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