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HomeMy WebLinkAboutPoverello House - Agreement - 3-2-2023GRANT (STATE AND LOCAL FISCAL RECOVERY FUNDS FROM THE U.S. DEPARTMENT OF TREASURY) AGREEMENT BETWEEN THE CITY OF FRESNO AND POVERELLO HOUSE REGARDING FUNDING UNDER THE AMERICAN RESCUE PLAN ACT THIS GRANT AGREEMENT (AGREEMENT) is made and entered into effective upon execution by both parties (the Effective Date), by and between the CITY OF FRESNO (CITY), and the POVERELLO HOUSE (GRANTEE), to grant funding for the purchase of 26 prefabricated tiny homes for permanent supportive housing. RECITALS WHEREAS, the CITY has received State and Local Fiscal Recovery Funds (SLFRF) from the U.S. Department of the Treasury under the Coronavirus State Fiscal Recovery Fund and the Coronavirus Local Fiscal Recovery Fund established under the American Rescue Plan Act of 2021, as amended (Act); and WHEREAS, the CITY has elected to use a portion of the SLFRF allocation to support the COVID-19 Public Health and Economic Response to address impact on households by using funds to housing activities, an eligible use of funds under the Act; and WHEREAS, the GRANTEE acknowledges the grant funds being provided under this Agreement are subject to any constraints set forth in the Act; and WHEREAS, the GRANTEE is a nonprofit organization operating in the City of Fresno and wishes to purchase 26 prefabricated tiny homes for the purpose of providing permanent supportive housing for those experiencing homelessness; and WHEREAS, the CITY desires to assist the GRANTEE in purchasing 26 prefabricated tiny homes (Project) as described in the Scope of Work — Exhibit "A", and WHEREAS, the CITY desires to grant the GRANTEE an amount not to exceed Nine Hundred Sixty -Four Thousand, Four Hundred Eighty -Two Dollars ($964,482) upon execution of this Agreement for the actual approved total expenditures of the Project as described in Exhibit "B" - Budget; and WHEREAS, this Agreement will be administered for the CITY by the Planning and Development Department, Division of Housing and Community Development; and WHEREAS, GRANTEE represents it desires to and is professionally and legally capable of immediately providing homeless services for City of Fresno. 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. Scope of Services. The GRANTEE shall perform to the satisfaction of the CITY the services described in Exhibit "A" — Scope of Services. 2. Grant Amount. The CITY shall provide the GRANTEE an amount not to exceed Nine Hundred Sixty -Four Thousand, Four Hundred Eighty -Two Dollars Page 1 ($964,482) for the services described in Exhibit "A" and in accordance with the Budget set forth in Exhibit "B". 3. Term of Agreement and Time for Performance. This Agreement shall be effective from the Effective Date through December 31, 2926, subject to earlier termination in accordance with this Agreement. The services as described in Exhibit "A" are to commence upon the Effective Date and shall be completed prior to expiration of this Agreement and in accordance with any performance schedule set forth in Exhibit "A". 4. Amendment to Increase or Decrease Scope of Services: The CITY and GRANTEE may modify this Agreement to increase/decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification may include an adjustment to GRANTEE's compensation. Any change in the scope of services must be made by written amendment to the Agreement signed by an authorized representative of the CITY and GRANTEE. The GRANTEE shall not be entitled to any additional compensation if the services are performed prior to a signed written amendment. 5. Termination, Remedies and Force Ma'eure. (a) This Agreement shall terminate without any liability of the CITY or to the GRANTEE upon the earlier of: (i) the GRANTEE filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against the GRANTEE; (ii) seven calendar days prior written notice with or without cause by the CITY to the GRANTEE; (iii) the 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. (b) Immediately upon any termination or expiration of this Agreement, the GRANTEE shall (i) immediately stop all work hereunder; (ii) immediately cause any and all of its subcontractors to cease work; and (iii) return to the CITY any and all unearned payments and all properties and materials in the possession of the GRANTEE that are owned by the CITY. Subject to the terms of this Agreement, the GRANTEE shall be paid compensation for services satisfactorily performed prior to the effective date of termination. The GRANTEE shall not be paid for any services performed or costs incurred which reasonably could have been avoided. (c) In the event of termination due to failure of the GRANTEE to satisfactorily perform in accordance with the terms of this Agreement, the CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, the CITY's damages caused by such failure. In no event shall any payment by the CITY pursuant to this Agreement constitute a waiver by the CITY of any breach of this Agreement which may then exist on the part of the GRANTEE, nor shall such payment impair or prejudice any remedy available to the CITY with respect to the breach. (d) Upon any breach of this Agreement by the GRANTEE, the CITY 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 Page 2 damages for the breach of the Agreement. If it is determined that the CITY improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience. (e) The GRANTEE shall provide the CITY with adequate written assurances of future performance, upon the CITY's request, in the event the GRANTEE fails to comply with any terms or conditions of this Agreement. (f) The GRANTEE shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the GRANTEE and without its fault or negligence such as, acts of God or the public enemy, acts of the CITY in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The GRANTEE shall notify the CITY 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 CITY of the cessation of such occurrence. 