the principals and
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representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith:
(Name) (Title)
(Name) (Title)
(Name) (Title)
It is expressly understood that the experience, knowledge, capability, and reputation of the Principals were a substantial inducement for City to enter into this Agreement. Therefore, the Principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the Services hereunder. All personnel of Contractor, and any authorized agents, shall at all times be under the exclusive direction and control of the Principals. For purposes of this Agreement, the Principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City.
10.8 City Contract Administration. This Agreement shall be administered by a City employee, Brad Skeene, Parks and Facilities Superintendent (“Contract Administrator”). All correspondence shall be directed to or through the Contract Administrator or his designee. It shall be Contractor’s responsibility to assure that the Contract Administrator is kept informed of the progress of the performance of the Services and Contractor shall refer any decisions which must be made by City to the Contract Administrator. Unless otherwise provided by applicable law, the Contract Administrator shall have the power to act on behalf of City for all purposes under this Agreement.
Unless otherwise provided in this Agreement, Contractor shall not accept direction or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Contractor shall be sent to:
Procon Development, Inc.
4522 Katella Avenue, Ste A
Los Alamitos, Ca 90720
Attn: Guy Castillo, President
Any written notice to City shall be sent to the Contract Administrator at:
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
Attn: Brad Skeene, Parks and Facilities Superintendent
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with a copy to:
City Clerk
City of Yorba Linda
4845 Casa Loma Ave
Yorba Linda, CA 92886
Any notice, demand, request, document, consent, approval, or communication either Party desires or is required to give to the other Party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail. Either Party may change its address by notifying the other Party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this Section.
10.10 Rights and Remedies. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
10.11 Integration, Interpretation. This Agreement, including Exhibits A and B, represents the entire and integrated agreement between City and Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral.
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply.
10.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.
10.13 Execution of Contract. The persons executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other agreement to which said Party is bound.
10.14 Nondiscrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that in the performance of this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without
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regard to their race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
10.15 No Third Party Beneficiaries. There are no intended third-party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder.
10.16 Nonliability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contractor, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Contractor or to its successor, or for breach of any obligation of the terms of this Agreement.
10.17 No Undue Influence. Contractor declares and warrants that no undue influence or pressure is used against or in concert with any officer or employee of City in connection with the award, terms or implementation of this Agreement, including any method of coercion, confidential financial arrangement, or financial inducement. No officer or employee of City shall receive compensation, directly or indirectly, from Contractor, or from any officer, employee, or agent of Contractor, in connection with the award of this Agreement or any work to be conducted as a result of this Agreement.
10.18 No Benefit to Arise to City Employees. No member, officer, or employee of City, or their designees or agents, and no public official who exercises authority over or has responsibilities with respect to this Agreement during his/her tenure or for one (1) year thereafter, shall have any interest, direct or indirect, in any agreement or subagreement, or the proceeds thereof, for the Services to be performed under this Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this Agreement as of the Effective Date.
CITY OF YORBA LINDA
Carlos Rodriguez, Mayor
Attest:
Marcia Brown, City Clerk
Approved as to Form:
Todd Litfin, City Attorney
PROCON DEVELOPMENT, INC.
By:
Name:
Title:
By:
Name:
Title:
[Note: 2 officer’s signatures required if
Contractor is a corporation, unless
provided with a certificate of secretary inlieu]
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EXHIBIT A
EXHIBIT A
SCOPE OF SERVICES
Services shall include Black Gold Golf Club Walk-In Cooler Project services, including labor, materials, services and equipment is the total amount of all lump sum items and of all unit price sums, determined by multiplying the unit price for each item times the actual quantity of each such item, in the amount not to exceed THREE HUNDRED SEVENTY TWO THOUSAND ONE HUNDRED DOLLARS ($372,100) as further detailed in the attached pages (if any). If the Services include Services pursuant to a request for proposals or bid, the Services shall include the work contemplated by the entire “Bid Package” or “Request for Proposals” for the Services, including all plans, addenda, documentation, and specifications attached thereto. A copy of the Bid Package and/or Request for Proposals, as applicable shall be retained with a copy of this Agreement.
Contractor shall keep a copy of the same for at least three (3) years following termination of this Agreement.
Black Gold Walk-In Cooler Project (2026)
Bids Received List
Bidder City Amount of Bid
1. Procon Development, Inc. Los Alamitos, CA $ 372,100.00
2. D3 Development Group Brea, CA $ non-responsive, bid was received after bid closing
for $498,000.
COMMUNITY DEVELOPMENT DEPARTMENT
DATE: MAY 19, 2026
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: NATE FARNSWORTH, COMMUNITY DEVELOPMENT DIRECTOR
SUBJECT: APPROVE AN AFFORDABLE HOUSING AGREEMENT AND DENSITY
BONUS AGREEMENT AND DECLARATION OF CC&R WITH THE OLSON
COMPANY
RECOMMENDATION
1. Approve an Affordable Housing Agreement and Density Bonus Agreement and Declaration of Covenants, Conditions and Restrictions with Olson Urban VI – Yorba Linda 2 LLC.
2. Authorize the City Manager to approve alternative covenant language (including subordination if warranted) provided the developer demonstrates that it is unable to finance the sale of the affordable units.
SUMMARY
The recommended agreement formalizes affordable housing obligations for a development at 4861 Liverpool Street, ensuring eight of the 40 units are sold to qualified moderate-income households and restricted for 45 years.
DISCUSSION
Planning Commission Resolution No. 5655, Condition of Approval No. 108 requires Olson Company to enter into an Affordable Housing Agreement (AHA) to restrict eight moderateincome restricted units to further the State’s affordable housing requirements.
The AHA:
1. Requires eight affordable units to be sold to qualified buyers and with 45-year affordability covenants
2. Restricts the eight units to moderate-income households
APPROVE AN AFFORDABLE HOUSING AGREEMENT AND DENSITY BONUS
AGREEMENT AND DECLARATION OF CC&R WITH THE OLSON COMPANY P a g e | 2
3. Requires the developer to identify qualified buyers and sell the units at an affordable price
The developer will sell the units through a City-approved lottery system. Priority will be given to buyers who live and/or work within Yorba Linda.
When the restricted units are re-sold, the new owner must also be income qualified, subject to verification by the City throughout the 45-year covenant.
The developer is concerned that the City’s long-term affordability covenants’ first priority lien position could hinder homebuyers’ ability to obtain financing. To address this concern, it is recommended that the City Council authorize the City Manager to approve alternative covenant language (including subordination if warranted) provided the developer demonstrates that it is unable to finance the sale of the affordable units. Prior to requesting alternative covenant language, the developer shall demonstrate to the City’s satisfaction that it made good faith efforts to secure financing through a broad range of lending institutions experienced in below-market-rate mortgage lending.
FISCAL IMPACT
The City will incur modest costs to monitor and report on the AHA and to verify sales and buyer eligibility.
ALTERNATIVES
Do not approve the recommendation and provide alternative direction.
ATTACHMENT
1. Affordable Housing Agreement and Density Bonus Agreement and Declaration of Covenants, Conditions and Restrictions
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Yorba Linda
4845 Casa Loma
Yorba Linda, CA 92886
Attention: City Clerk
(Space Above for Recorder’s Use)
(Exempt from Recordation Fee per Gov. Code § 27383)
AFFORDABLE HOUSING AND DENSITY BONUS AGREEMENT AND
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
THIS AFFORDABLE HOUSING AND DENSITY BONUS AGREEMENT AND DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS (the “Agreement”) is made by and between OLSON URBAN VI – YORBA LINDA 2, LLC, a Delaware limited liability company (the “Developer”), and the CITY OF YORBA LINDA, a California municipal corporation (the “City”) as of the ____ day of ____________, 2026.
R E C I T A L S
A. Developer owns fee title to that certain real property located at 4861 Liverpool Street, in the City of Yorba Linda, County of Orange,State of California, legally described in the legal description attached hereto as Exhibit “A” (the “Property”). The Property comprises approximately one and nine-tenths (1.9) acres.
B. On January 6, 2025, Developer submitted an application to City for development of a new townhome condominium project on the Property, which will include a total of forty (40) units (the “Project”). On December 10, 2025, the City of Yorba Linda Traffic Commission (“Traffic Commission”) held a public hearing regarding the Project, at which the Traffic Commission recommended that the City of Yorba Linda Planning Commission (“Planning Commission”) approve the Project.
On January 14, 2026, the Planning Commission held a public hearing, at which the Planning Commission approved the Project.
C. The Property is zoned Residential Urban (RU) and is in the City’s Congregational Lands Overlay (CLO) Zone, which allows for a minimum of thirty-eight (38) units and a maximum of sixty-six (66) units to be developed on the Property, and requires that a minimum of twenty percent (20%) of the units developed shall be offered to, and sold to low or moderate income households at an affordable housing cost, and such units shall be restricted for a minimum of forty-five (45) years.
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D. Pursuant to the CLO Zone requirements, eight(8) of the residential units to be constructed by Developer pursuant to the Project (the “Affordable Units”) are required to be restricted, for forty-five (45) years, for sale to and ownership and occupancy by households which qualify as “persons and families of moderate income” pursuant to Health and Safety Code section 50093 at an affordable sales price, as calculated and determined pursuant to the methodology set forth in Health and Safety Code section 50052.5.
