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AGREEMENT
BETWEEN THE CITY OF FRESNO
AND FRESNO HOUSING AUTHORITY
REGARDING HOMEKEY PROGRAM
THIS AGREEMENT (this "Agreement")is made and entered into effect on
October 29th (the "Effective Date"), by and between the CITY OF FRESNO, a California
municipal corporation (City), and HOUSING AUTHORITY OF THE CITY OF FRESNO,
a body corporate and politic, formed under the laws of the State of California (Housing
Authority).
RECITALS
WHEREAS, the State of California issued a Notice of Funding Availability for the
HomeKey Program on July 16, 2020, to award $800 million in grant funding to local public
entities, including cities, counties, or other local public entities, including housing
authorities, to purchase and rehabilitate housing, including hotels, motels, vacant
apartment buildings, and other buildings, and convert them into interim or permanent,
long-term housing; and
WHEREAS, $750 million of the $800 million comes from the State's direct
allocation of Coronavirus Aid Relief Fund (CARES) funds, for which expenses must be
incurred by December 30, 2020, and the balance of HomeKey Program funding comes
from the State of California General Fund, which must be spent by June 30, 2022; and
WHEREAS, Housing Authority has been tentatively awarded approximately $23.9
million in funding to purchase, repair, and operate the following four properties located on
the Parkway Drive corridor ("Parkway Corridor"): Day's Inn, Motel 99, Parkside Inn, and
Welcome Inn (the "Project Properties"); and
WHEREAS, HomeKey Program requires the Project Properties to be used as
temporary shelters for individuals experiencing homelessness or at risk of becoming
homeless during the COVID-19 pandemic, and at the conclusion of the pandemic,
HomeKey Program-funded properties may be converted to permanent affordable housing
(the "Project"); and
WHEREAS, City supported Housing Authority's application for HomeKey Program
funding with support letters from the Mayor pledging that he would seek the approval of
the City Council for funding to help support the operations and services for these
temporary shelters for up to five years; and
WHEREAS, to finalize the HomeKey Program funding award, the California
Department of Housing and Community Development is requiring Housing Authority to
provide a contract to show the City's commitment to helping Housing Authority fund the
operations and services for these temporary shelters, and
WHEREAS, City declares homelessness is a public health and safety issue and
the City Council declares there to be a shelter emergency for the community and its
intention through this contract is to partner with Housing Authority to provide housing and
services to as many individuals experiencing homelessness as possible; and
WHEREAS, the Project Properties are under contract for acquisition subject to
Housing Authority Board approval, and
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WHEREAS, Acquisition of the Project Properties will provide up to 321 units; and
WHEREAS, once the Project Properties are acquired, they will be used to provide
temporary housing and services for homeless individuals and families or those at risk of
homelessness, and will thereafter be considered for future permanent affordable housing;
and
WHEREAS, City's commitment of funds under this Agreement will allow Housing
Authority's application with the State to move forward, resulting in over $23 million in
acquisition, repair, operations and services funding for the Project Properties; and
WHEREAS, the parties also wish to commit to a long-term vision of revitalization
for the Parkway Corridor; and
WHEREAS, this Agreement will be administered for City by its City Manager
(Administrator) or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and premises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Responsibilities of the Parties. Housing Authority agrees to acquire title to
the Project Properties and implement the Project pursuant to HomeKey Program
guidelines, including providing operational and supportive services. City agrees to
provide a financial contribution towards Project's operational and supportive services on
the terms and conditions set forth herein. The parties jointly agree to engage in future
planning and funding strategies to jointly revitalize the Parkway Corridor.
2. Term of Agreement and Conditions Precedent. This Agreement shall be
effective on the Effective Date and shall continue in full force and effect through
December 31, 2025, subject to any earlier termination in accordance with this Agreement.
As a condition precedent to performance by City, Housing Authority will acquire title to
the Project Properties and commence operations as homeless housing at all four sites.
3. Compensation.
(a) So long as the Project Properties are operated as temporary
homeless shelters, City shall provide an annual contribution towards operational and
supportive services for the Project Properties, not to exceed the amounts set forth in the
schedule below ("Annual Contribution").