6. Confidential Information and Ownership of Documents. (a) Any reports, information, or other data prepared or assembled by the GRANTEE pursuant to this Agreement shall not be made available to any individual or organization by the GRANTEE without the prior written approval of the CITY. During the term of this Agreement, and thereafter, the GRANTEE shall not, without the prior written consent of the CITY, disclose to anyone any Confidential Information. The term "Confidential Information" for the purposes of this Agreement shall include all proprietary and confidential information of the CITY, including but not limited to business plans, marketing plans, financial information, materials, compilations, documents, instruments, models, source or object codes, and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in the CITY. (b) Any and all writings and documents prepared or provided by the GRANTEE pursuant to this Agreement, including without limitation grant applications and supporting documents, are the property of the CITY at the time of preparation and shall be turned over to the CITY upon expiration or termination of this Agreement. Copies of grant applications and supporting documents shall be promptly provided to CITY during the term of this Agreement. The GRANTEE shall not permit the reproduction or use thereof by any other person except as otherwise expressly provided herein. (c) If the GRANTEE should subcontract all or any portion of the services to be performed under this Agreement, the GRANTEE shall cause each subcontractor to also comply with the requirements of this Section 6. (d) This Section 6 shall survive expiration or termination of this Agreement. 7. Subcontracting. (a) If the GRANTEE should subcontract all or any portion of the services to be performed under this Agreement, the GRANTEE shall cause each Page 3 subcontractor to also comply with the requirements of this Agreement. (b) This Section 7 shall survive expiration or termination of this Agreement. 8. Indemnification. To the furthest extent allowed by law, the GRANTEE shall indemnify, hold harmless and defend the 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, litigation expenses, and costs to enforce this agreement) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of the GRANTEE, its principals, officers, employees, agents or volunteers in the performance of this Agreement. If the GRANTEE should subcontract all or any portion of the services to be performed under this Agreement, the GRANTEE shall require each subcontractor to indemnify, hold harmless and defend the CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. Notwithstanding the aforementioned, the GRANTEE recognizes that the source of funds for the grant to be provided hereunder is the CITY's allocation from the ARPA. To this end, the GRANTEE shall, without limitation, indemnify the CITY, and each of its officers, officials, employees, agents, and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages incurred by the CITY from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly from the negligent or intentional acts or omissions, or willful misconduct of the GRANTEE or any of its officers, officials, employees, agents, or volunteers in the performance of this Agreement and compliance with the ARPA. This section shall survive termination or expiration of this Agreement. 9. Insurance. (a) Throughout the life of this Agreement, GRANTEE shall pay for and maintain in full force and effect all insurance as required in Exhibit C with insurance company(ies) either (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 his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein 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, GRANTEE 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 Page 4 immediately, and all payments due or that become due to GRANTEE 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 anyway relieve GRANTEE 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 GRANTEE shall not be deemed to release or diminish the liability of GRANTEE, 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 GRANTEE. