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HomeMy WebLinkAboutAgenda Packet_2023-03-07City Council Meeting Packet March 7, 2023 SPECIAL CLOSED SESSION MEETING - 4:00 PM REGULAR OPEN MEETING - 5:45 PM (Immediately following the Closed Session Meeting) CITY COUNCIL CHAMBER 22 Civic Center Plaza Santa Ana, CA 92701 Valerie Amezcua Mayor Thai Viet Phan Councilmember —Ward 1 Jessie Lopez Mayor Pro Tem - Ward 3 Johnathan Ryan Hernandez Councilmember - Ward 5 Benjamin Vazquez Councilmember - Ward 2 Phil Bacerra Councilmember - Ward 4 David Penaloza Councilmember - Ward 6 Mayor and Council telephone: 714-647-6900 Agenda item inquiries: 714-647-6520 Sonia R. Carvalho Kristine Ridge City Attorney City Manager Jennifer L. Hall City Clerk In compliance with the Americans with Disabilities Act (ADA), if you need special assistance to participate in this Meeting, ®contact Michael Ortiz, City ADA Program Coordinator, at (714) 647-5624. Notification 48 hours prior to the Meeting will enable the City to make reasonable arrangements to assure accessibility to this meeting. The City Council agenda and supporting documentation can be found on the City's website — www.santa-ana.org/city-meetings. City Council 1 3/7/2023 CITY VISION AND CODE OF ETHICS The City of Santa Ana is committed to achieving a shared vision for the organization and its community. The Vision, Mission and Guiding Principles (Values) are the result of a thoughtful and inclusive process designed to set the City and organization on a course that meets the challenges of today and tomorrow, as follows: Vision - The dynamic center of Orange County which is acclaimed for our: Investment in youth • Safe and healthy community • Neighborhood pride • Thriving economic climate - Enriched and diverse culture • Quality government services Mission - To deliver efficient public services in partnership with our community which ensures public safety, a prosperous economic environment, opportunities for our youth, and a high quality of life for residents. Guiding Principles - Collaboration • Efficiency • Equity • Excellence • Fiscal Responsibility - Innovation • Transparency Code of Ethics and Conduct - At the Special Municipal Election held on February 5, 2008, voters approved an amendment to the City Charter which established the Code of Ethics and Conduct for elected officials and members of appointed boards, commissions, and committees to assure public confidence. The following are the core values expressed: - Integrity • Honesty • Responsibility • Fairness • Accountability • Respect • Efficiency City Council 2 3/7/2023 Members of the public may attend the City Council meeting in -person or join via Zoom. The City Council meeting will occur live via teleconference Zoom webinar. You may view the meeting from your computer, tablet or smart phone via YouTube LiveStream at www.youtube.com/user/SantaAnaLibrary or on CTV3, available on Spectrum channel 3. PUBLIC COMMENTS — Members of the public who wish to address the City Council on closed session items, items on the regular agenda or on matters which are not on the agenda, but are within the subject matter jurisdiction of the City Council may do so by one of the following ways: • MAILING OPTION written communications — Public comments may be mailed to: Office of the City Clerk, 20 Civic Center Plaza M-30, Santa Ana, CA 92701. All written communications received via mail by 4:00 p.m. on the day of the meeting will be distributed to the City Council and imaged into the City's document archive system which is available for public review. • SENDING E-MAIL OPTION — Public comments may be sent via email to the City Clerk's office at eComment(@santa-ana.org. Please note the agenda item you are commenting on in the subject line of the email. All emails received before 2:00 p.m. on the day of the meeting will be distributed to the City Council and imaged into the City's document archive system which is available for public review. • LIVE VIRTUAL OPTION — Members of the public may provide live comments during the meeting by Zoom or Conference Call. To join by Zoom click on or type the following address into your web browser https://us02web.zoom.us/'/315965149. To join the Conference Call: Dial (669) 900-9128 and enter MEETING ID: 315 965 149#. You will be prompted by the City Clerk when it is time for a: i) closed session item, ii) general agenda item, iii) public hearing item, iv) special agenda item, or v) for Housing Authority item. You may request to speak by dialing *9 from your phone or you may virtually raise your hand from Zoom. After the Clerk confirms the last three digits of the caller's phone number or Zoom ID and unmutes them, the caller must press *6 or microphone icon to speak. Callers are encouraged, but not required, to identify themselves by name. Each caller will be provided three (3) minutes to speak, unless due to the number of speakers wanting to speak a decision is made to provide a different amount of time to speak. • IN -PERSON OPTION - Members of the public can provide in -person comments at the podium in the Council Chamber. The Council Chamber will have seating available for members of the public to attend the meeting in -person. Public comments are limited to three (3) minutes per speaker, unless a different time is announced by the presiding chair. Speakers who wish to address the Council must do so by submitting a "Request to Speak" card by 4:00 p.m. for Closed Session items and by 6:00 p.m. for all other designated public comment periods as listed below. Cards will not be accepted after the Public Comment Session begins without the permission of the presiding chair. The following designated public comment periods are: 1. LIVE PUBLIC COMMENTS ON CLOSED SESSION ITEMS —You can provide live comments on closed session items by joining Zoom or the Conference Call as described in City Council 3 3/7/2023 the LIVE or IN -PERSON PUBLIC COMMENTS OPTION above. Speaker queue will open at 3:30 p.m. YOU MUST JOIN ZOOM OR THE CONFERENCE CALL BY 4:00 p.m. Speakers who are not in the speaker queue by 4:00 p.m. will not be permitted to speak. 2. LIVE PUBLIC COMMENTS ON REGULAR AGENDA ITEMS AND NON -AGENDA ITEMS (GENERAL PUBLIC COMMENT) —You can provide comments by joining Zoom or the Conference Call as described in the LIVE or IN -PERSON PUBLIC COMMENTS OPTION above. Speaker queue will open at 3:30 p.m. YOU MUST JOIN ZOOM OR THE CONFERENCE CALL PRIOR TO 6:00 p.m. Speakers who are not in the speaker queue by 6:00 p.m. will not be permitted to speak. About the Agenda To download or view the attachments (staff report and other supporting documentation) for each agenda item, you must select the agenda item to see the attachments to either open in a new link (the eyeball ) or download a pdf (the cloud symbol with the down arrow , ). 41 City Council 4 3/7/2023 CALL TO ORDER ATTENDANCE ROLL CALL SPECIAL CLOSED SESSION Council Members Phil Bacerra Johnathan Ryan Hernandez David Penaloza Thai Viet Phan Benjamin Vazquez Mayor Pro Tern Jessie Lopez Mayor Valerie Amezcua City Manager Kristine Ridge City Attorney Sonia R. Carvalho City Clerk Jennifer L. Hall PUBLIC COMMENTS — Members of the public may address the City Council on Closed Session items. CLOSED SESSION ITEMS — The Brown Act permits legislative bodies to discuss certain matters without members of the public present. The City Council finds, based on advice from the City Attorney, that discussion in open session of the following matters will prejudice the position of the City in existing and anticipated litigation: CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION pursuant to Paragraph (1) of subdivision (d) of Section 54956.9 of the Government Code: A. City of Santa Ana v. Rim Pacific Investors Portofino, LLC, Orange County Superior Court, Case No. 30-2021-01221615 B. City of Santa Ana v. Dyer 18 LLC, Orange County Superior Court, Case No. 30- 2022-01248172 C. City of Santa Ana v. Dyer 18 LLC, United States District Court, Case No. 8:22-cv- 00433 D. Santa Ana Police Officers Association and Gerry Serrano v. City of Santa Ana. Santa Ana Police Department, David Valentin, Kristine Ridge, Sonia Carvalho and Jason Motsick, Orange County Superior Court Case No. 30-2021-01230129-CU-OE- CJC E. Santa Ana Police Officers Association and Doe Officers v. David Valentin, Sonia Carvalho, Kristine Ridge. City of Santa Ana, Santa Ana Police Department, Santa Ana City Attorney's Office, Orange County Superior Court Case No. 30-2021-01230134- CU-WT-CJC F. Santa Ana Police Officers Association v. City of Santa Ana, PERB Case No. LA- CE-1620-M G. Santa Ana Police Officers Association v. City of Santa Ana. Council of the City of City Council 5 3/7/2023 Santa Ana. and Norma Orozco, Orange County Superior Court Case No. 30-2022- 01298807-CU-WM-CJC H. Gerry Serrano v. City of Santa Ana, WCAB Case No. ADJ5249990 2. CONFERENCE WITH LABOR NEGOTIATOR pursuant to Government Code Section 54957.6(a): Agency Negotiators: Human Resources Executive Director, Jason Motsick Employee Organizations: • Santa Ana Police Officers Association (POA) • Service Employees' International Union (SEIU) Full -Time Employees • Confidential Association of Santa Ana (CASA) • Santa Ana Management Association (SAMA) 3. CONFERENCE WITH REAL PROPERTY NEGOTIATOR pursuant to Government Code Section 54956.8: A. Property Address: 201 S. Mountain View and 4320 W. 1 st Street, Santa Ana, CA 92704, APN: 188-021-10 and 188-021-11 Negotiators: City Manager Kristine Ridge Negotiating Party: Charles Akoboff Family Trust, the Lucik Akoboff Revocable Trust and Anna Poladian Trust Terms: Potential Acquisition CLOSED SESSION REPORT — The City Attorney will report on any action(s) to be taken at the Regular Open Session which will begin immediately following the Closed Session. RECESS — City Council will recess to Closed Session for the purpose of conducting regular City business. RECONVENE — City Council will reconvene to continue regular City business. City Council 6 3/7/2023 CITY COUNCIL REGULAR OPEN SESSION CALL TO ORDER ROLL CALL PLEDGE OF ALLEGIANCE Mayor Amezcua WORDS OF INSPIRATION Pastor Ivan Pitts CEREMONIAL PRESENTATIONS 1. Certificates of Recognition presented by Mayor Amezcua to the City's Executive Assistants and Executive Secretaries in Honor of Women's History Month. 2. Proclamation presented by Councilmember Bacerra declaring March 2023 as Arts in Education Month. CLOSED SESSION REPORT — The City Attorney will report on any action(s) from Closed Session. PUBLIC COMMENT — Public comments will be held during the beginning of the meeting for ALL comments on agenda and non -agenda items, with the exception of public hearings. Comments for public hearings will take place after the hearing is opened. I CONSENT CALENDAR RECOMMENDED ACTION: Approve staff recommendations on the following Consent Calendar Items: 3 through 16. 3. Excused Absences Department(s): City Clerk's Office Recommended Action: Excuse the absent members. 4. Appoint David Crockett Nominated by Mayor Pro Tern Lopez as the Ward 3 Representative to the Personnel Board for a Partial -Term Expiring December 10, 2024 Department(s): City Clerk's Office Recommended Action: Appoint David Crockett to the Personnel Board as the Ward 3 representative and administer Oath of Office. 5. Appoint Carlos Perea Nominated by Councilmember Vazquez as the Ward 2 Representative to the Police Oversight Commission for a Full -Term Expiring December 8, 2026 Department(s): City Clerk's Office Recommended Action: Appoint Carlos Perea to the Police Oversight Commission City Council 7 3/7/2023 as the Ward 2 representative and administer Oath of Office. 6. Receive and File Quarterly Report of Investments as of December 31, 2022 Department(s): Finance and Management Services Recommended Action: Receive and file. 7. Receive and File Quarterly Report of Contracts up to $50,000 for Non -Public Works and up to $250,000 for Public Works Authorized by the City Manager as Permitted by Charter Section 421 Department(s): Finance and Management Services Recommended Action: Receive and file Quarterly Report of Contracts entered into between October 1, 2022 to December 31, 2022, valued at up to $50,000 for non- public works contracts and agreements and up to $250,000 for public works contracts and agreements. 