HomeMy WebLinkAboutBakman Water Company - Grant Agreement - 06.30.23DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8
GRANT AGREEMENT BETWEEN
THE CITY OF FRESNO AND BAKMAN WATER COMPANY REGARDING FUNDING
UNDER THE AMERICAN RESCUE PLAN ACT FOR WATER INFRASTRUCTURE
RELATED TO AFFORDABLE HOUSING PROPERTIES
THIS GRANT AGREEMENT ("Agreement") is made and entered into as of
UAt Q , 2023 (the "Effective Date"), by and between the CITY OF FRESNO (the
"City"), and BAKMAN WATER COMPANY ("GRANTEE"), to provide funding for the
construction of water infrastructure necessary to meet fire suppression requirements for
the Fancher Creek Town Center project ("Project").
RECITALS
WHEREAS, there is an increased need for water infrastructure to meet fire
suppression requirements for two affordable housing complexes in the Project; and
WHEREAS, the City desires to provide funds to assist GRANTEE in providing the
needed water infrastructure to meet safety standards for the development, specifically the
Fancher Creek Water Storage Tank & Booster Pump Station and related facilities
("Improvements"); and
WHEREAS, GRANTEE desires to cause to be constructed the Improvements
necessary to meet fire suppression requirements, which would support completion of the
requirements necessary for the development of FCTC and the 400 affordable housing
projects to be located within FCTC; and
WHEREAS, in connection with the construction of the Improvements, GRANTEE
and Steve Dovali Construction, Inc. ("Contractor") have entered into that certain
Construction Agreement, executed on February 23, 2023. GRANTEE warrants that
Contractor and any subsequently retained subcontractor shall be professionally and
legally capable of construction of these Improvements; and
WHEREAS, the City desires to utilize unappropriated American Rescue Plan Act
(Pub.L. 117-2) (hereinafter "ARPA") affordable housing funds to support the development
of affordable senior housing within the Project; and
WHEREAS, the grant funds being provided under this Agreement will be derived
from the City's allocation under the ARPA, and GRANTEE, Contractor, and any other
subcontractors are subject to any constraints set forth therein including but not limited to,
the Coronavirus State and Local Fiscal Recovery Funds (CSLFRF) Final Rule (31 CFR
Part 35); and
WHEREAS, the City's commitment of funds for the construction of the water
infrastructure improvements are necessary to meet fire suppression requirements and
would support completion of the requirements necessary for the development of the
Project and the 400 affordable housing projects to be located within the Project; and
WHEREAS, the contribution contemplated herein shall be utilized exclusively for
the fulfillment of the hereinabove mentioned health and safety related condition of
approval in the best interests of the citizens of the City, to protect the public health, safety
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and welfare and would be exempted from the Better Business Act (Council Resolution
No. 2009-118); and
WHEREAS, this Agreement will be administered for the City by its City Manager
or its designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and premises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows:
1. Grant Amount. City shall provide GRANTEE the amount of $2,700,000
("Funds") for the services described in Exhibit A, attached hereto. The Funds shall be
distributed to GRANTEE once the Agreement is fully executed. The parties acknowledge
that the Funds may not suffice to cover the entire obligation of FCTC Senior, LP
("Developer") for the Improvements. As to any shortfall GRANTEE intends to execute a
separate agreement between GRANTEE and Developer for payment to GRANTEE, by
Developer, of Developer's portion of the costs of the Improvement, which are in excess
of the Funds; in any event, City shall not be responsible for any shortfall.
2. Scope of Services. GRANTEE shall perform to the reasonable satisfaction
of the City the services described in Exhibit A, attached hereto, including all work
incidental to, or reasonably necessary to perform, such services even though not
specifically described in Exhibit A. Funds may not be expended for any other purpose
but for the construction of water infrastructure to meet fire suppression conditions of
approval enumerated in the Fancher Creek Development Agreement in Exhibit D. Funds
may only be used to pay GRANTEE for the portion of the costs of the Improvements owed
by the Developer. Funds may not be used to pay the portion of the costs which are the
responsibility of GRANTEE. A summary of the estimated costs of the Improvements as
of March 8, 2023, is attached hereto as Exhibit E.
3. Term of Agreement and Time for Performance. This Agreement shall be
effective from the Effective Date through August 31, 2024, subject to earlier termination
in accordance with this Agreement ("Term"). The services as described in Exhibit A are
to commence expeditiously. Should GRANTEE fail to fulfill any condition precedent
necessary for disbursement of funds prior to August 31, 2024, then the City may terminate
the Agreement so that any unused funds may be otherwise obligated as required by
ARPA, no later than December 31, 2024 and expended by December 31, 2026.