Year 1: $1,297,011 (on or before January 15, 2021)
Year 2: $1,344,575 (on or before January 15, 2022)
Year 3: $1,428,468 (on or before January 15, 2023)
Year 4: $1,481,119 (on or before January 15, 2024)
Year 5: $1,290,965 (on or before January 15, 2025)
(b) Payment of the Year 1 Annual Contribution shall be committed on or
before January 15, 2021 , and each subsequent Annual Contribution shall be committed
before January 15 of each subsequent year. In order for the City to make each Annual
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Contribution payment, the parties shall approve and execute as an addendum to this
Agreement a subrecipient agreement setting forth the source of funding and any jointly
agreed to restrictions associated therewith. City's contribution shall be conditioned upon
availability of funding and final Council approval of use of funds for this purpose. Nothing
in this Agreement shall pre-commit the City to any future legislative act but the City shall
work in good faith to help ensure that funding is available for the Project Properties.
(c) The parties may agree to modify this Agreement to increase or
decrease the scope of services or provide for the rendition of services not required by this
Agreement, which modification shall include an adjustment to Housing Authority's
compensation. Any change in the scope of services must be made by written amendment
to the Agreement signed by an authorized representative for each party. Housing
Authority shall not be entitled to any additional compensation if services are performed
prior to a signed written amendment.
(d) Housing Authority agrees to expend the Annual Contribution in a
manner consistent with this Agreement and with all requirements of State of California
HomeKey Program. For all funds distributed pursuant to this Agreement, Housing
Authority shall be solely responsible for confirming the funding source is applicable and
for compliance with all associated requirements. Once Housing Authority accepts any
funds under this Agreement, Housing Authority shall be solely responsible and liable for
any funds disallowed by the State of California or the Federal Government to the extent
that such disallowance does not relate to City's conduct prior to release of such funds. If
any such funds shall be determined to have been requested and/or used by Housing
Authority for costs other than for eligible costs, and subject to the notice and cure
provisions of Section 4 below, an equal amount from non-public funds shall become
immediately due and payable by the Housing Authority to the City; provided, however,
that the Housing Authority shall, subject to its full cooperation with the City, be entitled to
participate in any opportunity to remedy, contest, or appeal such determination.
(e) The parties shall diligently seek additional grants and funding to
provide the services being funded by this Agreement. If such funding is acquired, City
and Housing Authority shall develop a protocol for reducing each party's contributions
using proportionality as the guiding principle.
(f) In the event any funding provided by a party other than City for the
Program or services being performed hereunder is suspended, reduced or withdrawn,
then either party may suspend this Agreement immediately upon its receipt of notice
thereof, or terminate this Agreement as provided in Section 4 below.
4. Termination Remedies and Force Ma9eure.
(a) This Agreement shall terminate without any liability of City to Housing
Authority upon the earlier of: (i) Housing Authority's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against Housing Authority; (ii) sixty (60) calendar days' prior written notice for breach
of this Agreement by the Housing Authority; (iii) City's non-appropriation of funds sufficient
to meet its obligations hereunder during any City fiscal year of this Agreement, or
insufficient funding for the Project; or (iv) expiration of this Agreement.
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(b) This Agreement shall terminate without any liability of Housing
Authority to City upon the earlier of: (i) City's filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against City; (ii) sixty (60) calendar days' prior written notice for breach of this
Agreement by City; (iii) the Housing Authority's non-appropriation of funds sufficient to
meet its obligations hereunder during any Housing Authority fiscal year of this Agreement,
or insufficient funding for the Project; or (iv) expiration of this Agreement.
(c) Immediately upon any termination or expiration of this Agreement,
each party shall (i) immediately stop all work hereunder; (ii) immediately cause any and
all of its subcontractors to cease work; and, (iii) in the case of the Housing Authority,
return to City any and all unearned payments and all properties and materials in the
possession of Housing Authority that are owned by City. Subject to the terms of this
Agreement, Housing Authority shall be paid compensation for services satisfactorily
performed prior to the effective date of termination.
(d) Upon any breach of this Agreement by either party, the other may
(i) exercise any right, remedy (in contract, law or equity), or privilege which may be
available to it under applicable laws of the State of California or any other applicable law;
(ii) proceed by appropriate court action to enforce the terms of the Agreement; and/or(iii)
recover all direct, indirect, consequential, economic and incidental damages for the
breach of the Agreement. (e) Each party shall provide the other with adequate
written assurances of future performance in the event that either party fails to comply with
any terms or conditions of this Agreement.
(f) Each party shall be liable for default unless its nonperformance is
caused by an occurrence beyond the reasonable control of that party and without its fault
or negligence such as, acts of God or the public enemy, acts of City or the Housing
Authority, as the case may be, in its contractual capacity, fires, floods, epidemics,
quarantine restrictions, strikes, unusually severe weather, and delays of common carriers.