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of GRANTEE, vendors, suppliers, invitees, contractors, sub -contractors, subcontractors, or anyone employed directly or indirectly by any of them. 10. Conflict of Interest and Non -Solicitation - (a) Prior to the CITY's execution of this Agreement, the GRANTEE shall complete a CITY conflict of interest disclosure statement in the form as set forth in Exhibit "D". During the term of this Agreement, the GRANTEE shall have the obligation and duty to immediately notify the CITY in writing of any change to the information provided by the GRANTEE in such statement. (b) The GRANTEE 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 the CITY, the GRANTEE shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, the GRANTEE and the respective subcontractor(s) are in full compliance with all laws and regulations. The GRANTEE 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, the GRANTEE shall immediately notify the CITY of these facts in writing. (c) In performing the services to be provided hereunder, the GRANTEE shall not employ or retain the services of any person while such person either is employed by the 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) The GRANTEE represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit Page 5 or procure this Agreement or any rights/benefits hereunder. (e) Neither the GRANTEE, nor any of the GRANTEE subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project unless fully disclosed to and approved by the City Manager, in advance and in writing. The GRANTEE 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, the GRANTEE shall remain responsible for complying with Section 10(b), above. (f) If the GRANTEE should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, the GRANTEE shall include the provisions of this Section 10 in each subcontract and require its subcontractors to comply therewith. (g) This Section 10 shall survive expiration or termination of this Agreement. 11. ARPA Comcliance and Certification. The GRANTEE shall submit only seek reimbursement for those expenditures which are eligible for payment and in compliance with the allowable expenditures. The GRANTEE shall provide the CITY with a quarterly expenditure and performance reports, as defined in the Final Rule and Treasury Department's SLFRF Compliance and Reporting Guidance (CRG). The GRANTEE shall also provide an annual report as required under the CRG. These reports shall be in a form specified under the CRG and shall be accompanied by invoices and receipts that substantiate the figures on the expenditure report. Additionally, a certification signed by the Chief Executive or designee of the GRANTEE certifying that the uses of the grant funds are consistent with those allowed under ARPA, shall be included with the expenditure report and substantiating documentation. As applicable, the GRANTEE shall comply with all applicable requirements of 2 CFR Part 200 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, including the provision of a single audit (generally applicable where funding from all federal sources in any fiscal year exceeds $750,000), and to such extent shall submit to the CITY any applicable auditor's reports and audited financial statements no later than three (3) months after the GRANTEE's fiscal year end. The GRANTEE shall be responsible for determining the applicability of the foregoing. As required by the 2 CFR Part 170, Appendix A award term regarding reporting subaward and executive compensation, recipients must also report the names and total compensation of their five most highly compensated executives and their subrecipients' executives for the preceding completed fiscal year if (1) the recipient received 80 percent or more of its annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards), and received $25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act (and subawards), and (2) if the information is not otherwise public. If the GRANTEE is already disclosing this Page 6 information as part of another agreement involving Federal monies, the GRANTEE shall provide documentation to the CITY that it is fulfilling this requirement. The GRANTEE's failure to provide a Certification or provide either the quarterly or annual expenditure/performance reports may be considered a default of this Agreement under Section 5 of this agreement. If the GRANTEE is found to have provided services to ineligible individual, households, or entities or made an ineligible expenditure, the CITY shall have the right to reclaim a dollar amount from the GRANTEE that is equal to the amount determined to be ineligible. 12. General Terms. (a) Except as otherwise provided by law, all notices expressly required of the CITY within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the City Manager or designee. (b) The CITY is required under 2 CFR 200 and 200.332 to manage and monitor the GRANTEE's compliance with the ARPA guidance. Accordingly, the GRANTEE agrees to permit the CITY staff to conduct three performance reviews during the term of this Agreement. The City has the right to conduct additional performance reviews both during the term of this Agreement and after the Agreement's term should the CITY believe these reviews are necessary. Records of the GRANTEE expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the 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. Records related to the GRANTEE's performance metrics shall be made available and retained for the same time periods as the Project's expense data. The GRANTEE shall furthermore comply with all funding requirements as set forth in the ARPA. If the GRANTEE fails to provide the City staff access or documentation necessary to conduct a CITY -requested performance review, the City may terminate this Agreement in accordance with Section 5. In addition, all books, documents, papers, and records of the GRANTEE 