8. Final Payment to Naphcare, Inc. in the amount of $66,772 for Inmate Medical Services (General Fund) Department(s): Police Department Recommended Action: Authorize final payment to Naphcare, Inc. for past services rendered in the amount of $66,772. 9. Award Blanket Order Contracts to HD Supply, Snap -on, WESCO Distribution, Inc; and White Cap, LP for Maintenance, Repair, and Operating Supplies and Equipment in the Annual not to Exceed Aggregate Amount of $565,000 for a One -Year Term Ending on March 31, 2024, with Provisions for up to Five Additional One -Year Renewal Periods (Specification No. 23-015) (General Fund) Department(s): Public Works Agency Recommended Action: Award a blanket order contract to vendors listed below for as -needed maintenance, repair, operating supplies, and equipment for a one-year term ending on March 31, 2024, with provisions for up to five one-year renewal periods in accordance with each vendor's respective contract terms and conditions, subject to non -substantive changes approved by the City Manager and City Attorney. The annual aggregate not -to -exceed amount is $565,000, with a total aggregate not -to -exceed amount of $3,390,000 for the entire term, including renewal periods exercisable by the City Manager. HD Supply, San Diego, CA Snap-On, Kenosha, WI WESCO Distribution, Inc., Pittsburgh, PA White Cap, LP., Orlando, FL 10. Award a Construction Contract to Excel Paving Co. in the Amount of $1,798,800.00 City Council 8 3/7/2023 for the West Willits Protected Bike Lanes from Fairview Street to Raitt Street Project, with an Estimated Project Delivery Cost of $2,277,000.00 (Project No. 19-6948, ATPSBL-5063(195)) (Non -General Fund) Department(s): Public Works Agency Recommended Action: 1. Award a construction contract to Excel Paving Co., the lowest responsible bidder, in accordance with the base bid in the amount of $1,798,800.00, for construction of the West Willits Protected Bike Lanes from Fairview Street to Raitt Street Project, for a term beginning March 7, 2023 and ending upon project completion, and authorize the City Manager to execute the contract subject to non -substantive changes approved by the City Manager and the City Attorney. 2. Approve the Project Cost Analysis for a total estimated construction delivery cost of $2,277,000.00, which includes $1,798,800.00 for the construction contract, $270,000.00 for contract administration, inspection and testing, and a $208,200.00 project contingency for unanticipated or unforeseen work. 11. Approve an Amendment to the FY 2022-23 Capital Improvement Program for $752,471.25 and Award a Construction Contract to International Line Builders, Inc. in the Amount of $601,977.00 for the Saddleback View Neighborhood Street Lighting Project, with an Estimated Project Delivery Cost of $752,471.25 (Project No. 22- 6017) (General Fund) Department(s): Public Works Agency Recommended Action: 1. Approve an amendment to the FY 2022-23 Capital Improvement Program to include $752,471.25 in construction funds for the Saddleback View Neighborhood Street Lighting Project (Project No. 22-6017). 2. Award a construction contract to International Line Builders, Inc., the lowest responsible bidder, in accordance with the base bid in the amount of $601,977.00, for construction of the Saddleback View Neighborhood Street Lighting Project, for the term beginning March 7, 2023, and ending upon project completion, and authorize the City Manager to execute the contract subject to non -substantive changes approved by the City Manager and the City Attorney. 3. Approve the Project Cost Analysis for a total estimated construction delivery cost of $752,471.25, which includes $601,977.00 for the construction contract, $90,296.55 for contract administration, inspection and testing, and a $60,197.70 project contingency for unanticipated or unforeseen work. 12. Approve an Appropriation Adjustment, and Award a Construction Contract to Elecnor Belco Electric, Inc., in the Amount of $493,244.76 for the Bristol Street and Santa Clara Avenue Traffic Signal Installation Project with an Estimated Project Delivery Cost of $616,555.95 (Project No. 22-6995) (Non -General Fund) Department(s): Public Works Agency Recommended Action: 1. Approve an appropriation adjustment recognizing $297,100 in FY 2022-23 Highway Safety Improvement Program, State Grant -Direct City Council 9 3/7/2023 funds into the Public Services Street Safety Projects, Improvements Other Than Building expenditure account. (Requires five affirmative votes) 2. Award a construction contract to Elecnor Belco Electric, Inc., the lowest responsible bidder, in accordance with the base bid in the amount of $493,244.76, for construction of the Bristol Street and Santa Clara Avenue Traffic Signal Installation Project, for the term beginning March 7, 2023, and ending upon project completion, subject to non -substantive changes approved by the City Manager and City Attorney. 3. Approve the Project Cost Analysis for a total estimated construction delivery cost of $616,555.95, which includes $493,244.76 for the construction contract; $73,986.71 for contract administration, inspection and testing; and a $49,324.48 project contingency for unanticipated or unforeseen work. 4. Approve an amendment to the FY 2022-23 Capital Improvement Program to include $297,100 in construction funding from Highway Safety Improvement Program grant funds and $320,000 in construction funding from General Funds approved in FY 22-23 proposed budget for the Bristol Street and Santa Clara Avenue Traffic Signal Modification. 13. Approve a Loan Agreement with North Broadway Housing Partners LP (C/O Jamboree Housing Corporation and WISEPIace) for a total of $5,256,327 for the Development of the WISEPIace Permanent Supportive Housing Project Located at 1411 N Broadway; Approve a Subordination Agreement with Bank of America as the Senior Lender; Approve Two (2) Subordination Agreements with the County of Orange and the Orange County Housing Finance Trust, Respectively, as Junior Lenders (Non -General Fund) Department(s): Community Development Agency Recommended Action: 1. Authorize the City Manager to execute a Loan Agreement with North Broadway Housing Partners LP (c/o Jamboree Housing Corporation and WISEPIace) for $5,256,327 in HOME Investment Partnerships Program - American Rescue Plan ("HOME -ARP") funds for the development of the WISEPIace Permanent Supportive Housing project located at 1411 N. Broadway, Santa Ana, CA 92701, APN 398-523-04 ("Site") subject to non -substantive changes approved by the City Manager and City Attorney (Agreement No. A-2023-XXX). 2. Authorize the City Manager to execute a Subordination Agreement with Bank of America to subordinate the City's Loan Agreement to a senior loan, subject to non - substantive changes approved by the City Manager and City Attorney (Agreement No. A-2023-XXX). 3. Authorize the City Manager to execute two (2) Subordination Agreements with the County of Orange ("County") and Orange County Housing Finance Trust ("OCHFT), respectively, to subordinate the County and OCHFT's junior loan agreements to the City's HOME -ARP Loan Agreement, subject to non -substantive changes approved by the City Manager and City Attorney (Agreement Nos. A-2023-XXX and A-2023-XXX). 4. Authorize the City Manager to execute a future Subordination Agreement with Jamboree Housing Corporation, WISEPIace, Bank of America and/or any other senior lender as needed after the WISEPIace Permanent Supportive Housing project City Council 10 3/7/2023 is complete, subject to approval as to form by the City Attorney (Agreement No. 2023- XXX). 14. Resolution Accepting the In -Kind Donation for the Repair and Resurfacing of the Basketball Court at Portola Park Department(s): Parks, Recreation, and Community Services Recommended Action: 1. Adopt Resolution No. 2023-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ACCEPTING THE DONATION OF THE REPAIR AND RESURFACING OF THE BASKETBALL COURT AT PORTOLA PARK 2. Authorize the City Manager to execute donation agreement with Project Backboard for the repair and resurfacing of a basketball court, valued at approximately $75,000, with no cost to the City, for the period of March 7, 2023 through April 30, 2023, subject to non -substantive changes approved by the City Manager and City Attorney (Agreement No. 2023-XXX). 15. Adopt a Resolution Authorizing Grant Application Submission for California Department of Water Resources 2022 Urban and Community Drought Relief Grant Program (Non -General Fund) Department(s): Public Works Agency Recommended Action: Adopt Resolution No. 2023-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE GRANT APPLICATION, ACCEPTANCE, AND EXECUTION FOR THE WELL 38 WELLHEAD TREATMENT PROJECT AND WEST STATION WELL PROJECT 16. A Resolution of the City Council of the City of Santa Ana Affirming its Dedication and its Priority to Protect the Health, Safety and Welfare of Its Residents, Visitors, and Business Owners in the Enforcement of State Sidewalk Vendor Regulations, the Federal Americans With Disabilities Act of 1990 and Other Disability Access Standards, and All Local Regulations Pertaining to the Use and Maintenance of Public Sidewalks and Other Pedestrian Pathways, and Urging the State Legislature of the State of California to Amend State Law and Allow Local Jurisdictions the Right of Self -Determination to Enact Local Sidewalk Regulations Department(s): Planning and Building Agency Recommended Action: Adopt Resolution No. 2023-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AFFIRMING ITS DEDICATION AND ITS PRIORITY TO PROTECT THE HEALTH, SAFETY AND WELFARE OF ITS RESIDENTS, VISITORS, AND BUSINESS OWNERS IN THE ENFORCEMENT OF STATE SIDEWALK VENDOR REGULATIONS, THE FEDERAL AMERICANS WITH City Council 11 3/7/2023 DISABILITIES ACT OF 1990 AND OTHER DISABILITY ACCESS STANDARDS, AND ALL LOCAL REGULATIONS PERTAINING TO THE USE AND MAINTENANCE OF PUBLIC SIDEWALKS AND OTHER PEDESTRIAN PATHWAYS, AND URGING THE STATE LEGISLATURE OF THE STATE OF CALIFORNIA TO AMEND STATE LAW AND ALLOW LOCAL JURISDICTIONS THE RIGHT OF SELF- DETERMINATION TO ENACT LOCAL SIDEWALK REGULATIONS **END OF CONSENT CALENDAR** I BUSINESS CALENDAR 17. Ordinance Amending Article XI Of Chapter 33 Of The Santa Ana Municipal Code (Streets Sidewalks And Public Works) Related To Ceremonial Street Naming Department(s): Public Works Agency Recommended Action: Approve first reading of an ordinance amending Article XI of Chapter 33 of the Municipal Code relating to ceremonial street naming. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING ARTICLE XI OF CHAPTER 33 OF THE SANTA ANA MUNICIPAL CODE (STREETS, SIDEWALKS AND PUBLIC WORKS) RELATING TO CEREMONIAL STREET NAMING 18. Senior Citizens Commission Informational Report Department(s): Parks, Recreation, and Community Services Recommended Action: Accept informational report and provide direction to staff. **END OF BUSINESS CALENDAR** I WORK STUDY SESSION 19. Environmental Sanitation and Roadway Cleaning Fee Work Study Session Department(s): Public Works Agency Recommended Action: Discuss and provide direction to staff. COUNCILMEMBER REQUESTED ITEMS 20. Discuss and Consider Directing the City Manager and City Attorney to Direct Staff to City Council 12 3/7/2023 Prepare an Ordinance Amending Section 8-6 of the Municipal Code to Increase Transparency and Accountability Regarding Contractor and Subcontractor Disclosures — Councilmember Phan 21. Discuss and Consider Directing the City Manager to Direct Staff to Explore the Feasibility of the Conversion of the City of Santa Ana -Owned Parcels within the River View Golf Course to Parkland — Mayor Pro Tern Lopez and Councilmember Hernandez CITY MANAGER COMMENTS COUNCIL COMMENTS AB1234 DISCLOSURE — If the City paid for travel or other expenses this is the time for members of the Council to provide a brief oral report on attendance of any regional board or commission meeting or any conference, meeting or event attended. ADJOURNMENT —Adjourn the City Council meeting. Future Items 1. Sunshine Ordinance — Work Study Session City Council 13 3/7/2023 Finance and Management Services www.santa-ana.org/finance Item # 6 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Periodic Quarterly Report of Investments as of December 31, 2022 AGENDA TITLE: Receive and File Quarterly Report of Investments as of December 31, 2022 RECOMMENDED ACTION Receive and file. DISCUSSION California Code Section 53646 (b) states that if a quarterly report is rendered to the legislative body, the quarterly investment report shall be submitted within 30 days following the end of the quarter covered by the report. In an effort to meet the statutory requirement, Finance & Management Services Agency ("FMSA") submits the Report via email for review and distribution to the City Council in advance. The report was emailed for distribution on January 24, 2023. The legislation specifies that this quarterly report contain the seven major elements listed below: 1. Type of investments 2. Date of maturity 3. Par and dollar amounts invested in each security 4. Weighted average maturity of the investments 5. Market value as of the date of the report 6. Source of the market value information 7. Any funds, investments or programs, including loans, under the management of contracted parties These specifications include a statement outlining the ability of the City to meet the budgeted expenditures for the subsequent six months be submitted to the City Council on a quarterly basis. Staff performs an end -of -month expenditure analysis to comply with the expenditure requirement and a statement confirming the ability to meet this requirement in the monthly and quarter -ending Treasurer's Report. The information is in compliance with State law and the City's Investment Policy. The attached Treasurer's Report (Exhibit 1) accurately reflects all pooled investments held on behalf of the City as of December 31, 2022. City Council 6-1 3/7/2023 Quarterly Report of Investments March 7, 2023 Page 2 The attached Cash held by Bank and Cash held by Fund(s) Listing (Exhibit 2) is a schedule of cash by funds added to the monthly and quarterly Report of Investments to enhance FMSA's reporting and transparency. The following two tables represent: (1) percentage limits set by the City's Investment Policy and State Law and shows respective City investment portfolio investment types, amounts, and percentages; and (2) the restricted cash balance as of December 31, 2022. Type of Investment Amounts Invested $ Portfolio % COSA Policy Limits State Law Limits Certificates of Deposit CDs $6,696,000 1.38% 30% 30% Federal Farm Credit Bank FFCB $57,912,510 11.93% None None Federal Home Loan Bank FHLB $225,225,370 46.41 % None None Federal Home Loan Mortgage Corp.FHLMC) $44,993,750 9.27% None None Federal National Mortgage Association FNMA $59,956,530 12.35% None None Local Agency Investment Fund LAIF $18,811,639 3.88% None None Local Agency Investment Fund LAIF — ARPA $66,706,745 13.75% None None U.S. Treasury $4,990,000 1.03% None None Sub- Total: $485,292,544 100% None None Cash : $30,998,545 Total: $516,291,089 Restricted Cash In $ Restricted Cash t, $12,733,417 Total $12,733,417 t Restricted cash is held by various Trustees such as Bank of New York Mellon; US Bank; Signature Bank; and State of California Condemnation Fund. Restricted Cash is segregated from cash used for daily operations. The following City investment portfolio graph represents percentages within the ecuve Invesmmeni U.S. Treasury. 1.03% Local Agency Investment Fund (ARPA) 13.75% Local Agency Investment Fund (LAIF) as oT UecemDer .3-1. LULL. City of Santa Ana Investment Portfolio December 31, 20 Federal National lop Mortgage Association I (FNMA) Federal Home Loaa 12.35% Mortgage Corp. (FHLMC) 9.27% Certificates of Deposit (CD) 1.38 % Federal Farm Credit Bank (FFCB) 11.93% Federal Home Loan Bank (FHLB) 46.41% City Council 6-2 3/7/2023 Quarterly Report of Investments March 7, 2023 Page 3 The following two tables represent, as of December 31, 2022: (1) the aggregate Average Market Yield To Date (AMTD); and (2) the breakdown of by investment type. Aggregate Average Market Yield To Date Average Month To Date (AMTD) 11.348% Investments Book Value of Investments YTM % Of Portfolio Certificates of Deposit $6,696,000 1.181 % 1.38% 0.016% LAIF $18,811,638.93 2.173% 3.88% 0.084% LAIF ARPA $66,706,744.67 2.173% 13.75% 0.299% Federal Agency Securities $388,088,160.25 1.163% 79.97% 0.93006 U.S. Treasury $4,990,000 1.839% 1.03% 0.019% $485,292,544 1.348% 100.00% 1.348% Cash held by Bank and Cash by Fund(s) Listing (Exhibit 2) The above -referenced exhibit (Exhibit 2) includes a comparison of bank balances between each City Cash account including Investments; Cash held at a City designated financial institution; Cash on Hand; and Restricted Cash versus the Cash held by various Fund(s). FISCAL IMPACT There is no fiscal impact associated with this action. EXHIBIT(S) 1. Treasurer's Report 2. Cash Held by Bank and Cash Fund(s) Listing Submitted By: Kathryn Downs, FMSA Executive Director Approved By: Kristine Ridge, City Manager City Council 6-3 3/7/2023 Finance and Management Services www.santa-ana.org/finance Item # 6 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Periodic Quarterly Report of Investments as of December 31, 2022. AGENDA TITLE: Receive And File Quarterly Report Of Investments As Of December 31, 2022 RECOMMENDED ACTION Receive and file. DISCUSSION California Code Section 53646 (b) states that if a quarterly report is rendered to the legislative body, the quarterly investment report shall be submitted within 30 days following the end of the quarter covered by the report. In an effort to meet the statutory requirement, Finance & Management Services Agency ("FMSA") submits the Report via email for review and distribution to the City Council in advance. The report was emailed for distribution on January 24, 2023. The legislation specifies that this quarterly report contain the seven major elements listed below: 1. Type of investments, 2. Date of maturity, 3. Par and dollar amounts invested in each security, 4. Weighted average maturity of the investments, 5. Market value as of the date of the report, 6. Source of the market value information, and 7. Any funds, investments or programs, including loans, under the management of contracted parties. These specifications include a statement outlining the ability of the City to meet the budgeted expenditures for the subsequent six months be submitted to the City Council on a quarterly basis. Staff performs an end -of -month expenditure analysis to comply with the expenditure requirement and a statement confirming the ability to meet this requirement in the monthly and quarter -ending Treasurer's Report. The information is in compliance with State law and the City's Investment Policy. The attached Treasurer's Report (Exhibit 1) accurately reflects all pooled investments held on behalf of the City as of December 31, 2022. City Council 6-4 3/7/2023 Quarterly Report of Investments March 7, 2023 Page 2 The attached Cash held by Bank and Cash held by Fund(s) Listing (Exhibit 2) is a schedule of cash by funds added to the monthly and quarterly Report of Investments to enhance FMSA's reporting and transparency. The following two tables represent: (1) percentage limits set by the City's Investment Policy and State Law and shows respective City investment portfolio investment types, amounts, and percentages; and (2) the restricted cash balance as of December 31, 2022. Type of Investment Amounts Invested $ Portfolio % COSA Policy Limits State Law Limits Certificates of Deposit CDs $6,696,000 1.38% 30% 30% Federal Farm Credit Bank FFCB $57,912,510 11.93% None None Federal Home Loan Bank FHLB $225,225,370 46.41% None None Federal Home Loan Mortgage Corp.FHLMC) $44,993,750 9.27% None None Federal National Mortgage Association FNMA $59,956,530 12.35% None None Local Agency Investment Fund LAIF $18,811,639 3.88% None None Local Agency Investment Fund LAIF — ARPA $66,706,745 13.75% None None U.S. Treasury $4,990,000 1.03% None None Sub- Total: $485,292,544 100% None None Cash : $30,998,545 Total: $516,291,089 Restricted Cash In $ Restricted Cash t, $12,733,417 Total $12,733,417 t Restricted cash is held by various Trustees such as Bank of New York Mellon; US Bank; Signature Bank; and State of California Condemnation Fund. Restricted Cash is segregated from cash used for daily operations. The following City investment portfolio graph represents percentages within the respective investment types as of December 31, 2022. City Council 6-5 3/7/2023 Quarterly Report of Investments March 7, 2023 Page 3 U.S.Treasury 1.03 % Local Agency Investment Ft (LAIF) Federal National Mortgage Association (FNMA) Federal) 12.35% Mortgage C 9— ,. City of Santa Ana Investment Portfolio December 31, 2037,, Certificates of Deposit (CD) 1.38% Federal Farm Credit Bank (FFCB) 11.93% The following two tables represent, as of December 31, 2022: (1) the aggregate Average Market Yield To Date (AMTD); and (2) the breakdown of by investment type. Aggregate Average Market Yield To Date Average Month To Date (AMTD) 1 1.348% Investments Book Value of Investments YTM % Of Portfolio Certificates of Deposit $6,696,000 1.181 % 1.38% 0.016% LAIF $18,811,638.93 2.173% 3.88% 0.084% LAIF ARPA $66,706,744.67 2.173% 13.75% 0.299% Federal Agency Securities 1 $388,088,160.25 1 1.163% 1 79.97% 1 0.930% U.S. Treasury $4,990,000 1.839% 1.03% 0.019% $485,292,544 1.348% 100.00% 1.348% Cash held by Bank and Cash by Fund(s) Listing (Exhibit 2) The above -referenced exhibit (Exhibit 2) includes a comparison of bank balances between each City Cash account including Investments; Cash held at a City designated financial institution; Cash on Hand; and Restricted Cash versus the Cash held by various Fund(s). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact associated with this action. City Council 6-6 3/7/2023 Quarterly Report of Investments March 7, 2023 Page 4 EXHIBIT(S) 1. Treasurer's Report 2. Cash Held by Bank and Cash Fund(s) Listing Submitted By: Kathryn Downs, FMSA Executive Director Approved By: Kristine Ridge, City Manager City Council 6-7 3/7/2023 EXHIBIT 2 Quarterly Report of Investments as of December 31, 2022 Exhibit 2 - Cash held by Bank and Cash by Fund(s) Listing Investments Amount Certificates of Deposit 6,696,000 Bank of New York Mellon - Investment Custodian 393,078,160 Local Agency Investment Fund (L.A.I.F) 18,811,639 Local Agency Investment Fund (L.A.I.F) - ARPA 66,706,745 Total - Investments 485,292,544 Cash Held at City Financial Institution(s) and Cash on Hand Amount General Account 22,336,880 General Liability Account 2,086,738 Housing Account 3,834,901 Workers Compensation Account 1,194,162 Santa Ana Federal Credit Union - Family Self Sufficiency (FSS-Housing) 713,224 Commissary Account 374,503 Flexible Benefit Spending Account 338,031 Property Management Account 35,084 Property Management - Phase 2 Account 1,493 Petty Cash 83,529 Total - Cash Held at City Financial Institution(s) and Cash on Hand 30,998,545 Restricted Cash Amount Signature Bank - Streetlight Project 1,268,870 US Bank - Pension Stability Funds (Section 115 Trust with PARS) 10,178,410 Bank of New York Mellon - Various 139,253 US Bank - Warner Industrial Community 105,345 State of California Condemnation Fund - Right of Way Deposits 1,041,525 US Bank - Gas Tax Bonds 14 Total- Restricted Cash 12,733,417 Total Cash Held City at Financial Institution(s), Cash on Hand and Restricted Cash 529,024,506 Cash by Fund(s) - Total (see below for listing) 529,024,506 Fund Fund description Amount 011 GENERAL FUND 98,759,541 012 CANNABIS PUBLIC BENEFIT 25,615,302 016 CASP CERTIFICATION & TRAINING 356,252 020 OTS-TRAFFIC OFFENDER PROGRAM 26,780 021 PRCSA CATV FUND 1,816,336 022 PRCSA FEE & DONATION 1,012,903 023 INMATE WELFARE FUND 1,915,725 024 PD ATHLETIC ACTIVITIES LEAGUE (157,711) 025 IDB & EZ VOUCHER MONITORING 237,948 026 ASSET FORFEITURE FUND 173,913 027 PARKING FUND 1,960,906 029 SPECIAL GAS TAX 24,164,869 030 PROP 1B BOND ACT OF 2006 154,371 031 AIR QUALITY IMPR. (AB 2766) 2,076,602 032 MEASURE M-STREET CONSTRUCTION (10,172,932) 033 NEW TRANSPO SYS IMPR AREA B 577,212 034 NEW TRANSPO SYS IMPR AREA E 1,502,693 035 NEW TRANSPO SYS IMPR AREA F 1,769,950 040 GENERAL FIXED ASSETS - 041 TRANSP SYS IMPR AREA A-2 702,610 042 TRANSPO SYS IMPR AREA B 9,620 048 TRANSPO SYS IMPR AREA C-2 214,877 049 TRANSPO SYS IMPR AREA G 99,040 051 CAPITAL OUTLAY FUND 3,973,876 053 CITY SERVICES 7,744,128 054 SANITARY SEWER CAPITAL 13,198,329 055 SEWER CONNECTION FEE 