The nonperforming party shall notify the other in writing as soon as it is reasonably
possible after the commencement of any excusable delay, setting forth the full particulars
in connection therewith, and shall remedy such occurrence with all reasonable dispatch,
and shall promptly give written notice to the other of the cessation of such occurrence.
5. City Priority Use. The parties agree that, subject to California and federal
law, residents of the City of Fresno residents shall have priority within the Project
Properties. The City shall have first priority for use of at least 30% of the total units of the
Project Properties ("City Priority Units") to which City may refer eligible residents, which
may include individuals living in homeless encampments. If any City Priority Unit sits
vacant for 30 days, Housing Authority may fill the unit, and shall notify the City when a
subsequent unit becomes vacant and that unit shall become a City Priority Unit, to keep
the total number of City Priority Units at or above 30%.
6. Future Planning.
(a) In addition to the Project Properties acquired for the Project, the City
may of its own accord purchase one or more hotels on the Parkway Corridor. City and
Housing Authority agree to collaborate on the development of a rehabilitation plan for the
Parkway Corridor, including neighborhood amenities, permanent affordable housing,
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permanent supportive housing, mixed income housing, market rate housing, and
commercial and retail amenities. The parties agree to work cooperatively to obtain
alternative sources of funding for such an effort.
(b) The parties agree the City Manager and/or his or her designee, the
Fresno City Council President or its designee, and the Housing Authority Executive
Director and/or his or her designee, shall meet no less than twice a year to review
budgets, discuss current and future funding needs, determine the application of any
additional funding, and to discuss the future development of the area and any other
aspects of the efforts described in this Agreement.
7. Intentionalty Deleted.
8. Level of Skill; Subcontractors.
(a) Housing Authority may, at its sole discretion, subcontract any of the
services required under this Agreement, in compliance with the terms of this Agreement
and HomeKey Program guidelines. It is further mutually understood and agreed by and
between the parties hereto that inasmuch as Housing Authority represents to City that
Housing Authority and its subcontractors, if any, are skilled in the profession and shall
perform in accordance with the standards of said industry necessary to perform the
services agreed to be done by it under this Agreement, City relies upon the skill of
Housing Authority and its subcontractors, if any, to do and perform such services in a
skillful manner and Housing Authority agrees to thus perform the services and require the
same of any subcontractors. Therefore, any acceptance of such services by City shall
not operate as a release of Housing Authority or any subcontractors from said industry
and professional standards.
(b) City reserves the right to hire additional contractors to perform the
services required under this Agreement, and offset the current or next Annual
Contribution payment accordingly, so long as such hiring and associated offset is
memorialized in an Addendum executed by the parties, setting forth the amount of the
offset.
(c) If Housing Authority subcontracts any or all of the services to be
performed under this Agreement where the subcontract is for a total of $250,000 or
greater during any calendar year, Housing Authority shall require, at the discretion of the
City Risk Manager or designee, subcontractor(s)to enter into a separate Side Agreement
with the City to provide required indemnification and insurance protection. Any required
Side Agreement(s) and associated insurance documents for the subcontractor must be
reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is
required, the Housing Authority will be solely responsible for ensuring that its
subcontractors maintain insurance coverage at levels no less than those required by
applicable law and is customary in the relevant industry.
(d)To the full extent required by applicable federal and state law, each party
and its contractors and agents shall comply with the Davis-Bacon Act, as amended,
California Labor Code Section 1720 et seq., and the regulations adopted pursuant thereto
("Prevailing Wage Laws"), if so required, and shall be solely responsible for carrying out
the requirements of such provisions. Each party shall indemnify, defend and hold the
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other and its elected and appointed officers, officials, employees, agents, consultants,
and contractors harmless from and against all liability, loss, cost, expense (including
without limitation attorneys' fees and costs of litigation), claim, demand, action, suit,
judicial or administrative proceeding, penalty, deficiency, fine, order, and damage which
directly or indirectly, in whole or in part, are caused by, arise in connection with, result
from, relate to, or are alleged to be caused by, arise in connection with, or relate to, the
payment or requirement of payment of prevailing wages (including without limitation, all
claims that may be made by contractors, subcontractors, or third party claimants pursuant
to Labor Code sections 1726 and 1781), the failure to comply with any state or federal
labor laws, regulations or standards in connection with this Agreement, including, but not
limited to the Prevailing Wage Laws, or any act or omission of that party related to the
payment or requirement of payment of prevailing wages.