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 the CITY until such action is resolved, or until the end of said time period whichever shall later occur. If the GRANTEE should subcontract all or any portion of the services to be performed under this Agreement, the GRANTEE shall cause each subcontractor to also comply with the requirements of this paragraph. This Section 12(b) shall survive expiration or termination of this Agreement. (c) Prior to execution of this Agreement by the CITY, the GRANTEE shall have provided evidence to the CITY that the GRANTEE is licensed to perform the services called for by this Agreement or that no license is required. If the GRANTEE should subcontract all or any portion of the services to be performed under this Agreement, the GRANTEE shall require each subcontractor to provide evidence to the CITY that the subcontractor is licensed to perform the services called for by this Agreement or that no license is required before beginning work. Page 7 13. Nondiscrimination. To the extent required by controlling federal, State, and local law, the GRANTEE shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis 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. Subject to the foregoing and during the performance of this Agreement, the GRANTEE agrees as follows: (a) The GRANTEE 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) The GRANTEE 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. The GRANTEE 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 the GRANTEE'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. The GRANTEE agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. (c) The GRANTEE will, in all solicitations or advertisements for employees placed by or on behalf of the GRANTEE 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) The GRANTEE 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 the GRANTEE's commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (e) If the GRANTEE should subcontract all or any portion of the services to be performed under this Agreement, the GRANTEE shall cause each subcontractor to also comply with the requirements of this Section 13. 14. Independent Contractor. (a) In the furnishing of the services provided for herein, the Page 8 GRANTEE is acting solely as an independent contractor. Neither the GRANTEE, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, partner, or associate of the CITY for any purpose. The CITY shall have no right to control or supervise or direct the manner or method by which the GRANTEE shall perform its work and functions. However, the CITY shall retain the right to administer this Agreement so as to verify that the GRANTEE is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not evidence a partnership or joint venture between the GRANTEE and the CITY. The GRANTEE shall have no authority to bind the CITY absent the CITY's express written consent. Except to the extent otherwise provided in this Agreement, the GRANTEE shall bear its own costs and expenses in pursuit thereof. (c) Because of its status as an independent contractor, the GRANTEE and its officers, agents, and employees shall have absolutely no right to employment rights and benefits available to the CITY employees. The GRANTEE 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, the GRANTEE shall be solely responsible, indemnify, defend and save the CITY harmless from all matters relating to employment and tax withholding for and payment of the GRANTEE'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 the CITY's employment benefits, entitlements, programs and/or funds offered employees of the 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, the GRANTEE may be providing services to others unrelated to the CITY or to this Agreement. 15. 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. 16. 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. 17. Assignment. (a) This Agreement is personal to the GRANTEE and there shall be no assignment by the GRANTEE of its rights or obligations under this Agreement without the prior written approval of the City Manager or designee. Any attempted Page 9 assignment by the GRANTEE, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee. (b) The GRANTEE hereby agrees not to assign the payment of any monies due the GRANTEE from the CITY under the terms of this Agreement to any other individual(s), corporation(s), or entity(ies). The CITY retains the right to pay any and all monies due the GRANTEE directly to the GRANTEE. 18. Compliance With Law. In providing the services required under this Agreement, the GRANTEE shall at all times comply with all applicable laws of the United States, including but not limited to, the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), the State of California and the CITY, and all other 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. 19. 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. 20. 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 another jurisdiction. 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. 21. 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. 22. Severability. 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. Page 10 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. 