4. Amendment to Increase or Decrease Scope of Services: The parties may
modify this Agreement to increase or decrease the scope of services or provide for the
rendition of services not required by this Agreement, which modification may include an
adjustment to the Funds. No alteration or variation of the terms of this Agreement shall
be valid unless made by a formal written amendment executed by the parties hereto.
GRANTEE shall not be entitled to any additional compensation if services are performed
prior to a signed written amendment. At the end of the Term, any portion of the Funds,
not used or expended for the designated purpose, must be immediately refunded to the
City.
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5. Termination. Remedies and Force Maieure.
(a) This Agreement shall terminate without any liability of the City or to
GRANTEE upon the earlier of: (i) GRANTEE filing for protection under the federal
bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third
party against GRANTEE; (ii) seven calendar days prior written notice with or without
cause by the City to 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,
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 unused and
unexpended Funds. Subject to the terms of this Agreement, GRANTEE shall return any
Funds expended for any work or services performed or costs incurred which is
unauthorized and inconsistent with ARPA guidelines (Coronavirus State and Local Fiscal
Recovery Funds (CSLFRF) Final Rule (31 CFR Part 35).
(c) In the event of termination due to failure of GRANTEE to satisfactorily
perform in accordance with the terms of this Agreement, the GRANTEE shall be liable for
return of funds to offset, but not in excess of, the City's damages caused by such failure;
such amount shall not exceed the total amount of Funds distributed to GRANTEE by City.
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 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) GRANTEE shall provide the City with adequate written assurances
of future performance, upon the Administrator's request, in the event GRANTEE fails to
comply with any terms or conditions of this Agreement.
(f) GRANTEE shall be liable for default unless nonperformance is
caused by an occurrence beyond the reasonable control of GRANTEE and without its
gross negligence or willful misconduct, including but not limited to, 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.
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 Administrator of the cessation of such occurrence.
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6, Confidential Information and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by
GRANTEE pursuant to this Agreement (other than information publicly available) shall
not be made available to any individual or organization by GRANTEE without the prior
written approval of the City except as required by law orjudicial order. During the Term,
and thereafter, GRANTEE shall not, without the prior written consent of the City, disclose
to anyone any Confidential Information except as required by law or judicial order. 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
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 the Agreement. Copies of grant
applications and supporting documents shall be promptly provided to City during the
Term. GRANTEE shall not permit the reproduction or use thereof by any other person
except as otherwise expressly provided herein.
(c) If GRANTEE should subcontract all or any portion of the services to
be performed under this Agreement, 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. Professional Skill. It is further mutually understood and agreed by and
between the parties hereto that inasmuch as GRANTEE warrants to the City that
GRANTEE and its subcontractors, if any, are skilled in the profession and shall perform
in accordance with the standards of said profession necessary to perform the services
agreed to be done by it under this Agreement, the City relies upon the skill of the
GRANTEE and any subcontractors to do and perform such services in a skillful manner
and the GRANTEE agrees to thus perform the services and require the same of any
subcontractors. Therefore, any acceptance of such services by the City shall not operate
as a release of GRANTEE or any subcontractors from said professional standards.
8. Indemnification.
Except to the extent caused by City's gross negligence or willful misconduct,
GRANTEE shall indemnify, hold harmless and defend City and each of its officers,
officials, employees, agents and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including but not
limited to personal injury, death at any time and property damage), and from any and all
claims, demands and actions in law or equity (including reasonable attorney's fees and
litigation expenses) that arise out of, pertain to, or relate to the gross negligence, or willful
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misconduct of GRANTEE, its principals, officers, employees, agents or volunteers in the
performance of this Agreement.
If GRANTEE should subcontract all or any portion of the services to be performed
under this Agreement, GRANTEE shall require each subcontractor to indemnify, hold
harmless and defend City and each of its officers, officials, employees, agents and
volunteers in accordance with the terms of the preceding paragraph.
Notwithstanding the aforementioned, 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 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 reasonable attorney's fees and litigation
expenses), arising or alleged to have arisen directly or indirectly from the gross
negligence, or willful misconduct of GRANTEE or any of its officers, officials, employees,
agents, or volunteers in the performance of this Agreement and compliance with ARPA.
This section shall survive termination or expiration of this Agreement.
9. Insurance. GRANTEE shall comply with all of the insurance requirements
in Exhibit B to this Agreement.