E. Pursuant to the State of California’s Density Bonus Law (Government Code Section 65915 et seq.) (the “Density Bonus Law”), the Project qualifies for a density bonus (which Developer has elected not to request), two incentives or concessions pursuant to Government Code Section 65915(d)(2)(B), vehicular parking ratios pursuant to Government Code Section 65915(p)(1), and certain waivers or reductions of development standards pursuant to Government Code Section 65915(e)(1).
F. Developer has requested, and City has agreed to and approved the following waivers:
1. A waiver of development standards to allow an approximately 15- foot front yard setback where 20 feet is required.
2. A waiver of development standards to allow a 4-foot side yard interior setback where interior side yard setbacks are required to have a cumulative total of both side yards of 20 feet.
3. A waiver of development standards to allow a 4-foot 8-inch rear yard setback where 25 feet is required.
4. A waiver of development standards to allow a 7-foot minimum building separation where 10 feet is required.
5. A waiver of development standards to allow a 4-foot 8-inch setback to a single-family zone where 100 feet is required for 3-story structures.
6. A waiver of development standards to waive open space requirements.
7. A waiver of development standards to reduce the requirement to provide landscaping on a minimum of 50% of the building site area.
8. A waiver of development standards to allow three-story buildings adjacent to an arterial street where a one-story building height is the maximum allowed.
G. The Project is contemplated to be built in four (4) phases (each a “Phase”), with no Affordable Units to be constructed in the first or second Phases, and four (4) Affordable Units to be constructed in each of the third and fourth Phases. Four (4) of the Affordable Units shall contain one (1) bedroom and one and one-half (1.5) bathrooms, each containing approximately nine hundred seventy-two square feet (972 sf), and four
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(4) of the Affordable Units shall contain two (2) bedrooms and two and one-half (2.5) bathrooms, each containing approximately one thousand two hundred eight square feet (1,208 sf). The location and designation of the Affordable Units, which are unit nos. 20 through 27, are depicted on the site plan, which has been approved by the City and is attached hereto as Exhibit “B” (the “Site Plan”).
H. Developer shall identify the Affordable Units in the covenants, conditions, and restrictions for the Project (the “Association CC&Rs”).
I. Developer’s execution and recordation of, and thereafter compliance with, this Agreement is required as a condition to City’s issuance of a certificate of occupancy for any units within the Project, and Developer’s execution and recordation of, and thereafter compliance with, this Agreement satisfies the Project’s Condition of Approval number 108 of Planning Commission Resolution No. 5655, adopted on January 14, 2026 (“PC Resolution No. 5655), and the affordable housing requirements set forth in Section
18.17.010, et seq., Section 18.17.200 et seq., and Section 18.19.010 et seq. of the Yorba Linda Municipal Code. Because this Agreement is required pursuant to the Density Bonus Law, this Agreement shall be and shall remain in a priority lien position to all deeds of trust, and shall not be subordinated to any financing obtained by Developer and encumbering the Property (with the holder of any such financing referred to hereinafter as a “Subordinate Lender”).
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, and for other valuable consideration, the sufficiency of which is hereby acknowledged, City and Developer agree as follows:
1. Definitions.
a. “Affordable Sales Price” shall mean, as to each Affordable Unit, a sales price that would result in an annual Monthly Housing Cost that is not less than twenty-eight percent (28%) of the gross income of the Moderate Income Household and does not exceed the maximum percentage of income that can be devoted to housing cost by Moderate Income Households under California law. As of the date of this Agreement, the Affordable Sales Price for a Moderate Income Household means a purchase price with a reasonable downpayment, and that would result in an annual Monthly Housing Cost that is (a) not less than twenty-eight percent (28%) of the gross income of the Moderate Income Household, and (b) not more than the product of thirty-five percent (35%) times one hundred ten percent (110%) of the Median Income adjusted for family size appropriate for the property, or, for any Moderate Income Household that has a gross income that exceeds one hundred ten percent (110%) of the Median Income adjusted for family size, the annual Monthly Housing Cost may not exceed thirty-five percent (35%) of the gross income of the Moderate Income Household, all as more particularly set forth in Section 50052.5 of the California Health and Safety Code. Pursuant to Section 50052.5 of the California Health and Safety Code, for purposes of calculating the Affordable Sales Price, “adjusted for family size appropriate for the property” shall mean a household of two (2) persons for a one (1) bedroom Affordable Unit, and three (3) persons for a two (2) bedroom Affordable Unit. For purposes of determining an Affordable Sales Price, a
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“reasonable” downpayment is a downpayment that equals five percent (5%) of the sales price for the Affordable Unit. A calculation of Affordable Sales Price, based on the date of this Agreement, is set forth in Exhibit “D” attached hereto and incorporated herein. As indicated in said Exhibit “D”, the Affordable Sales Price will be updated on the first day of each calendar quarter, to reflect changes (if any) in the Median Income, utilities allowances, and mortgage interest rates; provided, however, that the Affordable Sales Price in effect as of the date Developer enters into a purchase and sale contract with a Moderate Income Household shall remain applicable to said purchase and sale contract for a period of ninety (90) days after the execution of the purchase and sale contract. If, at the end of said ninety (90) day period, the escrow under the purchase and sale agreement has not closed, the Sales Price under the purchase and sale agreement shall be updated to reflect the then-current Affordable Sales Price. b. “Affordable Unit” shall have the meaning ascribed in Recital D of this Agreement.
c. “Association” shall have the meaning ascribed in Section 8 of this Agreement.
d. “Association CC&Rs” shall have the meaning ascribed in Section 8 of this Agreement.
e. “Association Property” means real or personal property designated by the Developer, as the “Declarant” under the Association CC&Rs. or the Board of Directors of the Association. as Association Property and therefore made subject to the restrictions on Association Property established in the governing documents. The Association Property in a “Phase” consists of all the real property described as Association Property in the Condominium Plan for the Phase (except for the Units and the Condominium Common Area shown on the Condominium Plan(s)). The Association Property is “common area” as defined in California Civil Code section 4095. f. “Condominium” means an estate in real property as defined in California Civil Code Section 4125. A Condominium consists of an undivided fee-simple ownership interest in the Condominium Common Area in a Phase, together with a separate ownership interest in fee in a “Unit” as described in the recorded Condominium Plans and as defined in California Civil Code Section 4125, and any easements appurtenant thereto.
g. “Condominium Common Area” means the volumes of airspace described in the Condominium Plan for each Phase, which shall be owned by Owners in each Phase of the Project as tenants-in-common. The Condominium Common Area in each Phase of the Project constitutes the “undivided interest-in-common in a portion of the real property,” in accordance with California Civil Code Section 4125. Condominium Common Area is not Association Property. The undivided fee simple interest in the Condominium Common Area in a Phase is appurtenant to each Unit in such Phase and is a fraction having one (1) as its numerator and the number of Units in that Phase as its denominator.
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h. “Condominium Plan” shall mean the Condominium Plan for a Phase to be recorded in accordance with all applicable regulations of the California Department of Real Estate. The Condominium Plan for each Phase shall identify the Association Property, the Condominium Common Area and the Units in such Phase. i. “Developer” shall mean Developer and any successor in interest of Developer to the Property or any portion thereof, including the Association, but excluding any Owner(s).
j. “Median Income” shall mean the Orange County area median income adjusted for family size as established by the United States Department of Housing and Urban Development, and as published periodically by the State of California Department of Housing and Community Development.
k. “Moderate Income Household” shall mean a household whose annual income does not exceed the qualifying limits under California law for “persons and families of moderate income” as defined in California Health and Safety Code section 50093 and as published periodically by the State of California Department of Housing and Community Development.
l. “Monthly Housing Cost” shall include all of the following associated with an Affordable Unit, estimated or known as of the date of the proposed sale of the Affordable Unit: (a) principal and interest payments to be paid in the form of loan proceeds on a thirty (30) year fixed mortgage loan and any loan insurance fees associated therewith; (b) property taxes and assessments; (c) flood insurance, if required by the Owner’s primary mortgage lender or by the Association CC&Rs; (d) fire and casualty insurance covering replacement value of property improvements, unless such insurance is procured by the homeowner association; (e) homeowner association fees; (f) lease payments for solar equipment, if required, unless the amount of such payments are included in the reasonable utility allowance; and (g) a reasonable utility allowance. The Monthly Housing Cost of a purchaser shall be an average of estimated costs for the next twelve (12) months. Notwithstanding anything in this Agreement to the contrary, Developer agrees that until such time as Developer has sold the last condominium unit in the Project, the homeowner association fees charged to each owner of an Affordable Unit shall not exceed Three Hundred Seventy-Five Dollars ($375) per month. m. “Owner” shall mean a Moderate Income Household to whom Developer has conveyed fee title to one of the Affordable Units. n. “Phase” shall mean all of the real property and improvements described and designated as a Phase of the Project in the Association CC&Rs or in a recorded Supplemental Agreement or Notice of Addition to the Association CC&Rs, the Units of which are described in a Final Subdivision Public Report issued by the California Department of Real Estate.
