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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 Page 1 of 13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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. Page 2 of 13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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. Page 3of13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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 Page 4 of 13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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. Page 5of13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 (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 Page 6 of 13 61650094.v4 DocuSign Envelope ID: CA505BB6-E3A8-4DBC-97EA-F656D962D9A8 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 Page 7 of 13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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, Page 8 of 13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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 Page 9of13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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. Page 10 of 13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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. Page 11 of 13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 [SIGNATURES FOLLOW ON NEXT PAGE] Page 12 of 13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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 Page 13 of 13 61650094.v4 DocuSign Envelope ID: CA505BB8-E3A8-4DBC-97EA-F656D962D9A8 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 61650094.v4