6,397,941 056 SANITARY SEWER SERVICE 7,880,641 057 FED CLEAN WATER PROTECTION ENT 4,575,772 058 RESIDENTIAL STREET IMPROVEMENT 5,659,173 059 SELECT STREET CONSTRUCTION 24,727,376 060 WATER REVENUE 33,041,991 066 ACQUISITION & CONSTRUCTION 4,241,310 067 REGIONAL TRANSP CENTER 418,044 City Council 6-8 Page 1 of 3 3/7/2023 Quarterly Report of Investments as of December 31, 2022 Exhibit 2 - Cash held by Bank and Cash by Fund(s) Listing 068 069 070 071 073 074 075 076 078 080 081 082 083 085 086 087 088 089 090 093 094 095 096 097 100 101 103 104 106 107 109 110 120 121 122 123 124 125 127 128 130 131 133 135 136 137 138 139 140 142 143 144 145 147 148 149 152 153 154 155 157 158 160 161 162 164 165 166 167 169 170 172 175 176 SANITATION FUND 6,063,662 REFUSE COLLECTION SERVICE 6,474,839 EQUIPMENT REPLACEMENT FUND 8,119,795 CENTRAL SERVICES 120,352 BUILDING MAINT FUND 1,894,337 CIVIC CENTER MAINTENANCE (1,599,810) FLEET MAINTENANCE/STORES 17,425 STORES & PROPERTY CONTROL (594,952) RETIREMENT SYSTEM (4,160,181) LIABILITY AND PROPERTY INS FND 12,020,948 EMPLOYEE GROUP INSURANCE 803,889 WORKERS COMPENSATION FUND 17,677,733 PAYROLL REVOLVING 7,496,976 CITY YARD OPERATION (297,563) PUB WKS ENG/PROJ MGMT (592,576) PT RETIREMENT FUND 8,964 QUALITY SERVICE TRAINING 192,418 CA SEISMIC HAZARD PROGRAM 20,266 ORANGE CO SANITATION DIST 2&3 2,334,274 BUSINESS IMPROVEMENT DISTRICT 182,720 INTEREST AGENCY - POLICE COMMISSARY ACCOUNT 308,466 SA TOURISM MARKETING DISTRICT 239,291 POLICE SEIZED ASSETS 1,726,457 SECTION 457 FIDUCIARY ADMIN 61,612 PUB WKS-ADMIN & PLANNING 2,917,095 PMA RETIREE HEALTH INSURANCE 17,121 SEIU RETIREE HEALTH INSURANCE 166,433 MGMT RETIREE HEALTH INSURANCE 24,467 UC RETIREE HEALTH INSURANCE 1,972 INFO SYS STRATEGIC PLAN 13,063,902 STRONG MOTION INSTRUMENTATION 104,351 FIRE FACILITIES FUND 2,971,288 SPECIAL REPAIR/ DEMOLITION 680,053 EMERGENCY & HEALTH GRANTS 4,113,422 WORKFORCE INVESTMENT ACT (1,673,374) ORANGE COUNTY SSA GRANTS (280,438) OES UASI (1,630,069) D.O.J. GRANT FUND 40,784 POLICE BLOCK GRANTS 1,599,065 HOME PROGRAM FEDERAL GRANT 1,958,970 MISC GRANTS 1,248 HOUSING AUTHORITY -ISSUER FEE 2,671,349 COMMUNITY DEV BLOCK GRANT (365,718) HOUSING AUTHORITY -VOUCHER HAP 1,083,580 HOUSING AUTHORITY- MAINSTREAM - HOUSING AUTHORITY -MS 5 (6,150) HOUSING AUTHORITY -NEW CONSTR 294,546 HOUSING AUTHORITY -VOUCHER ADM 2,682,765 NSP FEDERAL GRANT 140,372 CALHOME MFGD HSG LOAN 710,390 PRISON TO EMPLOYMENT PROGRAM - RENTAL REHABILITATION GRANT 48,502 FEDERAL AID SAFETY PROGRAM (621,466) TRAFFIC SYSTEM MGMT GRANT (4,388,040) WIC ASSESSMENT DIST ST IMPRV 32,965 PUBLIC LIBRARY GRANT FUND 409 LIBRARY GRANTS 42,388 LIBRARY SVCS & TECHNOLOGY ACT 1,375 OCJP GRANT - HSG ADMIN CARES ACT COVID-19 428 PLANNING GRANTS PROGRAM 2,936,585 HSG HAP CARES ACT COVID-19 - PRCSA CAPITAL GRANTS (1,122,832) ENERGY CONSERVATION PROGRAM (59,446) PUB WKS-WTR QUALITY & CONTROL (4,636,735) OFFICE OF SAFETY GRANT 46,791 US DOJ ASSET FORFEITURE FUND 972,915 US TREASURY ASSET FORFEITURE 140,294 RECREATION GRANTS FUND 583,010 MS5 HAP CARES ACT COVID-19 - NATL RECREATION TRAILS FND ACT 17,265 CARES ACT - CESF - CARES ACT - State City Council Page 2 of 3 6-9 3/7/2023 Quarterly Report of Investments as of December 31, 2022 Exhibit 2 - Cash held by Bank and Cash by Fund(s) Listing 177 EMERGENCY RENTAL ASSISTANCE PG 3,543,091 178 COVID RELIEF FUND (629,016) 179 GENERAL FIXED ASSETS (88,200) 180 ARPA EHV ADMIN FEES 158,866 181 AMERICAN RESCUE PLAN ACT 106,033,373 182 HOME -ARP PROGRAM FEDERAL GRANT (13,865) 183 ARPA - CA FOR ALL YOUTH WDP (188,041) 201 LOCAL DRAINAGE AREA NO 1 133 202 LOCAL DRAINAGE AREA NO 2 1,439 203 LOCAL DRAINAGE AREA NO 3 760,371 204 LOCAL DRAINAGE AREA NO 4 1,063 205 LOCAL DRAINAGE AREA NO 5 604 206 LOCAL DRAINAGE AREA NO 6 886 207 LOCAL DRAINAGE AREA NO 7 195,545 209 LOCAL DRAINAGE AREA NO 9 738 210 LOCAL DRAINAGE AREA NO 10 17,291 211 LOCAL DRAINAGE AREA NO 11 224 212 LOCAL DRAINAGE AREA NO 12 13 213 LOCAL DRAINAGE AREA NO 13 2,716 221 LOCAL DRAINAGE AREA I 1,040,008 222 LOCAL DRAINAGE AREA II 276,131 223 LOCAL DRAINAGE AREA III 423,889 224 LOCAL DRAINAGE AREA IV 461,736 225 LOCAL DRAINAGE AREA V 283,003 226 LOCAL DRAINAGE AREA VI 383,811 301 REC/COMM SVS 6,084 311 RESIDENTIAL DEVELOP DISTRICT 1 3,320,928 312 RESIDENTIAL DEVELOP DISTRICT 2 4,134,113 313 RESIDENTIAL DEVELOP DISTRICT 3 13,931,513 314 RESIDENTIAL DEVELOP DISTRICT 4 694,398 400 POLICE UUT LEASE REVENUE BONDS 2,061,931 403 SCAG GRANTS - 404 COSA 2014 LEASE FINANCING 1,835,598 406 2021 PENSION OBLIGATION BONDS 14,065 417 INCLUSIONARY HOUSING FEE 14,012,985 418 CDA - PEEBLER CAPITAL FUND 640,370 607 HOUSING AUTHORITY LMIHF 4,998,457 652 2003A SERIES TAX ALLOC BOND - 654 2011A SERIES TAX ALLOC BOND - 655 2018A SERIES TAX ALLOC BOND 11,781 658 2003B SERIES ALLOC BOND - 670 COSA RDA 462,921 671 COSA RDA OBLIGATION RETIREMENT 338,366 980 SAN JUANQUIN TRANS CORRIDOR 1,675,830 981 EASTERN FOOTHILL TRANS CORRIDO - 991 TRAN SYS IMP AUT C-2 TUSTIN 2,616,424 992 TRAN SYS IMP ALIT AREA D-TUSTIN 11,186,531 993 WIC ASSESSMENT DISTRICT 998 TREASURERS AGENCY COLLECTIONS - 999 Lawson Clearing 26,041 Reconciling Item(s) - Outstanding Checks * 3,555,434 Reconciling Item(s) - Bank Direct Deposits* 2,568,597 Reconciling Item(s) - Deposits in Transit* (602,584) Reconciling Item(s) - Withdrawals in Transit* Reconciling Item(s) - Various* 392,354 Reconciling Item(s) -Various: A difference between Cash held by Financial Institution. Fiscal Argent and Cash on Hand exists when comparing to Cash by Fund due, to reconciling items such as timing of payments; outstanding checks; and deposits in transit City Council Page 3 of 3 6 — 10 3/7/2023 Finance and Management Services www.santa-ana.org/finance Item # 7 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Quarterly Report of Contracts Awarded by the City Manager AGENDA TITLE: Receive and File Quarterly Report of Contracts up to $50,000 for Non -Public Works and up to $250,000 for Public Works Authorized by the City Manager as Permitted by Charter Section 421 RECOMMENDED ACTION Receive and file Quarterly Report of Contracts entered into between October 1, 2022 to December 31, 2022, valued at up to $50,000 for non-public works contracts and agreements and up to $250,000 for public works contracts and agreements. DISCUSSION Section 421 of the Charter requires the City Manager to submit a quarterly report (Report) to the City Council disclosing all contracts approved and executed under her authority for informational purposes. The Report is required to include the names of the contractors and the amounts of each contract along with a brief description. Section 2-748 of the Santa Ana Municipal Code provides the City Manager contracting authority to enter into non-public works contracts and agreements up to $50,000 and public works contracts and agreements up to $250,000. Exhibit 1 is a listing of all purchase orders and agreements entered into during the period October 1, 2022 to December 31, 2022, valued at amounts between $500 and $50,000 for Non-public works and up to $250,000 for public works contracts and agreements. FISCAL IMPACT There is no fiscal impact associated with this action. EXHIBIT(S) 1. 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N OD CO OD W W Ol 01 al al N al dl al dl 01 O O O Z N N N C } LL O O O l0 W�t 00 ci tD m c-I 00 h lD lD N m m m N ti rl m .-I N N M h 00 rl O 00 c m c-I m O 01 c-I O CO t C i11 I� m t0 a C --IO1 n c-I W W o m lD 1f1 oO W Ol O 00 N O Vt N 0 c- 00 0 C- 0� I� N N co 00 O M h l0 N 00 N O N N l0 lD N m I� �f1 N �I1 O M 41 C m m p m p N 1� N 01 X n Y f0 C N N 01 h 00 N to l0 t0 o N M 01 l0 m m N rl Cf ti N m W o0 a -I f m 0 H .� u Q v u d O ❑ U i N ~ m uu a` � a a N V aJ N bCA a C O- E= O E E s E a`i �i- '^ O N u 00 E d 16 > u ❑ m F _ v al � �j. � Q N c 3 � U1 rc � io [C C ❑ > u_ s m 00 a CJ N CJ lJ O V lJ O ii O x J d d d d r Police Department www.santa-ana.org/police Item # 8 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Santa Ana Jail Inmate Medical Services AGENDA TITLE: Final Payment to Naphcare, Inc. in the amount of $66,772 for Inmate Medical Services (General Fund) RECOMMENDED ACTION Authorize final payment to Naphcare, Inc. for past services rendered in the amount of $66,772. DISCUSSION On October 1, 2017, the City entered into agreement #A-2017-249 with NaphCare, Inc, for the provision of medical and mental health services for persons incarcerated in the Santa Ana Jail. Upon expiration of the initial two year term of this agreement on September 30, 2019, the Police Department had incurred expenses totaling $218,580 over the not to exceed limit due to higher than anticipated need for pharmaceutical services and X-ray procedures that exceeded the annual $50,000 contingency included in the agreement. Additionally, the monthly parking stipend amount was inadvertently not included in the not -to -exceed contract total amount. Three subsequent one-year extensions to this agreement were executed on October 1, 2019, October 1, 2020, and October 1, 2021 that increased the aggregate not to exceed total amount for these services to $13,400,361.15. These amendments increased the annual contingency amount to cover the pharmaceutical services, X-ray procedures, and the monthly parking. However, the imbalance from the original term of the agreement was not addressed appropriately because the Police Department did not have a mechanism to track this vendor's payments properly. As a result, staff was unaware that there was an over -expenditure in the first agreement period and relied on the overall not to exceed amount (Exhibit 1). Through the implementation of improved budgetary and accounting practices, staff identified the net overage for the life of the agreement and all extensions as 66,772. Due to insufficient contract authority remaining on the not -to -exceed amount of City Council 8-1 3/7/2023 Santa Ana Jail Inmate Medical Services March 7, 2023 Page 2 the agreement, the department was only able to compensate NaphCare for a portion of the services provided in September 2022, the final month of the contract. Therefore, the Police Department is requesting City Council authority to pay NaphCare, Inc. for the unpaid portion of the September 2022 invoice (#106555) in the amount of $66,772. FISCAL IMPACT Funds in the amount of $66,772 for this amendment are available in the Jail Operations, Contract Services account (no. 01114475-62300). EXHIBIT(S) 1. Table - Agreement and expenditure analysis Submitted By: David Valentin, Police Chief Approved By: Kristine Ridge, City Manager City Council 8-2 3/7/2023 Exhibit 1 NaphCare Agreement Agreement Term Not to Exceed Expenditure Balance +/- Amount A-2017-249 10/01/17- $4,991,486.78 $5,210,066.86 ($218,580.08) 09/30/19 A-2017-249-01; 10/01/19- $2,717,709.56 $2,666,323.23 $51,386.33 First Amdt. 09/30/20 A-2020-187; 10/01/20- $2,836,417.94 $2,802,332.98 $34,084.96 Second Amdt. 09/30/21 A-2021-184; 10/01/21- $2,854,746.87 $2,788,410.05 $66,336.82 Third Amdt. 09/30/22 Total $13,400,361.15 $13,467,133.12 ($66,771.97) City Council 8-3 3/7/2023 Public Works Agency www.santa-ana.org/public-works Item # 9 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Award Blanket Order Contracts to HD Supply, Snap -on, WESCO Distribution, Inc., and White Cap, LP AGENDA TITLE Award Blanket Order Contracts to HD Supply, Snap -on, WESCO Distribution, Inc; and White Cap, LP for Maintenance, Repair, and Operating Supplies and Equipment in the Annual not to Exceed Aggregate Amount of $565,000 for a One -Year Term Ending on March 31, 2024, with Provisions for up to Five Additional One -Year Renewal Periods (Specification No. 23-015) (General Fund) RECOMMENDED ACTION Award a blanket order contract to vendors listed below for as -needed maintenance, repair, operating supplies, and equipment for a one-year term ending on March 31, 2024, with provisions for up to five one-year renewal periods in accordance with each vendor's respective contract terms and conditions, subject to non -substantive changes approved by the City Manager and City Attorney. The annual aggregate not -to -exceed amount is $565,000, with a total aggregate not -to -exceed amount of $3,390,000 for the entire term, including renewal periods exercisable by the City Manager. HD Supply Snap-On WESCO Distribution, White Cap, LP. San Diego, CA Kenosha, WI