9. Indemnification. To the furthest extent allowed by law, Housing Authority
shall indemnify, hold harmless and defend City and each of its officers, officials,
employees, agents, and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including but not
limited to personal injury, death at any time and property damage), and from any and all
claims, demands and actions in law or equity (including reasonable attorney's fees and
litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness
or willful misconduct of Housing Authority, its principals, officers, employees, agents, or
volunteers in the performance of this Agreement.
If, pursuant to Section 8 above, Housing Authority should subcontract all or any
portion of the services to be performed under this Agreement, Housing Authority shall
require each subcontractor to indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents, and volunteers in accordance with the terms of the
preceding paragraph.
Conversely, to the furthest extent allowed by law, City shall indemnify, hold
harmless and defend Housing Authority and each of its officers, officials, employees,
agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs
and damages (whether in contract, tort or strict liability, including but not limited to
personal injury, death at any time and property damage), and from any and all claims,
demands and actions in law or equity (including reasonable attorney's fees and litigation
expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful
misconduct of City, its principals, officers, employees, agents, or volunteers in the
performance of this Agreement.
If, pursuant to Section 8 above, City should subcontract all or any portion of the
services to be performed under this Agreement, City shall require each subcontractor to
indemnify, hold harmless and defend Housing Authority and each of its officers, officials,
employees, agents, and volunteers in accordance with the terms of the preceding
paragraph.
This Section shall survive termination or expiration of this Agreement.
10. Insurance.
(a) Throughout the life of this Agreement, Housing Authority shall pay
for and maintain in full force and effect all insurance as required in Exhibit B, which is
incorporated into and part of this Agreement, with an insurance company(ies) either
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(i) admitted by the California Insurance Commissioner to do business in the State of
California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as
may be authorized in writing by City's Risk Manager or designee at any time and in its
sole discretion. The required policies of insurance as stated in Exhibit B shall maintain
limits of liability of not less than those amounts stated therein. However, the insurance
limits available to City, its officers, officials, employees, agents, and volunteers as
additional insureds, shall be the greater of the minimum limits specified therein or the full
limit of any insurance proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension,
Housing Authority or any of its subcontractors fail to maintain any required insurance in
full force and effect, all services and work under this Agreement shall be discontinued
immediately, and all payments due or that become due to Housing Authority shall be
withheld until notice is received by City that the required insurance has been restored to
full force and effect and that the premiums therefore have been paid for a period
satisfactory to City. Any failure to maintain the required insurance shall be sufficient
cause for City to terminate this Agreement. No action taken by City pursuant to this
Section shall in any way relieve Housing Authority of its responsibilities under this
Agreement. The phrase "fail to maintain any required insurance" shall include, without
limitation, notification received by City that an insurer has commenced proceedings, or
has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by Housing Authority shall not be
deemed to release or diminish the liability of Housing Authority, including, without
limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify
City shall apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of indemnification
to be provided by Housing Authority. Approval or purchase of any insurance contracts or
policies shall in no way relieve from liability nor limit the liability of Housing Authority, its
principals, officers, agents, employees, or persons under the supervision of Housing
Authority, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or
anyone employed directly or indirectly by any of them.
(d) Upon request of City, Housing Authority shall immediately furnish
City with a complete copy of any insurance policy required under this Agreement,
including all endorsements, with said copy certified by the underwriter to be a true and
correct copy of the original policy. This requirement shall survive expiration or termination
of this Agreement.
(e) If Housing Authority should subcontract all or any portion of the
services to be performed under this Agreement, Housing Authority shall require each
subcontractor/sub-consultant to provide insurance protection, as an additional insured, to
the City and each of its officers, officials, employees, agents, and volunteers in
accordance with the terms of this Section, except that any required certificates and
applicable endorsements shall be on file with Housing Authority and City prior to the
commencement of any services by the subcontractor. Housing Authority and any
subcontractor/sub-consultant shall establish additional insured status for City, its officers,
officials, employees, agents, and volunteers by using Insurance Service Office (ISO)
Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed
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manuscript company endorsement providing additional insured status as broad as that
contained in ISO Form CG 20 10 11 85.