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o. “Proposed Buyer” shall mean a person or family determined to be a Moderate Income Household to whom Developer desires and proposes to Transfer an Affordable Unit.
p. “Sales Price” shall mean all sums paid by a Moderate Income Household to Developer for, or in conjunction with, the acquisition of an Affordable Unit, including the purchase price designated in any purchase agreement, consideration for personal property and all other costs and fees paid by the Moderate Income Household, to or for the benefit of the Developer.
q. “Subordinate Lender” shall have the meaning ascribed in Recital I of this Agreement.
r. “Transfer” shall mean any sale, assignment, or transfer of an interest in an Affordable Unit(excluding any sale, assignment or transfer of Developer’s interest in the Property resulting as a consequence of, or immediately subsequent to, a foreclosure or conveyance in lieu of foreclosure), including, without limitation, a fee simple interest, tenancy in common, joint tenancy, community property, tenancy by the entireties, life estate, or other limited estate, leasehold interest or any rental of the Affordable Unit. s. “Unit” shall mean a separate interest in space as defined in Section 4125(b) of the California Civil Code. Each Unit is a separate freehold estate, as separately shown, numbered and designated in the Condominium Plan for each Phase.
Each Unit includes the residential element and a garage element as depicted on the Condominium Plan for each Phase. The Project is comprised of forty (40) Units.
2. Sale of Affordable Units.
Developer shall sell the Affordable Units to Moderate Income Households at an Affordable Sales Price. Subject to the terms of this Section 2, Developer agrees to commence to market each Affordable Unit at the earliest feasible time, but not later than the completion of construction of said Affordable Unit. Developer shall sell the Affordable Units pursuant to a lottery system, which, through randomized selection, shall assign priority to applicants for the Affordable Units (the “Lottery List”). Prior to implementation of any such lottery system, Developer shall submit its proposed lottery system to City for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed Notwithstanding anything to the contrary in this Agreement, the minimum household size for a Proposed Buyer shall be one (1) person per bedroom, and the maximum household size for a Proposed Buyer shall be two (2) persons per bedroom plus one (1). For example, for a two-bedroom Afrordable Unit, the minimum household size of a Proposed Buyer shall be two (2) persons and the maximum household size for a Proposed Buyer shall be five (5) persons.
During the first fourteen (14) days of Developer’s marketing efforts for the Affordable Units, Developer shall build an interest list of applicants for the Affordable Units from the general public without restrictions. Developer shall conduct the lottery from said interest list following the conclusion of the foregoing fourteen (14) day exclusive marketing
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period. Upon completion of the lottery, the Lottery List will be sorted into two categories, (1) the general public, and (2) those who live and/or work in the City of Yorba Linda.
Developer shall prioritize persons who live and/or work within the City of Yorba Linda(“Yorba Linda Applicants”), subject to any applicable federal, state or local law. The Yorba Linda Applicants on the Lottery List shall be offered an Affordable Unit in the order of their lottery ranking until all Yorba Linda Applicants have received an opportunity to purchase an Affordable Unit. Thereafter, if any Affordable Units remain, Developer may offer the remaining Affordable Units to any other applicants on the Lottery List in order of their position on the Lottery List. Once the Lottery List is exhausted, Developer may sell the remaining Affordable Units to Moderate Income Households at its discretion without the need for a second lottery.
Any of Developer, Developer’s officials and employees, and the immediate family members of Developer’s officials and employees shall be ineligible to purchase an Affordable Unit(the “Developer Eligibility Prohibition”). All of Developer’s advertising and marketing materials pertaining to the Affordable Units, including, without limitation, postings or publications on the Internet, shall contain astatement regarding the Developer Eligibility Prohibition. Escrow for the sale of an Affordable Unit by Developer to a Moderate Income Household shall not close until after issuance of a certificate of occupancy to be issued by the City of Yorba Lindabuilding department for such Affordable Unitas well as issuance of a Final Subdivision Public Report by the California Department of Real Estate. As used herein, the term “immediate family member” shall mean and include a parent or step-parent, grandparent or step-grandparent, sibling or step-sibling, and child or step-child.
3. Restrictions on Transfer by Sale of Any Affordable Unit. a. General. Upon Developer’s sale of all eight (8) Affordable Units in accordance with the terms of this Agreement, Developer shall have no further obligations or liability under this Agreement, or any responsibility with respect to the Affordable Units, except as expressly set forth in Section 4, subdivision (e), and Section 10 of this Agreement.
b. Determination of Sales Price.
DEVELOPER UNDERSTANDS THAT THE DETERMINATION OF THE SALES
PRICE CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING
INTO CONSIDERATION INTEREST RATES, PROPERTY TAXES AND OTHER
FACTORS THAT CANNOT BE ACCURATELY PREDICTED AND THAT THE SALES
PRICE PERMITTED HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE
OF THE PROPERTY AND MAY NOT INCREASE OR DECREASE IN THE SAME
MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS RESTRICTION. DEVELOPER FURTHER ACKNOWLEDGES THAT IN SETTING
THE SALES PRICE, THE PRIMARY OBJECTIVE OF CITY AND THIS AGREEMENT IS
TO PROVIDE HOUSING TO QUALIFIED HOUSEHOLDSAT AN AFFORDABLE SALES PRICE. THE SALES PRICE MAY BE LESS THAN OTHER SIMILAR PROPERTIES WHICH HAVE NO RESTRICTIONS.
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Developer’s Initials
c. Transfer of an Affordable Unit.
Developer may transfer an Affordable Unit only in strict accordance with the provisions of this Agreement. Specifically, Developer may only transfer an Affordable Unit to a Moderate Income Household. Any such transfer may be made only if (i) the sales price for the Affordable Unit does not exceed an Affordable Sales Price for said buyer; and (ii) the Transfer has previously been approved in writing by City, which approval shall not be unreasonably withheld, conditioned or delayed, and which approval shall be evidenced by City’s execution of the “Request for Verification of Proposed Buyer” (as defined in Section 4a below) for said buyer.
In order to comply with this Subsection 3c, Developer must apply the Affordable Sales Price for the Proposed Buyer of the Affordable Unit in accordance with the definitions set forth in Section 1 of this Agreement. City housing staff will provide Developer with the then current Affordable Sales Prices on the first day of each calendar quarter until such time as all of the Affordable Units have been sold. City shall have the right to review and approve, at City’s election, which approval shall not be unreasonably withheld, conditioned or delayed, the form of the purchase and sale agreement proposed to be used by Developer for the sale of the Affordable Units prior to execution thereof by a Proposed Buyer; provided, however, that such right to approve shall be limited to conformance of the purchase and sale agreement with the terms of this Agreement.
4. Process to Complete Transfer by Sale of Condominiums.
Not less than four (4) weeks prior to Developer’s Transfer by sale of an Affordable Unit, Developer shall do all of the following:
a. Notice to City: Developer shall send, or shall cause the Proposed Buyer’s mortgage lender to send, to City, at 4845 Casa Loma, Yorba Linda, California 92886, the form attached hereto and incorporated herein as Exhibit “C” (“Request for Verification of Proposed Buyer”) fully completed and executed by each of Developer, the Proposed Buyer, and the Proposed Buyer’s mortgage lender (the “Mortgage Lender”), accompanied by all documents and materials received by Developer and/or the Mortgage Lender, and necessary in order for Developer, the Mortgage Lender and City to make a determination that the Proposed Buyer is a Moderate Income Household and that the Sales Price is an Affordable Sales Price for the Proposed Buyer, as required pursuant to Sections 4b and 4c below (collectively, the “Supporting Eligibility Documentation”). b. Qualification of Proposed Buyer. No Transfer shall occur unless and until determination is made based on the Request for Verification of Proposed Buyer and Supporting Eligibility Documentation (collectively, the “Verification and Supporting Documentation”) that the Proposed Buyer is a Moderate Income Household who intends to occupy the Affordable Unitas his/her principal residence. Each Request for Verification of Proposed Buyer shall include a statement by the Proposed Buyer certifying its intent with regard to the occupancy of the Affordable Unit and as to the truth and accuracy of all
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of the Verification and Supporting Documentation, including, without limitation, all information supplied as to the Gross Income (calculated as set forth in 25 Cal. Code of Regs., Section 6914) of the Proposed Buyer. Each of Developer and the Mortgage Lender shall certify, pursuant to the Request for Verification of Proposed Buyer the information provided in the Verification and Supporting Documentation. Each of Developer and the Mortgage Lender shall be entitled to rely on the Verification and Supporting Documentation in making the determination required by this subsection 4b unless Developer and/or the Mortgage Lender (as applicable) has knowledge of, or a reasonable basis for belief as to, the inaccuracy or falsehood of any of information in the Verification and Supporting Documentation (the “Review Standard”). c. Affordable UnitSales Price. The Sales Price for the Affordable Unit shall not exceed an Affordable Sales Price for the proposed Buyer. In determining the Affordable Sales Price, the family size of the Proposed Buyer shall be deemed to be two (2) persons in the case of a one (1) bedroom unit, and three (3) persons in the case of a two (2) bedroom unit.
d. Certificates from Developer and Proposed Buyer; Disclosure. Each Request for Verification of Proposed Buyer shall include an “Owner’s Certificate” that, based on the information included in the Verification and Supporting Documentation but subject to the Review Standard, (i) Developer has made the affirmative determination required by Section 4b above that the Proposed Buyer is a Moderate Income Household, and (ii) the Sales Price is an Affordable Sales Price as required by Section 4c above.