Inc. Pittsburgh, PA Orlando, FL DISCUSSION The Public Works Agency's Water Resources Division operates and maintains 20 active water wells and seven water pumping stations, supplying the City's drinking water and a sanitary sewer system consisting of approximately 390 miles of pipelines. HD Supply and Snap-On provide maintenance, repair, and operating supplies and equipment, including many power tools and related equipment used on a daily basis by staff to perform immediate electrical, plumbing, and general repairs at various City buildings, including parks facilities, libraries, recreation and senior centers, Santa Ana Zoo, City Hall, Corporate Yard, Police Administration, and Holding Facility. HD Supply and Snap - on offer short lead times for materials, supplies, and equipment required for daily operations. To facilitate this process, annual blanket order contracts will be established with the four vendors. City Council 9-1 3/7/2023 Contracts for Maintenance Supplies and Equipment March 7, 2023 Page 2 Santa Ana City Ordinance No. NS-2312 authorizes the City to purchase against contracts issued to vendors who have been awarded by a state agency, county, city, or other public agency after a competitive bidding process substantially equivalent to the City's standard bidding process. By leveraging the procurement power through cooperative purchasing, the City of Santa Ana is able to obtain nationally vetted, high quality products at competitive volume pricing, and is in accordance with the City's existing Purchasing guidelines. OMNIA Partners Public Sector, a national cooperative purchasing program has made available contracts awarded to HD Supply and WESCO Distribution, Inc. HD Supply was awarded a contract after competitive Request for Proposals (RFP) No. 16154 was conducted by Maricopa County, Arizona. WESCO Distribution, Inc. was awarded Contract No. R192008 by Region 4 Education Service Center, Texas, as a result of a competitive RFP. Snap -on and White Cap, LP were both awarded Contracts (No.013020-SNP and No. 091422-WCP) after competitive RFPs were conducted by Sourcewell, a State of Minnesota local government agency and service cooperative. FISCAL IMPACT Funding for the not -to -exceed annual amount of $565,000 is available in the FY 2022- 23 budget, within various departmental Miscellaneous Operating Expense accounts (No. 63001) and Contract Services -Professional (No. 62300). Funding for the total not - to -exceed amount of $3,390,000 in future contract extensions through March 31, 2029, will be included in the proposed annual budgets for City Council consideration. Fiscal Year Accounting Fund Accounting Amount Unit -Account Description Unit, Account # Description Contract 1-Year Term March to June 06017640- Water Fund Water Utility $50,000 30, 2023 63001 Production & Supply, Miscellaneous Operating Expenses 06017641- Water Fund Water Systems $30,000 63001 Maintenance, Miscellaneous Operating Expenses 01117017- General Fund PWA Service $6,700 62300 Enhancement, City Council 9-2 3/7/2023 Contracts for Maintenance Supplies and Equipment March 7, 2023 Page 3 Contract Services - Professional 01117643- General Fund PWA St Trees $3,500 63001 — Service Enhancement, Miscellaneous Operating Expenses 06817641- Sanitation PWA-Roadway $8,500 63001 Fund Cleaning, Miscellaneous Operating Expenses 01117651- General Fund Park $50,000 63001 Maintenance Service Enhancement, Miscellaneous Operating Expenses 99999999- Various Funds Citywide, $40,000 63001 Miscellaneous Operating Expenses FY 2023-2024 06017640- Water Fund Water Utility $100,000 July to March 63001 Production & 6, 2024 Supply, Miscellaneous Operating Expenses 06017641- Water Fund Water Systems $60,000 63001 Maintenance, Miscellaneous Operating Expenses 01117017- General Fund PWA Service $13,3000 62300 Enhancement, Contract Services - Professional 01117643- General Fund PWA St Trees $6,500 63001 — Service City Council 9-3 3/7/2023 Contracts for Maintenance Supplies and Equipment March 7, 2023 Page 4 Enhancement, Miscellaneous Operating Expenses 06817641- Sanitation PWA-Roadway $16,500 63001 Fund Cleaning, Miscellaneous Operating Expenses 01117651- General Fund Park $100,000 63001 Maintenance Service Enhancement, Miscellaneous Operating Expenses 99999999- Various Funds Citywide, $80,000 63001 Miscellaneous Operating Expenses TOTAL: $565,000 EXHIBIT(S) 1. Contract with HD Supply 2. Contract with Snap-On 3. Contract with WESCO 4. Contract with White Cap, LP Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency Approved By: Kristine Ridge, City Manager City Council 9-4 3/7/2023 EXHIBIT 1 C,n- o - w --1-o) I CO �0 tj-S CONTRACT PURSUANT TO RFP SERIAL 16154-RFP This Contract is entered into this 11 th day of January, 2017 by and between Maricopa County ("County"), a political subdivision of the State of Arizona, and HID Supply Facilities Maintenance, Ltd., Florida Limited Partnership ("Contractor") for the purchase of Maintenance Repair and Operating Supplies and Services. 1.0 CONTRACT TERM: 1.1 This Contract is for a term of Five (5) years, beginning on the Ith day of February, 2017 and ending the 31 s' day of December, 2021. 1.2 The County may, at its option and with the agreement of the Contractor, renew the term of this Contract for additional terms up to a maximum of five (5) additional years, (or at the County's sole discretion, extend the contract on a month -to -month bases for a maximum of six (6) months after expiration). The County shall notify the Contractor in writing of its intent to extend the Contract term at least sixty (60) calendar days prior to the expiration of the original contract term, or any additional term thereafter. 2.0 FEE ADJUSTMENTS: 2.1 Any request for a fee adjustment must be submitted sixty (60) days prior to the current Contract expiration. Requests for adjustment in cost of labor and/or materials must be supported by appropriate documentation. If County agrees to the adjusted fee, County shall issue written approval of the change. The reasonableness of the request will be determined by comparing the equest with the (Consumer Price Index) or by performing a market survey. 3.0 PAYMENTS: 31 As consideration for performance of the duties described herein, County shall pay Contractor the prices based on the discounts stated in Exhibit "A." or Task Order, 3.2 Payment shall be made upon the County's receipt o fa properly completed invoice. 3.3 INVOICES: 331 The Contractor shall submit one (1) legible copy of their detailed invoice before payment(s) can be made. Incomplete invoices will not be processed. At a minimum, the invoice must provide the following information: • Company name, address and contact • County bill -to name and contact information • Contract Serial Number ifprovided during account set-up or • County purchase order number • Invoice number and date • Payment terms • Date of shipment Quantity ' Contract Item number(s) City Council 9-5 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP • Description of Purchase (product or services) Pricing per unit of purchase • Freight (if applicable) • Extended price • Total Amount Due 3.3.2 Problems regarding billing or invoicing shall be directed to the using agency as listed on the Purchase Order. 3.3.3 Payment shall be made to the Contractor by Accounts Payable through the Maricopa County Vendor Express Payment Program. This is an Electronic Funds Transfer (EFT) process. After Contract Award the Contractor shall complete the Vendor Registration Form located cn the County Department of Finance Vendor Registration Web Site (htt.12://www.maricol2a.gQvIFinancefVendors.iWxL 3.3.4 Discounts offered in the contract shall be calculated based m the date a properly completed invoice is received by the County (ROI). 3.3.5 EFT payments to the routing and account numbers designated by the Contractor will include the details ai the specific invoices that the payment covers. The Contractor is required to discuss remittance delivery capabilities with their designated financial institution for access to those details. 3.4 PAYMENT RETENTION: (By Task Order/Project if required) 3.4.1 Ten percent (101/16) of monies paid for Project Management and Project Labor earned by CONTRACTOR related to work under this agreement shall be retained by COUNTY until Final Completion of the services. COUNTY may elect to release specific retention payments based on mutually agreed milestones, but in m case shall retention be released prior to Final Completion. All other payment terns and conditions shall not be affected by the retention. In the event of termination or cancellation of this contract by County through m fault of CONTRACTOR, CONTRACTOR shall be entitled to the refund of any funds in the retention account. 3.4.2 The CONTRACTOR shall have the right, pursuant to Arizona Revised Statues, to submit securities in lieu of retention for all work completed. The CONTRACTOR is required to request this option at least ten (10) business days prior to submission of first Application for Payment to allow time for preparation of forms. The CONTRACTOR shall request and obtain securities forms through COUNTY. The COUNTY must identify either securities option cr retention option prior to first Application for Payment. 3.5 APPLICABLE TAXES: 3.5.1 Payment of Taxes: The Contractor shall pay all applicable taxes. With respect io any installation labor an items that are not attached to real property performed by Contractor under the terms of this Contract, the installation labor cost and the gross receipts for materials provided shall be listed separately on the Contractor's invoices. 3.5.2 State and Local Transaction Privilege Taxes: Maricopa County is subject to all applicable state and local transaction privilege taxes. To the extent any state and local transaction privilege taxes apply to sales made under the terms of this contract it is the responsibility of the seller to collect and remit all applicable taxes to the proper taxing jurisdiction of authority. 3.5.3 Tax Indemnification: Contractor and all subcontractors shall pay all Federal, state, and local taxes applicable to its operation and any persons employed by the Contractor. Contractor shall, hold Maricopa County harmless from any responsibility for taxes, damages and interest, if applicable, contributions required under Federal, and/or state and local laws and regulations and any other costs including transaction privilege taxes, unemployment compensation insurance, Social Security and Worker's Compensation. City Council 9-6 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 3.6 TAX: (SERVICES) No tax shall be levied against labor based on applicable law and pursuant to tax exemption regulations. It is the responsibility ofthe Contractor to determine any and all taxes and include the same in proposal price. 3.7 TAX(COMMODITIES): Tax shall not be levied against labor. Sales/use tax will be determined by County. Tax will not be used in determining low price. 3.8 STRATEGIC ALLIANCE for VOLUME EXPENDITURES ($AVE): 3.8.1 The County is a member ofthe SAVE cooperative purchasing group. SAVE includes the State of Arizona, many Phoenix metropolitan area municipalities, and many K-12 unified school districts. Under the SAVE Cooperative Purchasing Agreement, and with the concurrence of the successful Respondent under this solicitation, a member of SAVE may access a contract resulting from a solicitation issued by the County. I f you do not wain to grant such access to a member of SAVE, please so state in your proposal. In the absence of a statement to the contrary, the County will assume that you do wish to grant access to any contract that may result from this Request for Proposal. 3.9 INTERGOVERNMENTAL COOPERATIVE PURCHASING AGREEMENTS (ICPA's) 3.9.1 County currently holds 1CPA's with numerous governmental entities throughout the State of Arizona. These agreements allow those entities, with the approval ofthe Contractor, to purchase their requirements under the terns and conditions of the County Contract. Please indicate on Attachment A, your acceptance or rejection regarding such participation of other governmental entities. Your response will not be considered as an evaluation factor in awarding a contract 3.10 VOLUNTARY EMPLOYEE DISCOUNTS 3.10.1 Vendors may voluntarily offer discounts to County employees for products or services provided under this contract. Whether a vendor offers or does not offer an employee discount is not a factor in nor considered in the evaluation of responses to this solicitation. 