11. Conflict of Interest and Non-Solicitation.
(a) Prior to City's execution of this Agreement, Housing Authority shall
complete a City of Fresno conflict of interest disclosure statement in the form as set forth
in Exhibit C. During the term of this Agreement, Housing Authority shall have the
obligation and duty to immediately notify City in writing of any change to the information
provided by Housing Authority in such statement.
(b) Housing Authority shall comply, and require its subcontractors to
comply, with all applicable (i) professional canons and requirements governing avoidance
of impermissible client conflicts; and (ii) federal, state, and local conflict of interest laws
and regulations including, without limitation, California Government Code Section 1090
et. seq., the California Political Reform Act (California Government Code Section 87100
et. seq.) and the regulations of the Fair Political Practices Commission concerning
disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.).
At any time, upon written request of City, Housing Authority shall provide a written opinion
of its legal counsel and that of any subcontractor that, after a due diligent inquiry, Housing
Authority and the respective sub contractor(s) are in full compliance with all laws and
regulations. Housing Authority shall take, and require its subcontractors to take,
reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any
facts giving rise to the appearance of a conflict of interest, Housing Authority shall
immediately notify City of these facts in writing.
(c) In performing the work or services to be provided hereunder,
Housing Authority shall not employ or retain the services of any person while such person
either is employed by City or is a member of any City council, commission, board,
committee, or similar City body. This requirement may be waived in writing by the City
Manager, if no actual or potential conflict is involved.
(d) Housing Authority represents and warrants that it has not paid or
agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit, or
procure this Agreement or any rights/benefits hereunder.
(e) Housing Authority and any of its subcontractors shall have no
interest, direct or indirect, in any other contract with a third party in connection with this
Project unless such interest is in accordance with all applicable law and fully disclosed to
and approved by the City Manager, in advance and in writing. Notwithstanding any
approval given by the City Manager under this provision, Housing Authority shall remain
responsible for complying with Section (a), above.
(f) If Housing Authority should subcontract all or any portion of the work
to be performed or services to be provided under this Agreement, Housing Authority shall
include the provisions of this Section in each subcontract and require its subcontractors
to comply therewith.
(g) This Section shall survive expiration or termination of this
Agreement.
12. Recycling Program. In the event Housing Authority maintains an office or
operates a facility(ies), or is required herein to maintain or operate same, within the
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incorporated limits of the City of Fresno, Housing Authority at its sole cost and expense
shall:
(i) Immediately establish and maintain a viable and ongoing recycling
program, approved by City's Solid Waste Management Division, for each
office and facility. Literature describing City recycling programs is available
from City's Solid Waste Management Division and by calling City of Fresno
Recycling Hotline at (559) 621-1111.
(ii) Immediately contact City's Solid Waste Management Division at (559) 621-
1452 and schedule a free waste audit, and cooperate with such Division in
their conduct of the audit for each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of City's Solid Waste
Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
13. General Terms.
(a) Except as otherwise provided by law, all notices expressly required
of City within the body of this Agreement, and not otherwise specifically provided for, shall
be effective only if signed by the Administrator or designee.
(b) Records of Housing Authority's expenses pertaining to the Project
shall be kept on a generally recognized accounting basis and shall be available to City or
its authorized representatives upon request during regular business hours throughout the
life of this Agreement and for a period of three years after final payment or, if longer, for
any period required by law. In addition, all books, documents, papers, and records of
Housing Authority pertaining to the Project shall be available for the purpose of making
audits, examinations, excerpts, and transcriptions for the same period of time. If any
litigation, claim, negotiations, audit or other action is commenced before the expiration of
said time period, all records shall be retained and made available to City until such action
is resolved, or until the end of said time period whichever shall later occur. If Housing
Authority should subcontract all or any portion of the services to be performed under this
Agreement, Housing Authority shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section shall survive expiration or termination of
this Agreement.
(c) Housing Authority shall provide City a report aligning with the
HomeKey Program reporting requirements semi-annually, or as reasonably requested by
the City.
(d) Prior to execution of this Agreement by City, Housing Authority shall
have provided evidence to City that Housing Authority is licensed to perform the services
called for by this Agreement (or that no license is required). If Housing Authority should
subcontract all or any portion of the work or services to be performed under this
Agreement, Housing Authority shall require each subcontractor to provide evidence to
City that subcontractor is licensed to perform the services called for by this Agreement
(or that no license is required) before beginning work.