Within thirty (30) days after City’s receipt of the Verification and Supporting Documentation, City shall approve, disapprove, or conditionally approve the Proposed Buyer’s eligibility to purchase an Affordable Unit as a Moderate Income Household who intends to occupy the Affordable Unit as his/her principal residence, which approval shall not be unreasonably withheld, conditioned, or delayed. City’s approval shall be made by City’s execution of the Request for Verification of Proposed Buyer for said buyer. Further, Developer and Proposed Buyer each shall certify in writing, on the Request for Verification of Proposed Buyer, that the Transfer shall be closed in accordance with, and only with, the terms of a purchase and sale contract, the general form of which has been submitted to and approved by City before execution of this Agreement, and the salient terms of which have been provided to City for review and approval (all of which review and approval by City was or is (as applicable) limited to a determination by City that the purchase and sale contract and salient terms thereof are in conformance with this Agreement) and that all consideration delivered by the Proposed Buyer to Developer has been fully disclosed to City. Notwithstanding anything to the contrary in this Section 4, Developer shall have the right, but shall not be obligated, to seek a preliminary determination from City regarding a Proposed Buyer and a proposed Sales Price (a “Preliminary Determination”) prior to compiling and submitting to City all of the Verification and Supporting Documentation.
e. Failure to Comply. In the event a Transfer is made in violation of the terms of this Agreement or false or misleading statements are made in any documents or certificate submitted to City for its approval of the Transfer, City shall be entitled to all available remedies in law or equity, including, without limitation, the right to file an action
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at law or in equity against Developer and/or the Proposed Buyer (as applicable) to seek to enforce the terms of this Agreement; provided, however, that City shall only have the right to file an action against Developer if City has determined or has a reasonable belief that Developer violated the terms of this Agreement. Further, in the event Developer fails to comply with Sections 4a, 4b, 4c, or 4d above, as determined by a court of competent jurisdiction, any costs, liabilities or obligations incurred by Developer and its Proposed Buyer for the return of any monies paid or received or for any costs and legal expenses, shall be borne jointly and severally by Developer and its Proposed Buyer and such parties shall hold City harmless and reimburse City’s expenses, costs, and reasonablelegal fees for any action City takes in enforcing the terms of this Section 4e. f. Qualification by City Housing Consultant. Developer agrees that City may retain an affordable housing consultant (the “City Consultant”)to assist in the review and qualification of Developer’s proposed buyers, including any Preliminary Determinations requested by Developer. With respect to the foregoing, within five (5) days after the date of this Agreement, Developer shall deposit Fifteen Thousand Dollars ($15,000) (the “Deposit Funds”) with City to cover all costs charged by the City Consultant to qualify said initial buyers. Within forty-five (45) days after the date Developer has sold all Affordable Units to Moderate Income Households, as verified by the City Consultant, City shall return all unexpended Deposit Funds to Developer. Notwithstanding any of the foregoing, in the event that at any time prior to the City Consultant’s qualification of Affordable Units for all of the Moderate Income Households pursuant to this paragraph the outstanding balance of the Deposit Funds held by City drops below Five Thousand Dollars ($5,000), Developer shall deposit an additional Five Thousand Dollars ($5,000) with City.
g. City Affordable Housing Documents; Partial Termination. Developer shall require each Proposed Buyer to execute, with signatures acknowledged (as applicable), (i) an Affordable Housing Agreement with Resale Restrictions setting forth the affordable housing, owner occupancy, and resale requirements with respect to the Affordable Unit (the “Moderate Income Household AHA”), (ii) a Deed of Trust securing the obligations of the Moderate Income Household under the Moderate Income Household AHA, including certain payment and reimbursement obligations triggered by default of the Owner under the Moderate Income HouseholdAHA (the “Deed of Trust”), (iii) an Affordable Housing Disclosure Statement (the “Disclosure”), and (iv) a Subordination Agreement pursuant to which (a) the deed of trust securing the Owner’s primary mortgage (the “Primary Mortgage Deed of Trust”) is subordinated to the Moderate Income Household AHA, and (b) the Deed of Trust is subordinated to the Primary Mortgage Deed of Trust (the “Subordination Agreement”). The forms of the Moderate Income Household AHA, Deed of Trust, Disclosure, and Subordination Agreement shall be provided to Developer. Each of City and Developer acknowledges and agrees that Condition of Approval No. 108 in PC Resolution No. 5655 inadvertently contains two (2) incorrect references to the required term for the Moderate Income Household AHA (i.e., Condition of Approval No. 108 references both 30 years and 55 years), and notwithstanding those inaccuracies the requiredterm for the Moderate Income Household AHA is forty-five (45) years, as stated in each of Recital C and Recital D of this Agreement, and as will be set forth in each Moderate Income Household AHA. On the
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thirtieth (30th) day following the close of any transfer of an Affordable Unit to a Moderate Income Household, provided (1) the documents described in clauses (i), (ii), (iii), and (iv) of this Section 4g have been duly executed, with signatures acknowledged (as applicable), and (with the exception of the Disclosure) recorded in the Official Records of Orange County, and (2) City has not notified Developer, in writing that City has determined the sale was not made in compliance with the terms of this Agreement, Developer shall be automatically released from this Agreement with respect to the sold Affordable Unit. If requested, in writing, by Developer, City agrees to execute and record a release and partial termination which terminates this Agreement with respect to any such sold and released Affordable Unit(s).
h. Delivery of Documents. Upon the close of the proposed Transfer, Developer shall provide City with a copy of the recorded documents, including a copy of the recorded Moderate Income Household AHA, Deed of Trust, and Subordination Agreement, a copy of the final sales contract, settlement statement, escrow instructions, Disclosure, all certificates required by this Section 4, and any other documents which City may reasonably request.
5. Nondiscrimination Covenants.
In addition to any other nondiscrimination provisions applicable to the Property under federal, state or local law, Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person, or group of persons on any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall Developer, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, or any part thereof. The foregoing covenants shall run with the land.
6. Maintenance of Property.
Developer shall maintain the Property and all improvements thereon, including, without limitation, all buildings, signage, lighting, landscaping, and irrigation of landscaping, in good condition, free of debris, waste and graffiti, and in compliance with all applicable provisions of the Yorba Linda Municipal Code.
After the Association Property has been transferred to the Association in accordance with the terms of the Association CC&Rs, the Association shall be responsible for the foregoing maintenance with respect to the Association Property.
7. Amenities and Location.
The Affordable Units shall be similar to the base plan of the Project market rate units in terms of design, appearance, materials, finished quality and interior amenities. In
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addition to the eight(8) Affordable Units described in Recitals D and G above, the Project includes thirty-two (32) market rate units. The market rate units consist of the following:
fourteen (14) four (4) bedroom and three and a half (3.5) bathroom units, each containing approximately one thousand nine hundred seven square feet (1,907 sf) and eighteen (18) three bedroom and two and a half (2.5) bathroom units, each containing approximately two thousand ten square feet (2,010 sf). The Affordable Units consist of the following: four (4) one (1) bedroom and one and a half (1.5) bathroom units, each containing, approximately nine hundred seventy-two square feet (972 sf); and four (4) two (2) bedroom and two and a half (2.5) bathroom units, each containing approximately one thousand two hundred eight square feet (1,208 sf). Issuance of a certificate of occupancy by the City shall constitute final approval that an Affordable Unit complies with this Section 7 and Condition of Approval number 108 of PC Resolution No. 5655.
8. Conveyance of Association Property to Association.
Prior to the first close of escrow of one of the Affordable Units, Developer shall (i) establish a homeowners association (the “Association”) for the purpose of maintaining the Association Property; (ii) prepare and record covenants, conditions, and restrictions setting forth the respective maintenance obligations of the Owners and the Association (the “Association CC&Rs”); and (iii) convey the Association Property to the Association on a Phase by Phase basis to enable the Association to perform the maintenance obligations hereunder, and as set forth in the Association CC&Rs. The Association CC&Rs shall expressly state that until such time as Developer conveys the Association Property to the Association, Developer shall be responsible for maintaining the Association Property.
9. Property Taxes.
Developer shall not seek exemption from the payment of property taxes and assessments for any portion of the Property or take any other action that would result in any portion of the Property being exempt from the imposition of property taxes and assessments.
10. Indemnification.
Developer shall defend, indemnify and hold harmless City and City’s officers, officials, agents, employees, representatives, and consultants (individually, an “Indemnified Party” and collectively, the “Indemnified Parties”) from and against any actual loss, damage, costs, expenses, liability, claim, or judgment relating in any manner to Developer’s performance under this Agreement, except to the extent caused by the active negligence or willful misconduct of an Indemnified Party.
11. Insurance.
Developer shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, the following policies of insurance:
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Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis in an amount not less than a combined single limit of Three Million Dollars ($3,000,000) or its equivalent.
Worker’s Compensation Insurance. A policy of worker’s compensation insurance in such amount as will fully comply with the laws of the State of California.
Builder’s Risk. Builder’s risk coverage written on a completed value basis in an amount equal to the full replacement cost of the improvements with coverage available on the “all risk” form of policy, and may be on a reporting form, including coverage against collapse, fire, and water damage, with such insurance to be in such amounts and form and written by such companies as shall be approved by City. City agrees to accept a builder’s risk insurance policy from the general contractor for the Project in conformance with the requirements set forth herein.
Automobile Liability Insurance. Automobile liability insurance (bodily injury and property damage liability) which coverage shall include owned, hired, and non-owned automobiles, with limits of liability of not less than One Million Dollars ($1,000,000.00) combined single limit per accident for bodily injury and property damage combined.
All of the above policies of insurance shall be primary insurance and except for the Worker’s Compensation Insurance shall name the Indemnified Parties as additional insureds. Said policies shall be satisfactory only if issued by companies qualified to do business in California and rated A:VII or better in the most recent edition of the Best Rating Guide. The insurer shall waive all rights of subrogation and contribution it may have against the Indemnified Parties and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to City. In the event any of said policies of insurance are canceled, Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 11 to the City Manager of City. The foregoing obligations shall remain in effect until Developer has sold each Affordable Unit to a Moderate Income Household.