3.10.2 Any discount offered is part of a commercial transaction between the vendor and individual County employees and the County is not a party to the transaction. Any disputes or issues arising from an individual commercial transaction between the vendor and an individual County employee are a matter between the vendor and the employee. If a discount is offered, the terms will be announced to County employees. 4.0 AVAILABILITY OF FUNDS: 4.1 The provisions ofthis Contract relating to payment for services shall become effective when funds assigned for the purpose of compensating the Contractor as herein provided are actually available to County for disbursement. The County shall be the sole judge and authority in determining the availability of funds under this Contract. County shall keep the Contractor fully informed as to the availability of funds. 4.2 If any action is taken by any state agency, Federal department or any other agency or instrumentality to suspend, decrease, or terminate its fiscal obligations under, or in connection with, this Contract, County may amend, suspend, decrease, or terminate its obligations under, or in connection with, this Contract. In the event of termination, County shall be liable for payment only for services rendered prior to the effective date ofthe termination, provided that such services are performed in accordance with the provisions of this Contract. County shall give written notice o f the effective date of any suspension, amendment, or termination under this Section, at least ten (10) days in advance. City Council 9-7 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 5.0 DUTIES: S1 The Contractor shall perform all duties stated in Exhibit "B", Task Order or as otherwise directed in writing by the Procurement Officer. 6.0 TERMS and CONDITIONS: 61 INDEMNIFICATION: To the fullest extent permitted by law, and to the extent that claims, damages, losses or expenses are not covered and paid by insurance purchased by the Contractor, the Contractor shall defend indemnify and hold harmless the County (as Owner), its agents, representatives, agents, officers, directors, officials, and employees from and against actual and direct claims, damages, losses, and expenses (including, but not limited to reasonable attorneys' fees, court costs, expert witness fees, and the costs and attorneys' fees for appellate proceedings) to the extent arising out of, cr alleged to have resulted from the negligent acts, errors, omissions, or willful misconduct relating to the Contractor's performance o f this Contract Contractor's duty to defend, indemnify, and hold harmless the County, its agents, representatives, agents, officers, directors, officials, and employees shall arise in connection with any actual and direct claim, damage, loss, or expense that is attributable to bodily injury, sickness, disease, death or injury to, impairment of, or destruction of tangible property, including loss of use resulting there from, to the extent caused by negligent acts, errors, omissions, or willful misconduct in the performance of this Contract, but only m the extent caused by the negligent acts or omissions of the Contractor, a subcontractor, any one directly employed by them, or anyone for whose acts they may be liable, except m the extent such claim, damage, loss, or expense is caused in part by a party indemnified hereunder. Contractor's obligation to indemnify, defend and hold harmless County shall not apply in cases of County's negligence or intentional misconduct Further, Contractor shall not be so obligated and specifically disclaims any liability for claims that are due to: building design and/or construction, product misuse, misapplication of the product, improper site or surface preparation, improper selection of product and/or color, or improper maintenance. The amount and type of insurance coverage requirements set forth herein will in no way be construed as limiting the scope of the indemnity in this paragraph The scope of this indemnification extends to the negligence of County. Q INSURANCE. 6.2.1 Contractor, at Contractor's own expense, shall purchase and maintain the herein stipulated minimum insurance from a company or companies duly licensed by the State of Arizona and possessing a current A.M. Best, Inc. rating of B++. In lieu of State of Arizona licensing, the stipulated insurance may be purchased from a company or companies, which are authorized to do business in the State of Arizona, provided that said insurance companies meet the approval of County. The form of any insurance policies and forms must be acceptable to County. 6.2.2 All insurance required herein shall be maintained in full force and effect until all work or service required m be performed under the terms of the Contract is satisfactorily completed and formally accepted. Failure to do so may, at the sole discretion of County, constitute a material breach of this Contract 6.2.3 Contractor's insurance shall be primary insurance as respects County, and any insurance or self-insurance maintained by County shall not contribute to it 6.2.4 Any failure to comply with the claim reporting provisions of the insurance policies or any breach of an insurance policy warranty shall not affect the County's right to coverage afforded under the insurance policies. City Council 9-8 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 6.2.5 The insurance policies may provide coverage that contains deductibles or self -insured retentions. Such deductible and/or self -insured retentions shall not be applicable with respect to the coverage provided to County under such policies. Contractor shall be solely responsible for the deductible and/or self -insured retention and County, at its option, may require Contractor to secure payment of such deductibles or self -insured retentions by a surety bond or an irrevocable and unconditional letter of credit. 6.2.6 The insurance policies required by this Contract, except Workers' Compensation and Errors and Omissions, shall name County, its agents, representatives, officers, directors, officials and employees as Additional Insureds, except where such agent or representative is a contractor or subcontractor retained by the County. 6.2.7 The policies required hereunder, except Workers' Compensation and Errors and Omissions, shall contain a waiver of transfer of rights of recovery (subrogation) against County, its agents, representatives, officers, directors, officials and employees for any claims arising out of Contractor's work or service, except where such agent or representative is a third -party contractor or subcontractor retained by the County. 6.2.8 Commercial General Liability. Commercial General Liability insurance and, if necessary, Commercial Umbrella insurance with a limit of not less than $2,000,000 for each occurrence, $4,000,000 Products/Completed Operations Aggregate, and $4,000,000 General Aggregate Limit. The policy shall include coverage for premises liability, bodily injury, broad form property damage, personal injury, products and completed operations and blanket contractual coverage, and shall not contain any provisions which would serve to limit third party action over claims. There shall be no endorsement or modifications of the CGL limiting the scope of coverage for liability arising from explosion, collapse, or underground property damage. 6.2.9 Automobile Liability. Commercial/Business Automobile Liability insurance and, if necessary, Commercial Umbrella insurance with a combined single limit for bodily injury and property damage of not less than $1,000,000 each occurrence with respect to any of the Contractor's owned, hired, and non -owned vehicles assigned to or used in performance of the Contractor's work or services or use or maintenance ofthe Premises under this Contract. 6.2.10 Workers' Compensation. Workers' Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of Contractor's employees engaged in the performance of the work or services under this Contract; and Employer's Liability insurance of not less than $1,000,000 for each accident, $1,000,000 disease for each employee, and $1,000,000 disease policy limit. Contractor, its contractors and its subcontractors waive all rights against County and its agents, officers, directors and employees (except for third -party contractors or subcontractors retained by the County) for recovery of damages to the extent these damages are covered by the Workers' Compensation and Employer's Liability or commercial umbrella liability insurance obtained by Contractor, its contractors and its subcontractors pursuant to this Contract. 6.2.11 Errors and Omissions (Professional Liability) Insurance. Errors and Omissions (Professional Liability) insurance and,Commercial Umbrella insurance, which will insure and provide coverage for errors or omissions or professional liability ofthe CONTRACTOR, with limits ofno less than $2,000,000 for each claim. City Council 9-9 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 6.2.12 Builder's Risk (Property) Insurance. CONTRACTOR shall purchase and maintain, on a replacement cost basis, Builders' Risk insurance and, Commercial Umbrella insurance, if necessary, in the amount of the initial Contract amount as well as subsequent modifications thereto for the entire work at the site. Such Builder's Risk insurance shall be maintained until completion of the units under construction subject to the agreement as complete. This insurance shall include interests of COUNTY, CONTRACTOR, and all subcontractors and sub -subcontractors in the work during the life of the Contract and course of construction, and shall continue until the work is completed and accepted by COUNTY. For new construction projects, CONTRACTOR agrees to assume frill responsibility for loss or damage to the work being performed and to the structures under construction. For renovation construction projects, CONTRACTOR agrees to assume responsibility for loss or damage to the work being performed at least up to the frill Contract amount, unless otherwise required by the Contract documents or amendments thereto. Builders' Risk insurance shall be on a special form and shall also cover false work and temporary buildings and shall insure against risk of direct physical loss or damage from external causes including debris removal, demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for architect's service and expenses required as a result of such insured loss and other "soft costs" as required by the Contract. Builders' Risk insurance must provide coverage from the time any covered property comes under CONTRACTOR'S control and/or responsibility, and continue without interruption during construction, renovation, or installation, including any time during which the covered property is being transported to the construction installation site, and while on the construction or installation site awaiting installation. The policy will provide coverage while the covered premises or any part thereof are occupied. Builders' Risk insurance shall be primary and any insurance or self-insurance maintained by the County is not contributory. If the Contract requires testing of equipment or other similar operations, at the option of COUNTY, CONTRACTOR will be responsible for providing property insurance for these exposures under a Boiler Machinery insurance policy or the Builders' Risk Insurance policy. 6.2.13 Certificates ofinsurance. 6.2.13.1 Prior to Contract AWARD, Contractor shall furnish the County with valid and complete certificates of insurance, or formal endorsements as required by the Contract in the form provided by the County, issued by Contractor's insurer(s), as evidence that policies providing the required coverage, conditions and limits required by this Contract are in full force and effect. Such certificates shall identify this contract number and title. 6.2.13.2 In the event any insurance policy (ies) required by this contract is (are) written on a "claims made" basis, coverage shall extend for two years past completion and acceptance of Contractor's work or services and as evidenced by annual Certificates of Insurance. 