14. Nondiscrimination. To the extent required by controlling federal, state and
local law, Housing Authority shall not employ discriminatory practices in the provision of
services, employment of personnel, or in any other respect on the basis of race, religious
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creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled
veteran or veteran of the Vietnam era. Subject to the foregoing and during the
performance of this Agreement, Housing Authority agrees as follows:
(a) Housing Authority will comply with all applicable laws and regulations
providing that no person shall, on the grounds of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital status,
sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era be excluded from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity made possible by or resulting from this
Agreement.
(b) Housing Authority will not discriminate against any employee or
applicant for employment because of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Housing
Authority shall ensure that applicants are employed, and the employees are treated
during employment, without regard to their race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, marital status, sex, age,
sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
Such requirement shall apply to Housing Authority's employment practices including, but
not be limited to, the following: employment, upgrading, demotion or transfer; recruitment
or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. Housing Authority
agrees to post in conspicuous places, available to employees and applicants for
employment, notices setting forth the provision of this nondiscrimination clause.
(c) Housing Authority will, in all solicitations or advertisements for
employees placed by or on behalf of Housing Authority in pursuit hereof, state that all
qualified applicants will receive consideration for employment without regard to race,
religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era.
(d) Housing Authority will send to each labor union or representative of
workers with which it has a collective bargaining agreement or other contract or
understanding, a notice advising such labor union or workers' representatives of Housing
Authority's commitment under this Section and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(e) If Housing Authority should subcontract all or any portion of the
services to be performed under this Agreement, Housing Authority shall cause each
subcontractor to also comply with the requirements of this Section.
15. Independent Contractor.
(a) In the furnishing of the services provided for herein, Housing
Authority is acting solely as an independent contractor. Neither Housing Authority, nor
any of its officers, agents, or employees shall be deemed an officer, agent, employee,
joint venturer, partner, or associate of City for any purpose. City shall have no right to
control or supervise or direct the manner or method by which Housing Authority shall
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perform its work and functions. However, City shall retain the right to administer this
Agreement, to the extent provided for herein, so as to verify that Housing Authority is
performing its obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between Housing Authority and City. Housing Authority shall have no authority to bind
City absent City's express written consent. Except to the extent otherwise provided in
this Agreement, Housing Authority shall bear its own costs and expenses in pursuit
thereof.
(c) Because of its status as an independent contractor, Housing
Authority and its officers, agents, and employees shall have absolutely no right to
employment rights and benefits available to City employees. Housing Authority shall be
solely liable and responsible for all payroll and tax withholding and for providing to, or on
behalf of, its employees all employee benefits including, without limitation, health, welfare
and retirement benefits. In addition, together with its other obligations under this
Agreement, Housing Authority shall be solely responsible, indemnify, defend and save
City harmless from all matters relating to employment and tax withholding for and
payment of Housing Authority's employees, including, without limitation, (i) compliance
with Social Security and unemployment insurance withholding, payment of workers
compensation benefits, and all other laws and regulations governing matters of employee
withholding, taxes and payment; and (ii) any claim of right or interest in City employment
benefits, entitlements, programs and/or funds offered employees of City whether arising
by reason of any common law, de facto, leased, or co- employee rights or other theory.
It is acknowledged that during the term of this Agreement, Housing Authority may be
providing services to others unrelated to City or to this Agreement.
16. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other address as the
parties may from time to time designate by written notice. Notices served by United
States mail in the manner above described shall be deemed sufficiently served or given
at the time of the mailing thereof.
17. Binding. Once this Agreement is signed by all parties, it shall be binding
upon, and shall inure to the benefit of, all parties, and each parties' respective heirs,
successors, assigns, transferees, agents, servants, employees and representatives.
18. Assignment.
(a) This Agreement is personal to each party and there shall be no
assignment by either party of its rights or obligations under this Agreement without the
prior written approval of the other. Any attempted assignment shall be null and void
unless approved in writing for the City, by the City Manager or designee, or for the
Housing Authority, by its CEO. The City expressly acknowledges that Housing Authority
may assign all or some of its rights and obligations to Housing Authority's instrumentality,
Silvercrest, a California nonprofit public benefit corporation.
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26686200/18621.0001 ALL-B GSP Agt Total Fee(09-2019)
(b) Housing Authority hereby agrees not to assign the payment of any
monies due Housing Authority from City under the terms of this Agreement to any other
individual(s), corporation(s) or entity(ies). City retains the right to pay any and all monies
due Housing Authority directly to Housing Authority.