10. Conflict of Interest and Non -Solicitation.
(a) Prior to City's execution of this Agreement, GRANTEE shall
complete a City of Fresno conflict of interest disclosure statement in the form as set forth
in Exhibit C. During the Term, GRANTEE shall have the obligation and duty to
immediately notify the City in writing of any change to the information provided by
GRANTEE in such statement.
(b) 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, GRANTEE shall provide a written opinion of its
legal counsel and that of any subcontractor that, after a due diligent inquiry, GRANTEE
and the respective subcontractor(s) are in full compliance with all laws and regulations.
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, GRANTEE shall immediately notify the City of these
facts in writing.
(c) In performing the work or services to be provided hereunder,
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.
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(d) GRANTEE represents and warrants that it has not paid or agreed to
pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this
Agreement or any rights/benefits hereunder.
(e) Neither GRANTEE, nor any of 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.
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, GRANTEE shall remain responsible for complying with
Section 10(b), above.
(f) If GRANTEE should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, 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_ Compliance and Certification. GRANTEE shall submit only those
expenditures which are eligible for payment and in compliance with allowable
expenditures pursuant to any constraints set forth by the Coronavirus State and Local
Fiscal Recovery Funds (CSLFRF) Final Rule (31 CFR Part 35).
GRANTEE shall provide the City with quarterly expenditure and performance
reports, as defined in the Final Rule and Treasury Department's SLFRF Compliance and
Reporting Guidance ("CRG"). 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
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 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) the information is not otherwise public. If the GRANTEE is already
disclosing this information as part of another agreement involving Federal monies,
GRANTEE shall provide documentation to the City that it is fulfilling this requirement.
GRANTEE's failure to provide a Certification, or provide either the quarterly or annual
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expenditure/performance reports may be considered a default of this Agreement under
Section 5 of this agreement. If GRANTEE is found to have provided services to ineligible
individual, households, or entities or made an ineligible expenditure, 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 City by 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 200.332 to manage and monitor
subrecipient compliance with ARPA guidance. Accordingly, GRANTEE agrees to permit
City staff to conduct one performance review during the term of this agreement. 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 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 GRANTEE's performance metrics shall be made
available and retained for the same time periods as the Project's expense data.
GRANTEE shall furthermore comply with all funding requirements as set forth in ARPA.
If GRANTEE fails to provide City staff access or documentation necessary to conduct a
City -requested performance review, City may terminate this Agreement in accordance
with Section 5.
In addition, all non -privileged books, documents, papers, and records of
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 non -privileged records shall be made available
to the City until such action is resolved, or until the end of said time period whichever shall
later occur. If GRANTEE should subcontract all or any portion of the services to be
performed under this Agreement, 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, GRANTEE shall
have provided evidence to the City that GRANTEE is licensed to perform the services
called for by this Agreement (or that no license is required). If GRANTEE should
subcontract all or any portion of the work or services to be performed under this
Agreement, GRANTEE shall require each subcontractor to provide evidence to the City
that subcontractor is licensed to perform the services called for by this Agreement (or that
no license is required) before beginning work.
(d) Prior to disbursement of Funds under this Agreement by the City,
GRANTEE will permit City staff to conduct a subrecipient risk assessment, as required
under the Uniform Guidance (2 CFR 200.332(b)). Failure to allow City staff to conduct
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this subrecipient risk assessment may result in the City terminating this Agreement in
accordance with Section 5. Additionally, the GRANTEE's failure to be certified by City
staff at the end of the risk assessment as having adequate internal controls to manage
the funding provided in this agreement may result in the City terminating this Agreement
in accordance with Section 5.(d) Pursuant to Fresno City Resolution No. 2023-112, a
condition precedent to any distribution of funds by the CITY to GRANTEE requires that
the Developer must annex the Project into the appropriate Community Facilities District
to fund the maintenance and other eligible services pertaining the landscaping, streets,
and other public infrastructure.
(e) The parties hereto acknowledge and agree that the City is making no
representation that development of Developer's Property is not a public work subject to
prevailing wage and that no City employee or representative is authorized to make such
a representation.
13. Nondiscrimination. To the extent required by controlling federal, state, and
local law, 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, GRANTEE agrees as follows:
(a) 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) 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. 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 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. GRANTEE agrees to post in conspicuous
places, available to employees and applicants for employment, notices setting forth the
provision of this nondiscrimination clause.