6.2.13.3 Ifa policy does expire during the life ofthe Contract, a renewal certificate must be sent to County fifteen (15) days prior to the expiration date. 6.2.14 Cancellation and Expiration Notice. Applicable to all insurance policies required within the Insurance Requirements of this Contract, Contractor's insurance shall provide prior written notice of cancellation to Maricopa County based on state guidelines. Such notice shall be sent directly to Maricopa County Office of Procurement Services and shall be mailed or hand delivered to 320 West Lincoln Street, Phoenix, AZ 85003, or emailed to Procurement Officer noted in solicitationa City Council 9 — 10 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 6.3 BOND REQUIREMENT: (If required by Project/Task Order) 6.3.1 Concurrently with the submittal of the Contract, the Contractor shall furnish the Contracting Agency the following bonds, which shall become binding upon the award of the contract to the Contractor. 63.1.1 A Performance Bond equal to the full Contract amount ($ or as specified) conditioned upon the faithful perfonmance of the Contract in accordance with plans, specifications and conditions thereof. Such bond shall be solely for the protection ofthe Contracting Agency awarding the Contract. 6.3.1.2 A Payment Bond equal to the full contract amount($ or as specified) solely for the protection of claimants supplying labor and materials to the Contractor cc his Subcontractors in the prosecution ofthe work provided for in such Contract. 6.3.2 Each such bond shall include a provision allowing the prevailing party in a suit on such bond to recover as a part of his judgment such reasonable attorney's fees as may be fixed by ajudge ofthe court. 6.3.3 Each bond shall be executed by a surety company or companies holding a certificate of authority to transact surety business in the State of Arizona issued by the Director of the Department of Insurance. The bonds shall not be executed by an individual surety or sureties. The bonds shall be made payable and acceptable to the Contracting Agency. The bonds shall be written or countersigned by an authorized representative ofthe surety who is either a resident ofthe State of Arizona or whose principal office is maintained in this state, as by law required, and the bonds shall have attached thereto a certified copy of the Power of Attorney of the signing official. In addition, said company or companies shall be rated "Best -A" or better as required by the Contracting Agency, as currently listed in the most recent Best Key Rating Guide, published by the A.M. Best Company. 6.4 FORCE MAJEURE 6.4.1 Except for payment obligations, neither parry shall be liable for failure of performance, nor incur any liability to the other parry on account of any loss or damage resulting from any delay or failure to perfonn all or any part of this Contract if such delay or failure is caused by events, occurrences, of causes beyond the reasonable control and without negligence of the parties. Such events, occurrences, or causes will include Acts of God/Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared of not), civil war, riots, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, lockout, blockage, embargo, labor dispute, strike, interruption or failure of electricity or telecommunication service. 6.4.2 Each party, as applicable, shall give the other party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each party must use best efforts to remedy the situation and remove, as soon as practicable, the cause of its inability to perfonn or comply. 6.4.3 The party asserting Force Majeure as a cause for non-performance shall have the burden of proving that reasonable steps were taken to minimize delay or damages caused by foreseeable events, that all non -excused obligations were substantially fulfilled, and that the other party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated. 6.4.4 The County shall reserve the right to terminate this Contract and/or any applicable order or contract release purchase order upon non-performance by Contractor. The County shall reserve the right to extend the Contract and time for perfonmance at its discretion. City Council 9 —11 3/7/2023 EXHIBIT 1 SERIAL 161.54-RFP 6.5 WARRANTY OF SERVICES: 651 The Contractor warrants that all services provided hereunder will conform to the requirements of the Contract, including all descriptions, specifications and attachments made a pini of this Contract. County's acceptance of services or goods provided by the Contractor shall not relieve the Contractor from its obligations under this warranty. 6.5.2 hi addition to its other remedies, County may, at the Contractor's expense, require prompt correction of any services failing to meet the Contractor's warranty herein. Services corrected by the Contractor shall be subject to all the provisions ofthis Contract in the manner and to the same extent as services originally punished hereunder. 6.5.3 Notwithstanding the foreeoing, with respect to materials provided hereunder, Contractor is a reseller of goods only, and as such does not provide any warranty for the goods it supplies hereunder, Notwithstanding this as -is limitation, Contractor shall pass through to County any transferrable manufacturer's standard warranties with respect to goods purchased hereunder. COUNTY AND PERSONS CLAIMING THROUGH COUNTY SHALL SEEK RECOURSE EXCLUSIVELY FROM MANUFACTURERS IN CONNECTION WITH ANY DEFECTS IN OR FAILURES OF GOODS, AND THIS SHALL BE THE EXCLUSIVE RECOURSE OF COUNTY AND PERSONS CLAIMING THROUGH COUNTY FOR DEFECTIVE GOODS, WHETHER THE CLAIM OF COUNTY OR THE PERSON CLAIMING THROUGH COUNTY SHALL SOUND IN CONTRACT, TORT, STRICT LIABILITY, PURSUANT TO STATUTE, OR FOR NEGLIGENCE. COUNTY SHALL PASS THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF GOODS. CONTRACTOR EXCLUDES AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR ASSUMES NO RESPONSIBILITY WHATSOEVER FOR CONTRACTOR'S INTERPRETATION OF PLANS OR SPECIFICATIONS PROVIDED BY COUNTY, AND COUNTY'S ACCEPTANCE AND USE OF GOODS SUPPLIED HEREUNDER SHALL BE PREMISED ON FINAL APPROVAL BY COUNTY OR BY COUNTY'S RELIANCE ON ARCHITECTS, ENGINEERS, OR OTHER THIRD PARTIES RATHER THAN ON CONTRACTOR'S INTERPRETATION, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW. IN NO EVENT, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY OUT OF THE PERFORMANCE OR BREACH OF THESE TERMS, SHALL CONTRACTOR BE LIABLE FOR (a) ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, COINCIDENTAL OR SIMILAR DAMAGES SUCH AS LOSS OF USE, LOST PROFITS, ATTORNEY'S FEES OR DELAYED DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR CAUSED BY CONTRACTOR'S BREACH OF THIS AGREEMENT, (b) ANY CLAIM THAT PROPERLY IS A CLAIM AGAINST THE MANUFACTURER, OR (c) ANY AMOUNT EXCEEDING THE AMOUNT PAID TO CONTRACTOR FOR GOODS FURNISHED TO COUNTY WHICH ARE THE SUBJECT OF SUCH CLA1M(S). ALL CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF ACCRUAL OF A CAUSE ACTION. 6.6 INSPECTION OF SERVICES: 6.6.1 The Contractor shall provide and maintain an inspection system acceptable to County covering the services under this Contract. Complete records of all inspection work performed by the Contractor shall be maintained and made available to County during contract performance and for as long afterwards as the Contract requires. 6.6.2 County has the right to inspect and test all services called for by the Contract, to the extent practicable at all reasonable times and places during the term of the Contract. County shall perform inspections and tests in a manner that will not unduly delay the work. City Council 9 — 12 3/7/2023 EXHIBIT 1 SERIAL. 16154-RFP 6.6.3 If any of the services do not conform to Contract requirements, County may require the Contractor to perform the services again in conformity with Contract requirements, at no cost to the County. When the defects in services cannot be corrected by re -performance, County may: 6.6.3.1 Require the Contractor to take necessary action to ensure that future performance conforms to Contract requirements; and 6.6.3.2 Reduce the Contract price to reflect the reduced value of the services performed. 6.6.4 If after being provided written notice and reasonable opportunity to cure the Contractor fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with Contract requirements, County may: 6.6.4.1 By Contract or otherwise, perform the services and charge to the Contractor, through direct billing or through payment reduction, any cost incurred by County that is directly related to the performance of such service; or 6.6.4.2 Terminate the Contract for default. 6.7 REQUIREMENTS CONTRACT: 6.7.1 Contractors signify their understanding and agreement by signing a bid submittal, that the Contract resulting f'om the bid is a requirements contract. However, the Contract does not guarantee any minimum or maximum number of purchases will be made. It only indicates that if purchases are made for the materials or services contained in the Contract, they will be purchased from the Contractor awarded that item if the Contractor can meet all the delivery requirements of the County. Orders will only be placed' when the County identifies a need and proper authorization and documentation have been approved. 6.7.2 County reserves the right to cancel Purchase Orders within a reasonable period of time after issuance. Should a Purchase Order be canceled, the County agrees to reimburse the Contractor for actual and documentable costs incurred by the Contractor in response to the Purchase Order. The County will not reimburse the Contractor for any costs incurred after receipt ofCounty notice of cancellation, or for lost profits, shipment ofproduct prior to issuance ofPurchase Order, etc. 6.7.3 Contractors agree to accept verbal notification of cancellation of Purchase Orders from the County Procurement Officer with written notification to follow promptly. By submitting a bid in response to this Invitation for Bids, the Contractor specifically ackriowledges to be bound by this cancellation policy. 6.8 Background Check: Contractors need to be aware that there may be multiple background checks (Sheriffs Office, County Attorney's Office, Courts as well as Maricopa County general government) to determine if the respondents employees are acceptable for the contractor to do business with the County. This applies to (but is not limited to) the company and sub -contractors. Employees or others who fail to pass these checks shall not be allowed to work on County projects. Failure to meet these requirements may lead to termination o fthe contract. 6.9 Suspension of Work The Procurement Officer may order the Contractor, in writing, to suspend, delay, or interrupt all or any part ofthe work ofthis contract for the period oftime that the Procurement Officer determines appropriate for the convenience of the County. No adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor. No request for adjustment under this clause shall be granted unless the claim, in an City Council 9 — 13 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP amount stated, is asserted in writing as soon as practicable after the termination ofthe suspension, delay, or interruption, but not later than the date of final payment under the contract. 6.10 Stop Work Order The Procurement Officer may, at any time, by written order to the Contractor, require the Contractor to stop all, or any part, ofthe work called for by this contract for a period of 90 days after the order is delivered to the Contractor, and for any further period to which the parties may agree. The order shall be specifically identified as a stop work order issued under this clause. Upon receipt of the order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 days after a stop -work is delivered to the Contractor, or within any extension ofthat period to which the parties shall have agreed, the Procurement Officer shall either- 6.10.1 Cancel the stop -work order; or 6.10.2 Terminate the work covered by the order as provided in the Default, or the Termination for Convenience ofthe County, clause ofthis contract. 