The Association shall maintain policies of commercial general liability and fire and casualty insurance in the limits set forth in California Civil Code sections 5800 and 5805 and as may be required by the California Department of Real Estate.
In no event shall the limits of any policy be considered as limiting the liability of Developer hereunder or limiting the indemnity obligation of Developer set forth in Section 10 of this Agreement.
12. Repair of Damage.
If any of the Affordable Units and/or any improvements on the Property necessary for continued occupancy of the Affordable Units (collectively, the “Required Units & Improvements”) shall be totally or partially destroyed or rendered wholly or partly uninhabitable by fire or other casualty, Developer (or the Association if Developer has transferred the damaged portion of the Required Units & Improvements to the
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Association), shall promptly proceed to obtain insurance proceeds and take all steps necessary to begin reconstruction and, immediately upon receipt of insurance proceeds, to promptly and diligently commence the repair or replacement of the Required Units & Improvements to substantially the same condition as the Required Units & Improvements are required to be maintained under the terms of this Agreement, whether or not the insurance proceeds are sufficient to cover the actual cost of repair, replacement, or restoration, and Developer (or the Association if Developer has transferred the damaged portion of the Required Units & Improvements to the Association), shall complete the same as soon as possible thereafter so that the Required Units & Improvements or damaged portion thereof can continue to be developed and occupied as affordable housing units in accordance with this Agreement. In no event shall the repair, replacement, or restoration period exceed twelve (12) months from the date or the destruction unless the City Manager of City, in his or her sole and absolute discretion, approves a longer period of time.
13. Defaults and Remedies.
a. Defaults. Failure or delay by any party to perform any term or provision of this Agreement which is not cured within thirty (30) days after receipt of notice from the other party specifying the default (or ten (10) days with respect to defaults regarding inadequate maintenance of the Property, including, without limitation, graffiti removal and landscaping/landscaping irrigation repairs) constitutes a default under this Agreement; provided, however, if such default is of the nature requiring more than thirty (30) days to cure, the defaulting party shall avoid default hereunder by commencing to cure within such thirty (30) day period, and thereafter diligently pursuing such cure to completion. Except as required to protect against further damages, the injured party may not institute proceedings against the party in default until thirty (30) days after giving such notice. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default.
b. Institution of Legal Actions. In addition to any other rights or remedies, any party may institute legal action to cure, correct, or remedy any default, to recover damages for any default, or to obtain any other legal or equitable remedy consistent with the purposes of this Agreement; provided, however, that notwithstanding anything in the foregoing to the contrary, (i) in no event shall Developer be entitled to obtain monetary damages of any kind from City, including but not limited to damages for economic loss, lost profits, or any other consequential, punitive or special damages of any kind, (ii) in no event shall City be entitled to obtain monetary damages of any kind from Developer, including but not limited to damages for economic loss, lost profits, or any other consequential, punitive or special damages of any kind, and (iii) in no event shall any partner, member, shareholder, board member, director, commissioner, officer, employee, official or agent of Developer be personally liable to City, including for any amount that may become due under this Agreement. Notwithstanding clause (ii) and (iii) above, nothing contained herein is intended to relieve Developer and, if Developer is a partnership, limited liability company, or corporation, any general partner, member, or shareholder of Developer of liability for damages caused to City as a result of (i) fraud or willful misrepresentation. Such legal actions must be instituted and maintained in the
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Superior Court of the County of Orange, State of California, or in any other appropriate court in that county.
c. Rights and Remedies are Cumulative. The rights and remedies of the parties are cumulative, and the exercise by any party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by any other party.
14. Covenants Do Not Impair Liens.
This Agreement shall not prevent or limit Developer, in any manner, at its sole discretion, from encumbering the portion of the Property owned by it, or any portion thereof or any improvement thereon, by any mortgage, deed of trust, or other security device securing financing with respect to such portion of the Property. The City acknowledges that the lenders providing such financing may request certain interpretations and/or modifications and agrees, upon request from time to time, to meet with the Developer and the representatives of such lenders to negotiate in good faith any such request for interpretation or modification. Subject to compliance with applicable laws, the City will not unreasonably withhold its consent to any such requested interpretation or modification provided that such interpretation or modification is consistent with the intent and purposes of this Agreement and does not have an adverse impact on the City's rights or obligations hereunder. The Parties hereto understand and agree that, notwithstanding any provisions contained in this Agreement, the restrictions and covenants hereunder are not intended by the Parties hereto to grant any right of foreclosure, under the laws of the jurisdiction where the Project is located, to any Party hereto upon a default of any provision herein, rather they are intended by the Parties hereto to constitute a restrictive covenant that is filed of record prior in time to any instrument or agreement granting a security interest in the Project or Property, and that, notwithstanding a foreclosure or transfer of title pursuant to any other instrument or agreement, the restrictive covenants and provisions hereunder shall remain in full force and effect.
No violation or breach of covenants, conditions, restrictions, provisions, or limitations contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security instrument.
15. Conflict with Other Laws; Severability.
In the event that any provision of this Agreement is found to be contrary to applicable law, then such provisions shall be deemed modified in a manner which is consistent with the goals and intent of this Agreement to provide housing to Moderate Income Households at an Affordable Sales Price.
Every provision of this Agreement is intended to be severable. In the event any term or provision of this Agreement is declared by a court of competent jurisdiction to be unlawful, invalid or unenforceable for any reason, such determination shall not affect the
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balance of the terms and provisions of this Agreement, which terms and provisions shall remain binding and enforceable.
16. Covenants for Benefit of City.
This Agreement is designed to create equitable servitudes and covenants running with the Property, in accordance with the provisions of Civil Code Section 1468. The covenants, conditions, restrictions, reservations, equitable servitudes, liens and charges set forth herein shall run with the Property and shall be binding upon all persons having any right, title or interest in the Property, or any part thereof, their heirs, successive owners and assigns; shall inure to the benefit of City and its successors and assigns, shall be binding upon Developer, its successors and assigns and successors in interest; and may be enforced by City and its successors and assigns. Developer hereby declares its understanding and intent that the burden of the covenants set forth herein touch and concern the land and that Developer’s interest in the Property is rendered less valuable thereby. Developer hereby further declares its understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Property by Moderate Income Households, and by furthering the public purposes of City.
In amplification and not in restriction of the provisions set forth hereinabove, it is intended and agreed that City is deemed a beneficiary of the agreements and covenants provided herein both for and in its own right and also for the purposes of protecting the interests of the community. All covenants without regard to technical classification or designation shall be binding for the benefit of City and such covenants shall run in favor of City for the entire period during which such covenants shall be in force and effect, without regard to whether City is or remains an owner of any land or interest therein to which such covenants relate. However, all such covenants and restrictions shall be deemed to run in favor of all real property owned by City which real property shall be deemed the benefited property of such covenants. City shall have the right, in the event of any breach of any such agreement or covenant, to exercise all of the rights and remedies, and to maintain any action at law or suit in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant.
17. Partial Release of Agreement.
Upon written request from Developer and Developer’s delivery to City of a legal description of the Affordable Units, City shall terminate and release the encumbrance of this Agreement as to the Property, excluding the Affordable Units (the “Partial Release”).
The City shall promptly execute, acknowledge and deliver for recordation such instrument(s) as reasonably necessary to cause the Partial Release, which may include replacing Exhibit “A” with a legal description of the Affordable Units, which shall remain subject to this Agreement until released in accordance with the terms of Section 4g above.
18. Full Release and Termination. Unless City has notified Developer, in writing and pursuant to the terms of Section 4g above, that City has determined a sale of an Affordable Unit was not made in compliance with the terms of this Agreement, then on
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the thirtieth (30th) day following the close of escrow for the last Affordable Unit to a Moderate Income Household, this Agreement shall automatically terminate and be of no further force and effect. If requested by Developer, City shall execute and record a termination and release of this Agreement.
19. Notices, Demands and Communications.
Written notices, demands and communications between Developer and City shall be sufficiently given if (i) delivered by hand, (ii) delivered by reputable same-day or overnight courier service that provides a receipt showing date and time delivery, or (iii) dispatched by registered or certified mail, postage prepaid, return receipt requested, as follows:
Developer: Olson Urban VI – Yorba Linda 2, LLC
c/o Olson Company
3010 Old Ranch Parkway, Suite 100
Seal Beach, CA 90740
Attn: Steve Armanino
copy to: Jackson Tidus
2030 Main Street, Suite 1500
Irvine, CA 92614
Attn: Sarah Kleinberg, Esq
City:
City of Yorba Linda
4845 Casa Loma
Yorba Linda, CA 92886
Attn: City Manager
copy to: Rutan & Tucker, LLP
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Attn: Todd Litfin, Esq.
Such addresses for notice may be changed from time to time upon notice to the other party.
Any written notice, demand or communication shall be deemed received upon receipt if delivered by hand or by same-day or overnight courier, and shall be deemed received on the third (3rd) calendar day from the date it is postmarked if delivered by registered or certified mail.
20. Assignment.
a. Assignment by City. City shall not assign all or anypart of its interest in this Agreement to a third party without obtaining the prior written consent of Developer, which consent shall not be unreasonably withheld, conditioned, or delayed.