19. Compliance With Law. Each party shall at all times comply with all
applicable laws of the United States, the State of California and City, and with all
applicable regulations promulgated by federal, state, regional, or local administrative and
regulatory agencies, now in force and as they may be enacted, issued, or amended during
the term of this Agreement.
20. Waiver. The waiver by either party of a breach by the other of any provision
of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement. No provisions of this
Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other
provision herein.
21. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California, excluding,
however, any conflict of laws rule which would apply the law of anotherjurisdiction. Venue
for purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties hereunder shall be Fresno County, California.
22. Headings. The Section headings in this Agreement are for convenience
and reference only and shall not be construed or held in any way to explain, modify or
add to the interpretation or meaning of the provisions of this Agreement.
21. Seve r__ ability. The provisions of this Agreement are severable. The
invalidity, or unenforceability of any one provision in this Agreement shall not affect the
other provisions.
23. Interpretation. The parties acknowledge that this Agreement in its final form
is the result of the combined efforts of the parties and that, should any provision of this
Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved
by construing this Agreement in favor of or against either party, but rather by construing
the terms in accordance with their generally accepted meaning.
24. Attorney's Fees. If either party is required to commence any proceeding or
legal action to enforce or interpret any term, covenant or condition of this Agreement, the
prevailing party in such proceeding or action shall be entitled to recover from the other
party its reasonable attorney's fees and legal expenses.
25. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
26. Precedence of Documents. In the event of any conflict between the body
of this Agreement and any exhibit or attachment hereto, the terms and conditions of the
body of this Agreement shall control and take precedence over the terms and conditions
expressed within the exhibit or attachment. Furthermore, any terms or conditions
contained within any exhibit or attachment hereto which purport to modify the allocation
of risk between the parties, provided for within the body of this Agreement, shall be null
and void.
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26686200/18621.0001 ALL-B GSP Agt Total Fee(09-2019)
I
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
28. No Third Party Beneficiaries. The rights, interests, duties, and obligations
defined within this Agreement are intended for the specific parties hereto as identified in
the preamble of this Agreement. Notwithstanding anything stated to the contrary in this
Agreement, it is not intended that any rights or interests in this Agreement benefit or flow
to the interest of any third parties.
29. Extent of Agreement. Each party acknowledges that they have read and
fully understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter hereof
and supersedes all prior negotiations, representations or agreements, either written or
oral. This Agreement may be modified only by written instrument duly authorized and
executed by both City and Housing Authority.
[SIGNATURES FOLLOW ON THE NEXT PAGE.]
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26686200/18621.0001 ALL-B GSP Agt Total Fee(09-2019)
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO, HOUSING AUTHORITY OF THE CITY
a California ipal cor tion OF FRESNO,
a body corporate and politic
By
W.
rrma an, City na er By:
APPROVED AS TO ❑� Name: — P
DOUGLAS T. SLOA
City A torney Title:
L and air,
By (on vuvarJow
Date By.
Senior DepuQ City Attorney I�.�' Name: r
ATTEST: Title:
YVONNE SPENCE, CRM MMC CEO
City C I r
By: 1
Deputy
Addresses:
CITY: HOUSING AUTHORITY: Attention:
City of Fresno Preston Prince, Executive Director
Attention: City Manager 1331 Fulton Street
2600 Fresno Street Fresno, CA 93721
Fresno, CA 93721 Phone: (559) 443-8475
Phone: (559) 621-7770
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
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26686200/18621.0001 ALL-B GSP Agt Total Fee(09-2019)
EXHIBIT A
SCOPE OF SERVICES
The Housing Authority of the City of Fresno, CA (HACF), in its role as applicant to the
State of California's Department of Housing and Community Development's Homekey
program, intends to acquire the subject sites as they are awarded Homekey funds.
HACF will perform all due diligence in the property acquisition process, including
obtaining title reports, appraisals, physical needs assessments and performing
environmental testing. HACF staff is working with contractors and trade services
vendors to assess the scope of repairs necessary at each site and prepare the units for
initial occupancy within 30-90 days. HACF will provide or partner with service providers
to operate the properties for an interim period of up to 5 years. Resident services
provided may include case management and coordination of services with linkage to
primary health, mental health and substance abuse services as necessary; assistance
in readiness for permanent housing
26686200/18621.0001 Page 1 of 1
EXHIBIT B
INSURANCE REQUIREMENTS
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage for
"bodily injury," "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non-
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under
"Minimum Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance or
use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall provide
coverage for all owned, hired, and non-owned automobiles or other licensed
vehicles (Code 1-Any Auto). If personal automobile coverage is used, the
City, its officers, officials, employees, agents, and volunteers are to be listed
as additional insureds.
3. Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
Housing Authority, or any party the Housing Authority subcontracts with, shall maintain
limits of liability of not less than those set forth below. However, insurance limits available
to City, its officers, officials, employees, agents, and volunteers as additional insureds,
shall be the greater of the minimum limits specified herein or the full limit of any insurance
proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
0) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
OR*
26686200/18621.0001 Page 1 of 3
PERSONAL AUTOMOBILE LIABILITY insurance with limits of liability not
less than:
(i) $100,000 per person;
(ii) $300,000 per accident for bodily injury; and,
(iii) $50,000 per accident for property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
In the event Housing Authority purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella
or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis
for the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
Housing Authority shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and Housing Authority shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must
be declared on the Certificate of Insurance, and approved by, the City's Risk Manager or
designee. At the option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects City, its officers, officials, employees, agents,
and volunteers; or
(ii) Housing Authority shall provide a financial guarantee, satisfactory to
City's Risk Manager or designee, guaranteeing payment of losses
and related investigations, claim administration and defense
expenses. At no time shall City be responsible for the payment of
any deductibles or self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
The General Liability and Automobile Liability insurance policies are to contain, or be
endorsed to contain, the following provisions:
1. City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. Housing Authority shall establish additional
insured status for the City and for all ongoing and completed operations by
use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and
CG 20 37 10 01 or by an executed manuscript insurance company
endorsement providing additional insured status as broad as that contained
in ISO Form CG 20 10 11 85.
26686200/18621.0001 Page 2 of 3
2. The coverage shall contain no special limitations on the scope of protection
afforded to City, its officers, officials, employees, agents, and volunteers.
Any available insurance proceeds in excess of the specified minimum limits
and coverage shall be available to the Additional Insured.
3. For any claims related to this Agreement, Housing Authority's insurance
coverage shall be primary insurance with respect to the City, its officers,
officials, employees, agents, and volunteers. Any insurance or self-
insurance maintained by the City, its officers, officials, employees, agents,
and volunteers shall be excess of Housing Authority's insurance and shall
not contribute with it. Housing Authority shall establish primary and non-
contributory status by using ISO Form CG 20 01 04 13 or by an executed
manuscript insurance company endorsement that provides primary and
non-contributory status as broad as that contained in ISO Form CG
2001 04 13.
The Workers'Compensation insurance Aolicv is to contain, or be endorsed to contain, the
following provision: Housing Authority and its insurer shall waive any right of subrogation
against City, its officers, officials, employees, agents, and volunteers.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty
calendar days' written notice by certified mail, return receipt requested, has been given
to City. Housing Authority is also responsible for providing written notice to the City under
the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice
of cancellation, non-renewal, or reduction in coverage or in limits, Housing Authority shall
furnish City with a new certificate and applicable endorsements for such policy(ies). In
the event any policy is due to expire during the work to be performed for City, Housing
Authority shall provide a new certificate, and applicable endorsements, evidencing
renewal of such policy not less than fifteen calendar days' prior to the expiration date of
the expiring policy.
VERIFICATION OF COVERAGE
Housing Authority shall furnish City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the City's Risk Manager or designee prior to City's
execution of the Agreement and before work commences. All non-ISO endorsements
amending policy coverage shall be executed by a licensed and authorized agent or
broker. Upon request of City, Housing Authority shall immediately furnish City with a
complete copy of any insurance policy required under this Agreement, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy of
the original policy. This requirement shall survive expiration, or termination of this
Agreement.
26686200/18621.0001 Page 3 of 3
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its ❑
agents?
2 Do you represent any firm, organization, or person who is in litigation ❑ [_
with the City of Fresno?
3 Do you currently represent or perform work for any clients who do ❑
business with the City of Fresno?
4 Are you or any of your principals, managers, or professionals,
owners or investors in a business which does business with the City ❑
of Fresno, or in a business which is in litigation with the City of
Fresno?
5 Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee who ❑ V�
has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with ❑
this Project?
* If the answer to any question is yes, please explain i 7bew.
Explanation: `''
Sign Lure
24�7,
Date
Ir
Name et
Company
Address
❑Additional page(s) attached.
City, State, Zip
26686200/18621.0001 Page 1 of 1