(c) GRANTEE will, in all solicitations or advertisements for employees
placed by or on behalf of GRANTEE in pursuit hereof, state that all qualified applicants
will receive consideration for employment without regard to race, religious creed, color,
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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) 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 GRANTEE should subcontract all or any portion of the services to
be performed under this Agreement, GRANTEE shall require that each subcontractor also
comply with the requirements of this Section 13.
14. Independent Contractor.
(a) In the furnishing of the services provided for herein, GRANTEE is
acting solely as an independent contractor. Neither 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 GRANTEE shall perform its work
and functions. However, the City shall retain the right to administer this Agreement so as
to verify that 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 GRANTEE and the City. 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, GRANTEE shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, GRANTEE and
its officers, agents, and employees shall have absolutely no right to employment rights
and benefits available to City employees. 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,
GRANTEE shall be solely responsible, indemnify, defend and save the City harmless
from all matters to the extent relating to (i) employment and tax withholding for and
payment of GRANTEE's employees; and (ii) the Funds, 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,
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
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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. &nddiinc. 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 GRANTEE and there shall be no
assignment by GRANTEE of its rights or obligations under this Agreement without the
prior written approval of the City Manager or designee. Any attempted assignment by
GRANTEE, its successors or assigns, shall be null and void unless approved in writing
by the City Manager or designee.
(b) GRANTEE hereby agrees not to assign the payment of any monies
due 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 performance of the services described in Exhibit
A, 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. In addition, GRANTEE
elects to receive funds from the Secretary under ARPA and will use the funds in a manner
consistent with such section.
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.
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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.
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 Partv 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 GRANTEE.
30. Multiple Counterparts and Electronic Signatures. This Agreement may be
executed in multiple counterparts, each of which shall be deemed an original, but all of
which, together, shall constitute but one and the same instrument. The parties
acknowledge that executed copies of this Agreement may be exchanged by facsimile or
other electronic format (e.g. "pdf," "tif," `jpg" or "DocuSign") and that the signatures on
such copies shall be deemed to be effective and valid as original signatures.
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[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY OF FRESNO, BAKMAN WATER COMPANY, a
a California municipal corporation California corporation
pocu5igned by:
By: 6/29/2023 By.
e48YgiM A. White Date
City Manager, City of Fresno
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
DocuSigned by:
6/29/2023
By: fh om.
!4Rhoan Date
Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
fgned by:
odcuS
By: 6 r 6/30/2023
6C A 1388820964U . Date
Deputy
Addresses:
CITY:
City of Fresno — Finance/GMU
Attention: Courtney Espinoza
Business Manager
2600 Fresno Street
Fresno, CA 93721
Phone: (559) 621-7008
FAX: (559) 457-1541
LM
F❑ocri5ir�ned by:
I `K" Eal K'a�' 6/29/2023
Tim Bakman, President
DocuSigned by:
[—S�n bkmat�" 6/29/2023
DMSF8�7D53840A
Shaymus Bakman, Secretary
BAKMAN WATER COMPANY
Attention: Shaymus Bakman
5015 East Belmont Avenue
Fresno, CA 93727
Phone: (559) 255-0324
Attachments:
1. Exhibit A - Scope of Work, Budget and Metrics
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
4. Exhibit D — Fancher Creek Development Agreement
5. Exhibit E — Summary of Estimated Costs of Improvements, as of March 8, 2023
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EXHIBIT A
Scope of Work, Budget and Metrics
Developer is developing a new 180-unit affordable housing property within the Fancher
Creek Town Center and has been unable to meet fire suppression requirements due to a
lack of water infrastructure. This development also consists of an additional affordable
housing complex for a total of 400 affordable housing units. The City will provide the
Funds to GRANTEE for the construction of the Improvements.
Bu
Water infrastructure related to fire su
ion requirements f $2,700,000
Reporting:
Quarterly Reporting regarding the use of the Funds will be required to determine amount
of funding that is expended for the Project. Time periods and due dates listed below.
2023:
• Quarter 3
Effective Date — September 2023 • Due October 13, 2023
• Quarter 4
October 2023 — December 2023 • Due January 12, 2023
2024:
• Quarter 1
January 2024 — March 2024 • Due April 12, 2024
• Quarter 2
April 2024 — June 2024 • Due July 12, 2024
• Quarter 3
July 2024 — September 2024 • October 11, 2024
• Quarter 4
October 2024 — December 2024 . Due January 10, 2025
Monitoring:
Once all expenses have been made, the City of Fresno Grants Management Unit will
conduct a desk audit to ensure all expenses were made in accordance with the
parameters of the grant. Staff will request a general ledger and determine which invoice
copies will be requested for a sampling.
Exhibit A - 1
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