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b. Assignment by Developer. Developer shall not, whether voluntarily, involuntarily, or by operation of law, assign all or any part of its interest in this Agreement to a third party without obtaining the prior written consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed. If City approves an assignment, the assignment shall not be effective unless and until the proposed assignee executes and delivers to City an agreement in form satisfactory to City’s legal counsel assuming the obligations of the assignor which have been assigned. Nothing in this Section 20b is intended to restrict Developer from transferring, in accordance with this Agreement,(i) an Affordable Unit to a Moderate Income Household, and (ii) the Association Property in the Project to the Association. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, any sale, assignment or transfer of Developer’s interest in the Property resulting as a consequence of, or immediately subsequent to, a foreclosure or conveyance in lieu of foreclosure shall not be deemed an assignment, sale, gift, encumbrance, hypothecation or transfer of Developer’s rights or obligations under this Agreement, and as such, any such sale or transfer shall not be subject to City’s prior written consent.
21. Attorneys’ Fees and Costs.
If a party to this Agreement commences an action against the other party to this Agreement arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees, expert witness fees, costs of investigation, and costs of suit from the losing party to the extent determined by a court of competent jurisdiction in a final non-appealable decision.
22. Entire Agreement, Waivers, and Amendments.
This Agreement contains the entire agreement between the parties relating to the subject matter hereof, and supersedes all negotiations and previous agreements between the parties with respect to all or part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged. A waiver of the breach of the covenants, conditions or obligations under this Agreement by any party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement. Any amendment or modification to this Agreement must be in writing and executed by the appropriate authorities of City and Developer.
23. Interpretation; Governing Law.
This Agreement shall be construed according to its fair meaning and as if prepared by both of the parties hereto. This Agreement shall be construed in accordance with the internal laws of the State of California.
24. City Approvals and Actions.
City shall maintain authority of this Agreement and the authority to implement this Agreement through the City Manager of City (or his or her duly authorized representative).
The City Manager shall have the authority to make approvals, issue interpretations,
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execute documents, waive provisions, and/or enter into certain amendments of this Agreement on behalf of City so long as such actions do not materially or substantially change the basic business terms hereof, change the uses or development permitted on the Property, or add to the costs incurred or to be incurred by City. All other material and/or substantive interpretations, waivers, or amendments shall require the consideration, action and written consent of the City Council.
25. Amendments.
All amendments to this Agreement must be in writing, signed by Developer and City (or their successors-in-interest) and recorded in the Official Records of Orange County, California.
26. Third Party Beneficiaries.
The performance of City’s and Developer’s respective obligations under this Agreement is not intended to benefit any party other than City or Developer. To the extent legally permissible, no person or entity not a signatory to this Agreement shall have any rights or causes of action against any Party to this Agreement as a result of that party’s performance or non-performance under this Agreement, or for the enforcement of any provisions of this Agreement.
27. Counterparts.
This Agreement may be executed in counterparts each of which, when both Developer and City have signed this Agreement, shall be deemed an original and shall constitute one and same instrument.
28. Subordinate Lender Cure Rights.
Provided a Subordinate Lender has provided City with written notice of its address for notice purposes, City shall notify such Subordinate Lender in writing concurrently with any notice given to Developer of any default by Developer under this Agreement, and City agrees that any such Subordinate Lender has the right (but not the obligation) to cure any breach or default specified in such notice within the time periods set forth below, and City will not declare a default of this Agreement, as to such Subordinate Lender, if such Subordinate Lender cures such default within thirty (30) days from and after the expiration of the time period provided in the this Agreement for the cure thereof by Developer; provided, however, that if such default cannot with diligence be cured by such Subordinate Lender within such thirty (30) day period, the commencement of action by such Subordinate Lender within such thirty (30) day period to remedy the same shall be deemed sufficient so long as such Subordinate Lender pursues such cure with diligence to completion; provided, however, further, if such Subordinate Lender is legally restrained from commencing such exercise (e.g., in the context of a stay of bankruptcy of Developer), then such periods shall be extended while such Subordinate Lender is pursuing relief from the same. A Subordinate Lender may cause a Request for Notice to be recorded on the Property subsequent to the recordation of the first lien deed of trust or mortgage requesting a statutory notice of default as set forth in the California Civil Code
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Section 29246. Such notice shall be sent to: City of Yorba Linda, 4845 Casa Loma Yorba Linda, CA 92886, Attention: City Manager.
[end – signature page follows]
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IN WITNESS WHEREOF, City and Developer have caused this instrument to be executed on their behalf of their respective officers hereunto duly authorized as of the date set forth above.
Executed at Yorba Linda, California
this day of ,
2026
“City”
CITY OF YORBA LINDA,
a California municipal corporation
By:
Peter Grant, City Manager
Attest:
_______________________________
Marcia Brown, City Clerk
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
Todd O. Litfin, City Attorney
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Executed at
, California
this day of
, 2026
“Developer”
OLSON URBAN VI – YORBA LINDA 2, LLC
a Delaware limited liability company
By: OLSON URBAN COMMUNITIES VI, LLC
a Delaware limited liability company
Sole Member
By: OLSON URBAN VENTURES VI, LLC
a Delaware limited liability company
Sole Member
By: OLSON URBAN HOUSING, LLC
a Delaware limited liability
company
Operating Member
By: IN TOWN LIVING, INC.
a Delaware corporation
Managing Member
By:_______________
Name: ____________
Title:______________
By:_______________
Name: ____________
Title:______________
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Orange )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Orange )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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LIENHOLDER CONSENT AND
SUBORDINATION OF LIEN
The undersigned beneficiary (“Subordinate Lender”) under that certain Construction Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing (as amended, amended and restated, restated, supplemented or otherwise modified from time, the “Deed of Trust”) recorded in the Official Records of Orange County, California (the “Official Records”) on or about the same date hereof (the “Deed of Trust”), hereby consents to the recordation of the Affordable Housing and Density Bonus Agreement and Declaration of Covenants, Conditions, and Restrictions (the “Agreement”) to which this instrument is attached and hereby subordinates. In addition, Subordinate Lender hereby provides notice that any notice to Subordinate Lender under the Agreement should be provided to the address below:
Wells Fargo Bank, National Association
2030 Main Street, Floor 08
Irvine, CA, 92414-7255
MAC E2231-080
Attention: Cinthya Martinez Hanselman
Loan No: 79533
[Signature on following page]
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Executed as of this _____ day of ______________, 2026.
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent
By:
Name:
Its: ______
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF )
On _______________ before me,
____________________________________________, Notary Public, personally appeared ____________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________ (Seal)
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22554356.7 06/25/25 EXHIBIT “A”
EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
Real Property in the City of Yorba Linda, County of Orange, State of California, described as follows:
[Parcel 1 of Parcel Map No. 2024-159]
To be inserted before recordation
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22554356.7 06/25/25 EXHIBIT “B”
EXHIBIT “B”
SITE PLAN
[Attached]
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-1- Page 729 of 1224
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22554356.7 06/25/25 EXHIBIT “C”
EXHIBIT “C”
REQUEST FOR VERIFICATION OF PROPOSED BUYER
[Attached]
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REQUEST FOR VERIFICATION OF PROPOSED BUYER
THIS FORM MUST BE DELIVERED TO THE CITY BEFORE PROCEEDING WITH ANY TRANSFER OF AN AFFORDABLE UNIT.
Date: _________________
City of Yorba Linda
4845 Casa Loma
Yorba Linda, CA 92886
Attn: Project Manager
Re: Request for Verification of Proposed Buyer
To Whom It May Concern:
Olson Urban VI – Yorba Linda 2, LLC, a Delaware limited liability company (“Project Owner”) desires to transfer the Affordable Unit located at _________________________________ (the “Property”) and by this letter is requesting the City to verify that the proposed buyer is a “Moderate Income Household” (as that term is defined in the Affordable Housing and Density Bonus Agreement and Declaration of Covenants, Conditions, and Restrictions, Including Resale Restrictions).
1. The Proposed Buyer is:
Name: _______________________________________________________ _______________________________________________________ _______________________________________________________ Current
Address:
_______________________________________________________ _______________________________________________________ _______________________________________________________ Telephone
Number:
_______________________________________________________
2. The terms of the proposed transfer are
(a) Sales price of $___________. This sales price is based on the lesser of _____(i) Fair market value; or
_____(ii) The maximum price which results in an Affordable Sales Price.
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IN ORDER TO ANSWER QUESTION 2(b) YOU MUST CALCULATE THE
PROPOSED SALES PRICE BASED ON THE HOUSING COST LIMITATIONS SET FORTH IN CALIFORNIA HEALTH & SAFETY CODE SECTION 50052.5, TAKING INTO
CONSIDERATION ALL ITEMS LISTED IN THE DEFINITION OF MONTHLY HOUSING COST.
(b) Price of any personal property being sold by Project Owner to the proposed buyer: $______________. (If none, so state.)
(c) The price of $____________ to be paid by the proposed buyer for any services of Project Owner. (If none, so state).
(d) All other amounts of money or other consideration, if any, concerning the Property or any other matter to be paid by the proposed buyer to Project Owner:
$__________. (If none, so state.)