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 the CITY and the GRANTEE. [SIGNATURES FOLLOW ON NEXT PAGE] Page 11 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day executed below. CITY OF FRESNO, a California municipal cgrporation By: v Name: GE Title: City Date: eanne A. White APPROVED AS TO FORM: ANDREW JANZ City Attorney B: Y Name: TfracyklVarvanian Title: Supervi in Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk By - Nam ►�1'1 • _ Title: S -5V v i ` Addresses: CITY OF FRESNO Planning and Development Department Housing and Community Development Attention: Housing Manager 2600 Fresno Street, Room 3065, Fresno CA 93721 Phone: (559) 621-8500 POVERELLO HOUSE, a Califor rof ration By: r Nam Z ehary rrah Title: Chief xecutiv Officer Date: a Name: Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) POVERELLO HOUSE Attention: Zachary Darrah, CEO 412 F. Street Fresno, CA 93607 Phone: (559) 498-6988 Attachments: Exhibit "A" - Scope of Services Exhibit "B" - Budget Exhibit "C" - Insurance Requirements Exhibit "D" - Conflict of Interest Disclosure Form Page 12 EXHIBIT "A" SCOPE OF SERVICES The Poverello House has awarded a construction contract to Dave Clevenger of PreFab Innovation, Inc., to construct 26 non-traditional housing units to be used as permanent housing. The 26 prefabricated tiny homes will be owned, placed, and operated by the Poverello House. The Poverello House will complete outreach at selected encampment areas to house individuals and families in the prefabricated tiny house units. Page 13 EXHIBIT "B" BUDGET City ARPA $ 964,482 Other $1,000,000 Total Construction Cost: $1,964,482 Page 14 EXHIBIT "C" INSURANCE REQUIREMENTS MINIMUM SCOPE OF INSURANCE Coverage shall be at least as broad as: 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). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. MINIMUM LIMITS OF INSURANCE SUBRECIPIENT, or any party the SUBRECIPIENT 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: COMMERCIAL GENERAL LIABILITY: (i) $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. 3. WORKERS' COMPENSATION INSURANCE as required by the State of California with statutory limits. Page 15 4. EMPLOYER'S LIABILITY: (1) $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 SUBRECIPIENT 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 SUBRECIPIENT shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and SUBRECIPIENT shall also be responsible for payment of any self -insured retentions. Any deductibles or self -insured retentions must be declared to 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) SUBRECIPIENT 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: CITY, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds. SUBRECIPIENT 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 CG 20 10 04 13, CG 20 26 04 13 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. 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 relating to this Agreement, SUBRECIPIENT'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, Page 16 and volunteers shall be excess of SUBRECIPIENT's insurance and shall not contribute with it. SUBRECIPIENT 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 0413. The Workers' Compensation insurance policy is to contain, or be endorsed to contain, the following provision: SUBRECIPIENT 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 (30) calendar days written notice by certified mail, return receipt requested, has been given to CITY. SUBRECIPIENT 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, SUBRECIPIENT 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, SUBRECIPIENT shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. The fact that insurance is obtained by SUBRECIPIENT shall not be deemed to release or diminish the liability of SUBRECIPIENT, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by SUBRECIPIENT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of SUBRECIPIENT, its principals, officers, agents, employees, persons under the supervision of SUBRECIPIENT, vendors, suppliers, invitees, consultant, sub -consultant, subcontractors, or anyone employed directly or indirectly by any of them. SUBCONTRACTORS - If SUBRECIPIENT subcontracts any or all of the services to be performed under this Agreement, SUBRECIPIENT 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, SUBRECIPIENT will be solely responsible for ensuring that its subcontractors meet the insurance requirements contained in this Exhibit B. VERIFICATION OF COVERAGE SUBRECIPIENT 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 his/her designee prior Page 17 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, SUBRECIPIENT 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. Page 18 EXHIBIT "D" 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 `. X❑ 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? Are you or any of your principals, managers, or professionals, 5 related by blood or marriage to any City of Fresno employee 0 who has any significant role in the subject matter of this service? Do you or any of your subcontractors have, or expect to have, 6 any interest, direct or indirect, in any other contract in connection with this Project? * If the answer to any question is yes, please explain in full below. Explanation: ❑ Additional page(s) attached. to re February 1, 2023 Date Zachary D. Darrah (Name) Poverello House (Company) 412 F Street (Address) Fresno, CA 93706 (City, State Zip) Page 19