(e) Sources of payment of sales price:
Sales price $___________
Cash down payment $___________
1st loan $___________
Total $___________
(f) The repayment terms for the 1st loan obtained by the proposed buyer to purchase the Property is as follows:
Monthly payments: $_____________
Taxes and assessments (1/12 of yearly taxes and
assessments):
$_____________
Insurance (1/12 of yearly premium): $______________
Homeowner’s dues: $______________
Total: $_______________
Interest rate ___________
Due date:
Points and fees: ____________
Lender:
_____________________________________________________________________
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Lender’s address: _______________________________________________________
3. The proposed buyer represents, warrants and covenants the following:
(a) The Property will be the principal residence of the proposed transferee, and will not be rented or leased.
(b) The combined maximum annual income for all household members of the proposed buyer is $___________. (This figure must include all sources of income.) (c) The proposed buyer will deliver to the City a signed financial statement, and supporting documentation, in a form acceptable to the City.
4. The proposed buyer’s household consists of the following persons who will reside in the Property:
Adults (18 or over) - [name of each]:
____________________________
____________________________
____________________________
Minors (under 18) [name of each]:
____________________________
____________________________
____________________________
5. In the event a transfer is made in violation of the terms of the Affordable Housing and Density Bonus Agreement and Declaration of Covenants, Conditions, and Restrictions (“Agreement”), or false or misleading statements are made in any documents or certificate submitted to City for its approval of the transfer, City shall have the right to file an action at law or in equity against the proposed buyer to seek to enforce the terms of the Agreement and/or force a sale of the Property and transfer of the Property to a Moderate Income Household.
A true and correct copy of the purchase and sale or other agreement between Project Owner and the proposed buyer is attached hereto. The transfer, if completed, shall be closed in accordance with the terms of the attached agreement. The attached agreement discloses all consideration to be delivered by the proposed buyer to Project Owner.
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I declare under penalty of perjury under the laws of the State of California that, as to the actual knowledge of Olson Urban VI – Yorba Linda 2, LLC, after diligentreview of all documents and other materials submitted to Olson Urban VI – Yorba Linda 2, LLC, but subject to the “Review Standard” (as defined in the Agreement), the foregoing is true and correct.
Executed at
, California
this day of
, 2026
“Developer”
OLSON URBAN VI – YORBA LINDA 2, LLC
a Delaware limited liability company
By: OLSON URBAN COMMUNITIES VI, LLC
a Delaware limited liability company
Sole Member
By: OLSON URBAN VENTURES VI, LLC
a Delaware limited liability company
Sole Member
By: OLSON URBAN HOUSING, LLC
a Delaware limited liability
company
Operating Member
By: IN TOWN LIVING, INC.
a Delaware corporation
Managing Member
By:_______________
Name: ____________
Title:______________
By:_______________
Name: ____________
Title:______________
I declare under penalty of perjury under the laws of the State of California that, as to the actual knowledge of the undersigned, after diligent review of all documents and other materials submitted to the undersigned, but subject to the “Review Standard” (as defined in the Agreement), the foregoing is true and correct.
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By: __________________________________
Printed Name: __________________________
Title: _________________________________
Lender Name: __________________________
_____________________________________
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I declare under penalty of perjury under the laws of the State of California that the foregoing, and all documents and materials submitted to City and Developer in order to make a determination that I am a Moderate Income Household, are true and correct, and that I intend to occupy the Affordable Unit as my principal place of residence.
PROPOSED BUYER:
________________________________
Date
________________________________
signature
________________________________
signature
________________________________
print name
________________________________
print name
____________________________________________________________________ street address telephone
____________________________________________________________________ city state zip code
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Project Owner/Mortgage Lender Certifications
Based on the Proposed Buyer’s Certificate above, and all documents attached hereto, Project Owner hereby certifies that, to the actual knowledge of Project Owner, after diligentreview of all documents and other materials submitted to Project Owner by the Proposed Buyer, but subject to the “Review Standard” (as defined in the Agreement):
(1) Proposed Buyer is a Moderate Income Household; and
(2) The purchase price to be paid by the Proposed Buyer is an Affordable Sales Price.
[Capitalized terms used above are defined in the Agreement to which this certificate is attached.]
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Executed at
, California
this day of
, 2026
“Developer”
OLSON URBAN VI – YORBA LINDA 2, LLC
a Delaware limited liability company
By: OLSON URBAN COMMUNITIES VI, LLC
a Delaware limited liability company
Sole Member
By: OLSON URBAN VENTURES VI, LLC
a Delaware limited liability company
Sole Member
By: OLSON URBAN HOUSING, LLC
a Delaware limited liability
company
Operating Member
By: IN TOWN LIVING, INC.
a Delaware corporation
Managing Member
By:_______________
Name: ____________
Title:______________
By:_______________
Name: ____________
Title:______________
Based on the Proposed Buyer’s Certificate above, and all documents attached hereto, Mortgage Lender hereby certifies that, to the actual knowledge of Mortgage Lender, after diligent review of all documents and other materials submitted to Mortgage Lender by the Proposed Buyer, but subject to the “Review Standard” (as defined in the Agreement):
(1) Proposed Buyer is a Moderate Income Household; and
(2) The purchase price to be paid by the Proposed Buyer is an Affordable Sales Price.
[Capitalized terms used above are defined in the Agreement to which this certificate is attached.].
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By: __________________________________
Printed Name: __________________________
Title: _________________________________
Lender Name: __________________________
The foregoing Proposed Buyer and Transfer is approved by City.
By: ______________________________________
Printed Name: ______________________________
Title: _____________________________________
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22554356.7 06/25/25 EXHIBIT “D”
EXHIBIT “D”
CALCULATION OF AFFORDABLE SALES PRICE
[Attached]
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Yorba Linda
4845 Casa Loma
Yorba Linda, CA 92886
Attention: City Clerk
[Space above line for Recorder’s use]
[Exempt From Recording Fee Pursuant to Government Code § 27383]
AFFORDABLE HOUSING AGREEMENT WITH RESALE RESTRICTIONS
AND OPTION TO PURCHASE
This AFFORDABLE HOUSING AGREEMENT WITH RESALE RESTRICTIONS AND OPTION TO PURCHASE (the “Agreement”) is made this ____ day of ___________, by and between ___________________________ (“Participant”), and the CITY OF YORBA LINDA, a California municipal corporation (“City”).
R E C I T A L S
A. Participant has acquired fee title to a townhome condominium located at _________________________, in the City of Yorba Linda (“City”), California (the “Property”). The Property is more particularly described in Exhibit “A” attached hereto and incorporated herein by this reference.
B. The Property was developed by Olson Urban VI – Yorba Linda 2, LLC, a Delaware limited liability company (the “Project Developer”) as part of a forty (40) unit residential townhome condominium development (the “Project”).
C. The Property and the adjacent real property developed as part of the Project (collectively, the “Project Site”) is in City’s Residential Urban (R-U) zoning district and is in City’s Congregational Lands Overlay (CLO) Zone, which allows for a minimum of thirtyeight (38) units and a maximum of sixty-six (66) units to be developed on the Project Site and requires that a minimum of twenty percent (20%) of the units developed shall be offered to, and sold to low or moderate income households at an affordable housing cost.
D. Pursuant to the CLO Zone requirements, eight (8) of the residential units constructed by the Project Developer (the “Affordable Units”) are required to be restricted, for forty-five (45) years, for sale to and ownership and occupancy by households which qualify as “persons and families of moderate income” pursuant to Health and Safety Code section 50093 at an affordable sales price, as calculated and determined pursuant to the methodology set forth in Health and Safety Code section 50052.5 (the “Affordable Sales Price”).
E. Pursuant to the State of California’s Density Bonus Law (Government Code Section 65915 et seq.) (the “Density Bonus Law”), the Project qualified for a density bonus (which the Project Developer elected not to request). In connection with the Project
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Developer’s entitlement application, the Project Developer requested, under the Density Bonus Law, and City granted, the following waivers:
1. A waiver of development standards to allow an approximately 15- foot front yard setback where 20 feet is required.
2. A waiver of development standards to allow a 4-foot side yard interior setback where interior side yard setbacks are required to have a cumulative total of both side yards of 20 feet.
3. A waiver of development standards to allow a 4-foot 8-inch rear yard setback where 25 feet is required.
4. A waiver of development standards to allow a 7-foot minimum building separation where 10 feet is required.
5. A waiver of development standards to allow a 4-foot 8-inch setback to a single-family zone where 100 feet is required for 3-story structures.
6. A waiver of development standards to waive open space requirements.
7. A waiver of development standards to reduce the requirement to provide landscaping on a minimum of 50% of the building site area.
8. A waiver of development standards to allow three-story buildings adjacent to an arterial street where a one-story building height is the maximum allowed.
F. On _______, 2026, City and the Project Developer entered into that certain Affordable Housing and Density Bonus Agreement and Declaration of Covenants, Conditions, and Restrictions, which was recorded on ____, 2026, as Instrument No. ________ in the Official Records of Orange County (the “Declaration”). The Declaration designated the Property as one of the Affordable Units.
G. Participant represents and warrants to City that Participant has read and understands the terms and provisions of this Agreement and the covenants, conditions, and restrictions set forth in this Agreement, and that Participant has obtained the advice of independent legal counsel with respect to the terms of this Agreement, including all attachments hereto, or has knowingly and voluntarily waived the right to consult with legal counsel of his/her choosing.
H. Participant is an “Eligible Buyer” which, for purposes of this Agreement is a household (i) whose annual income does not exceed the qualifying limits under California law for “moderate-income households” as established by the United States Department of Housing and Urban Development, and as published periodically by the State of California Department of Housing and Community Development, and (ii) if the Property contains two (2) bedrooms, who at initial occupancy contains not less than two (2) persons.
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I. Participant represents and warrants to City that Participant shall reside in the Property as Participant’s principal residence at all times throughout the term of this Agreement.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference and made a part hereof, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Duration of Covenants. The covenants set forth in this Agreement shall remain in effect from the date this Agreement is recorded and continue thereafter for a period of forty-five (45) years.
2. Property Transfer Restrictions.
a. Participant acknowledges that because the Project is located in the CLO Zone and obtained waivers pursuant to the Density Bonus Law, Participant was able to acquire the Property for a sales price substantially below the fair market value of the Property. As a result, except as expressly permitted in paragraph b of this Section 2, Participant shall not (i) sell, transfer assign, lease, or rent the Property or any portion of or estate in the Property, or (ii) obtain a mortgage or other loan (including the refinance of an existing loan), the repayment of which is secured by the Property (with any of the actions described in the foregoing clause (i) or (ii), a “Transfer”).
b. The following Transfers are permitted provided that Participant notifies City, in writing, prior to effecting the Transfer. (i) a transfer resulting from the death of Participant, (ii) a transfer by Participant where the spouse or domestic partner of Participant becomes a co-owner of the Property, (iii) a transfer of title to a spouse or domestic partner as part of divorce or dissolution proceedings, (iv) a transfer by Participant into a trust in which Participant is a beneficiary, provided that Participant continues to maintain the Property as Participant’s primary residence, (v) a transfer to an Eligible Buyer (provided City has made, or makes, a determination that the buyer qualifies as an Eligible Buyer in accordance with Section 4c below, and that the sales price constitutes an Affordable Sales Price in accordance with Section 4d below), (vi) a transfer by Participant of a nonpossessory interest in the Property, such as an easement or license for utilities or other like purposes, or a condemnation, or (vii) an “Approved Refinancing Mortgage” (as that term is defined in Section 12 below). c. Any Transfer that does not comply with the terms of this Section 2 is expressly prohibited by this Agreement and shall constitute a default of Participant under this Agreement, entitling City to purchase the Property from the new owner at an Affordable Sales Price pursuant to the process described in Section 4b below, as well as to exercise any remedies available at law or equity, including,
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without limitation, the enforcement of the liquidated damages provision in Section 16 of this Agreement.
3. Notice to City. Participant (or Participant’s heirs following the death of Participant) agrees to notify City in writing not less than thirty (30) days prior to any Transfer of any interest in the Property.
4. Sale of Property; City’s Option to Purchase.
a. If Participant desires to Transfer the Property, including by sale, quitclaim, exchange, or any other disposition of the Property (any of the foregoing, a “Proposed Sale”), Participant shall first notify City, at 4845 Casa Loma, Yorba Linda, CA 92886 of its intent to Transfer the Property, by sending to City the notification form attached hereto and incorporated herein as Exhibit”B” (“Participant’s Notice of Intent to Transfer”), at least ten (10) days prior to the date each time the Property is placed on the market for a Proposed Sale or Participant takes any other action to Transfer the Property or any interest therein. b. For a period of sixty (60) days commencing on the date City receives Participant’s Notice of Intent to Transfer (or, if Participant fails to send such notice, the date City discovers that Participant has placed the Property on the market or has taken any other action to Transfer the Property or any interest therein, City shall have an option to (A) purchase the Property from Participant at an “Affordable Sales Price” (as that term is defined in Section 4d below, and as determined pursuant to Section 4e below), or (B) to cause the purchase of all the Property by an Eligible Buyer at an Affordable Sales Price (“City’s Option to Purchase”).
City’s exercise of City’s Option to Purchase shall be made by delivery of written notice to Participant.
In the event City either purchases the Property or arranges the purchase by an Eligible Buyer, an escrow shall be established to close within forty-five (45) days after delivery of City’s notice of exercise (as applicable), subject to any extensions requested by City (as applicable) for causes outside the control of City.
In the event City arranges the purchase by an Eligible Buyer pursuant to this Section 4b, the Eligible Buyer shall be required to execute and record an assumption, release and consent agreement substantially in the form attached hereto and incorporated herein as Exhibit “C” (the “Assumption Agreement”), an Affordable Housing Disclosure Statement substantially in the form attached hereto and incorporated herein as Exhibit “D”, and a Subordination Agreement substantially in the form attached hereto and incorporated herein as Exhibit “E” (collectively, the “City Subsequent Buyer Documents”).
c. In the event City has failed to exercise City’s Option to Purchase within thesixty (60) day timeframe referenced in Section 4b above, and Participant desires to effect its own Transfer of the Property, the following restrictions shall apply:
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(1) Participant shall not Transfer the Property until such time as City has determined, (i) the proposed buyer is an Eligible Buyer; (ii) the proposed buyer intends to occupy the Property as its principal residence; and (iii) the Proposed Sale is at an “Affordable Sales Price” (as defined in Section 4d below). (2) If Participant identifies a proposed buyer whom Participant believes to be an Eligible Buyer, Participant shall cooperate with and reasonably assist City with the determination of whether the proposed buyer is an Eligible Buyer. Within ten (10) days after Participant locates the proposed buyer, Participant shall submit to City (1) information evidencing the proposed buyer’s identity and income in order that City may make a preliminary determination regarding the proposed buyer’s household income status (a “Preliminary Determination”); and (2) the price at which Participant proposes to sell the Property.
(3) In the event City makes a Preliminary Determination that the proposed buyer qualifies as an Eligible Buyer, Participant may proceed with opening an escrow for a Proposed Sale; provided, however, that not less than twenty (20) days prior to the date escrow is scheduled to close for the Proposed Sale, Participant shall, or shall cause the proposed buyer to, submit to City adequate information to enable City to make a final determination regarding whether the proposed buyer qualifies as an Eligible Buyer and whether the Property is available to such proposed buyer at an Affordable Sales Price (a “Final Determination”). Such information shall include (a) a completed Seller Checklist in the form attached hereto and incorporated herein as Exhibit “F”; (b) a completed Buyer Eligibility Application in the form attached hereto and incorporated herein as Exhibit “G”; and (c) the purchase and sale agreement pursuant to which Participant proposes to sell the Property to the proposed buyer. City may request additional information reasonably required to make a Final Determination regarding the proposed buyer’s status. In making a Final Determination regarding a proposed buyer, City shall apply the definition of “Gross Income” as set forth in 25 California Code of Regulations Section 6914 (“25 CCR Section 6914”). (4) If City is unable to make a Final Determination regarding the proposed buyer’s income as provided herein prior to the date set for the Proposed Sale, then the proposed buyer’s income shall be deemed to exceed the maximum allowable income limit for Eligible Buyer status and Participant may not conclude the Proposed Sale.
(5) Upon Participant’s sale of the Property to a household that qualifies as an Eligible Buyer (provided that person’s status as an Eligible Buyer has been determined by City pursuant to this Section 4c) at an Affordable Sales Price, the Eligible Buyer shall be required to execute a complete set of City Subsequent Buyer Documents.
IN THE EVENT PARTICIPANT SELLS THE PROPERTY TO
A BUYER WHO DOES NOT QUALIFY AS AN ELIGIBLE BUYER,
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CITY SHALL HAVE AN OPTION TO PURCHASE THE PROPERTY
FROM THE BUYER AT AN AFFORDABLE SALES PRICE
DETERMINED PURSUANT TO SECTION 4e BELOW.
THE FOREGOING CONSTITUTES NOTICE TO ANY
BUYER OF THE PROPERTY WHO HAS PURCHASED THE
PROPERTY WITHOUT OBTAINING THE PRIOR APPROVAL OF
CITY
d. As used herein, the term “Affordable Sales Price” shall be a purchase price which would result in an annual “Monthly Housing Cost”(as defined below) that does not exceed the maximum percentage of income that can be devoted to housing cost by an Eligible Buyer, under California Health and Safety Code Section 50052.5 or successor statute. As of the date of this Agreement, the Affordable Sales Price for an Eligible Buyer means a purchase price with a reasonable downpayment, and that would result in an annual Monthly Housing Cost that is (a) not less than twenty-eight percent (28%) of the gross income of the Eligible Buyer, and (b) not more than the product of thirty-five percent (35%) times one hundred ten percent (110%) of the Orange County area median income adjusted for family size appropriate for the Property, or, for any Eligible Buyer that has a gross income that exceeds one hundred ten percent (110%) of the Orange County area median income adjusted for family size, the annual Monthly Housing Cost may not exceed thirty-five percent (35%) of the gross income of the Eligible Buyer, all as more particularly set forth in Section 50052.5 of the California Health and Safety Code. For purposes of determining an Affordable Sales Price, a “reasonable” downpayment is a downpayment that equals five percent (5%) of the sales price for the Affordable Unit. A sample Affordable Sales Price calculation is attached hereto and incorporated herein as Exhibit “H”. “Monthly Housing Cost” shall be a cost that includes all of the following associated with the Property, estimated or known as of the date of the Proposed Sale of the Property:
(1) Principal and interest payments on a thirty-year fixed mortgage loan and any loan insurance fees associated therewith. (2) Property taxes and assessments.
(3) Flood insurance, if required by the holder of the “Primary Mortgage Deed of Trust” (as that term is defined in Section 11 below) or the Project’s covenants, conditions and restrictions.
(4) Fire and casualty insurance covering replacement value of property improvements, unless such insurance is procured by the homeowner association for the Project.
(5) Any homeowner association fees.