6.10.3 The Procurement Officer may make an equitable adjustment in the delivery schedule and/or contract price, or otherwise, and the contract shall be modified, in writing, accordingly, if the Contractor demonstrates that the stop work order resulted in an increase in costs to the Contractor. 6.11 UNCONDITIONAL TERMINATION FOR CONVENIENCE: Maricopa County may terminate the resultant Contract for convenience by providing sixty (60) calendar days advance notice to the Contractor. 6.12 TERMINATION FOR DEFAULT: The County may, by written notice of default to the Contractor, terminate this contract in whole or in part ifthe Contractor tails to: 6.12.1 Deliver the supplies or to perform the services within the time specified in this contract or any extension; 6.12.2 Make progress, so as to endanger performance ofthis contract; or 6.12.3 Perform any ofthe other provisions ofthis contract. 6.12.4 The County's right to terminate this contract under these subparagraph may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the County) after receipt of the notice from the Procurement Officer specifying the failure. 6.13 STATUTORY RIGHT OF CANCELLATION FOR CONFLICT OF INTEREST: Notice is given that pursuant to A.R.S. § 38-511 the County may cancel any Contract without penalty or further obligation within three years after execution of the contract, if any person significantly involved in initiating, negotiating, securing, drafting or creating the contract on behalf ofthe County is at any time while the Contract or any extension ofthe Contract is in effect, an employee or agent of any other party to the Contract in any capacity or consultant to any other party ofthe Contract with respect to the subject matter ofthe Contract. Additionally, pursuant to A.R.S § 38-511 the County may recoup any fee or commission paid or due to any person significantly involved in initiating, negotiating, securing, drafting or creating the contract on behalf ofthe County from any other party to the contract arising as the result ofthe Contract. City Council 9 — 14 3/7/2023 EXHIBIT 1 SERIAL 161.54-RFP 6.14 CONTRACTOR LICENSE REQUIREMENT: 6.14.1 The Respondent shall procure all permits, insurance, licenses and pay the charges and fees necessary and incidental to the lawful conduct ofhis/her business, and as necessary complete any required certification requirements, required by any and all governmental or non -governmental entities as mandated to maintain compliance with and in good standing for all permits and/or licenses. The Respondent shall keep fully informed of existing and future trade or industry requirements, Federal, State and Local laws, ordinances, and regulations which in any manner affect the fulfillment of a Contract and shall comply with the same. Contractor shall immediately notify both Office of Procurement Services and the using agency of any and all changes concerning permits, insurance or licenses. 6.14.2 Respondents furnishing finished products, materials or articles of merchandise that will require installation or attachment as part of the Contract, shall possess any licenses required. A Respondent is not relieved of its obligation to possess the required licenses by subcontracting ofthe labor portion ofthe Contract. Respondents are advised to contact the Arizona Registrar of Contractors, Chief of Licensing, at (602) 542-1525 to ascertain licensing requirements for a particular contract. Respondents shall identify which license(s), ifany, the Registrar ofContractors requires for performance ofthe Contract. 6.15 SUBCONTRACTING: 6.15.1 The Contractor may not assign to another Contractor or Subcontract to another party for performance of the terms and conditions hereof without the written consent of the County, which consent shall not be unreasonably withheld. All correspondence authorizing subcontracting must reference the Bid Serial Number and identify the job project. 6.15.2 The Subcontractor's rate for the job shall not exceed that ofthe Prime Contractor's rate, as bid in the pricing section, unless the Prime Contractor is willing to absorb any higher rates or the County has approved the increase. The Subcontractor's invoice shall be invoiced directly to the Prime Contractor, who in turn shall pass -through the costs to the County, without mark-up. A copy of the Subcontractor's invoice must accompany the Prime Contractor's invoice. 6.16 AMENDMENTS: All amendments to this Contract shall be in writing and approved/signed by both parties. Maricopa County Office of Procurement Services shall be responsible for approving all amendments for Maricopa County. 6.17 ADDITIONS/DELETIONS OF SERVICE: 6.17.1 The County reserves the right to add and/or delete materials and services to a Contract. If a service requirement is deleted, payment to the Contractor will be reduced proportionately, to the amount of service reduced in accordance with the bid price. If additional materials or services are required from a Contract, prices for such additions will be negotiated between the Contractor and the County. 6.17.2 The County reserves the right of final approval on proposed staff for all Task Orders. Also, upon request by the County, the Contractor will be required to remove any employees working on County projects and substitute personnel based on the discretion ofthe County within two business days, unless previously approved by the County. 6.18 VALIDITY: The invalidity, in whole or in part, of any provision of this Contract shall not void or affect the validity of any other provision ofthe Contract. City Council 9 — 15 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 6.19 SEVERABILITY: The invalidity, in whole or in part of any provision of this Contract shall not void or affect the validity ofany other provision of this Contract 6.20 RIGHTS IN DATA: The County shall have the use of data and reports resulting from a Contract without additional cost or other restriction except as may be established ly law or applicable regulation. Each party shall supply to the other party, upon request any available information that is relevant to a Contract and to the performance thereunder. 6.21 NON-DISCRIMINATION: CONTRACTOR agrees m comply with all provisions and requirements of Arizona Executive Order 2009-09 including flow down of all provisions and requirements to any subcontractors. Executive Order 2009-09 supersedes Executive order 99-4 and amends Executive order 75-5 and may be viewed and downloaded at the Governor of the State of Arizona's website http ://azrnemory.azli bmry..izov/ cd m/si n0eitem/collection/execorden/id/680/rec/ I which is hereby incorporated into this contract as if set forth in full herein. During the performance of this contract, CONTRACTOR shall not discriminate against any employee, client or any other individual in any way because of that person's age, race, creed, color, religion, sex, disability or national origin. 6.22 ISRAEL BOYCOTT: Per House Bill 2617 Contractor certifies that they are not currently engaged in, and agrees for the duration of the Contract m not engage in, a boycott oflsrael. 6.23 CERTIFICATION REGARDING DEBARMENT AND SUSPENSION 6231 The undersigned (authorized official signing for the Contractor) certifies to the best of his or her knowledge and belief, that the Contractor 6.23.1.1 is not presently debarred, suspended, proposed for debarment declared ineligible, or voluntarily excluded from covered transactions by any Federal Department or agency, 6.23.1.2 have not within 3-year period preceding this Contract been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting m obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statues or commission of embezzlement theft forgely, bribery, falsification or destruction o f records, making false statements, or receiving stolen property; 6.23.1.3 are not presently indicted or otherwise criminally or civilly charged by a government entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (2) of this certification; and 6.23.1.4 have not within a 3-year period preceding this Contract had one or more public transaction (Federal, State or local) terminated for cause o f default 6.23.2 The Contractor agrees to include, without modification, this clause in all lower tier covered transactions (i.e. transactions with subcontractors) and in all solicitations for lower tier covered transactions related to this Contract City Council 9 — 16 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 6.24 VERIFICATION REGARDING COMPLIANCE WITH ARIZONA REVISED STATUTES §41- 4401 AND FEDERAL IMMIGRATION LAWS AND REGULATIONS: 6.24.1 By entering into the Contract, the Contractor warrants compliance with the Immigration and Nationality Act (INA using e-verify) and all other federal immigration laws and regulations related to the immigration status of its employees and A.R.S. §23-214(A). The contractor shall obtain statements from its subcontractors certifying compliance and shall furnish the statements to the Procurement Officer upon request. These warranties shall remain in effect through the term of the Contract. The Contractor and its subcontractors shall also maintain Employment Eligibility Verification forms (1-9) as required by the Immigration Reform and Control Act of 1986, as amended from time to time, for all employees performing work tinder the Contract and verify employee compliance using the E-verify system and shall keep a record of the verification for the duration ofthe employee's employment or at least three years, whichever is longer. I-9 forms are available for download at USCIS.GOV. 6.24.2 The County retains the legal right to inspect contractor and subcontractor employee documents performing work under this Contract to verify compliance with paragraph 6.24.1 of this Section. Contractor and subcontractor shall be given reasonable notice of the County's intent to inspect and shall make the documents available at the time and date specified. Should the County suspect or find that the Contractor or any of its subcontractors are not in compliance, the County will consider this a material breach of the contract and may pursue any and all remedies allowed by law, including, but not limited to: suspension of work, termination of the Contract for default, and suspension and/or debarment of the Contractor. All costs necessary to verify compliance are the responsibility ofthe Contractor. 6.25 INFLUENCE As prescribed in MCI-1202 ofthe Maricopa County Procurement Code, any effort to influence an employee or agent to breach the Maricopa County Ethical Code of Conduct or any ethical conduct may be grounds for Disbarment or Suspension under MCI-902. An attempt to influence includes, but is not limited to: 6.25.1 A Person offering or providing a gratuity, gift, tip, present, donation, money, entertainment or educational passes or tickets, or any type valuable contribution or subsidy, 6.25.2 That is offered or given with the intent to influence a decision, obtain a contract, gainer favorable treatment, or gain favorable consideration ofany kind. If a Person attempts to influence any employee or agent of Maricopa County, the Chief Procurement Officer, or his designee, reserves the right to seek any remedy provided by the Maricopa County Procurement Code, any remedy in equity or in the law, or any remedy provided by this contract. 6.26 CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM EMPLOYEES OF WHISTLEBLOWER RIGHTS. 6.26.1 The Parties agree that this Contract and employees working on this Contract will be subject to the whistleblower rights and remedies in the pilot program on contractor employee whistleblower protections established at 41 U.S.C. § 4712 by section 828 ofthe National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and section 3.908 ofthe Federal Acquisition Regulation; 6.26.2 Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C. ,¢ 4712, as described in section 3.909 ofthe Federal Acquisition Regulation. Documentation of such employee notification must be kept on file by Contractor and copies provided to County City Council 9 — 17 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP upon request. 6.26.3 Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts over the simplified acquisition threshold ($150,000 as of September 2013). 6.27 Uniform Administrative Requirements By entering into this Contract the Contractor agrees to comply with all applicable provisions of Title 2, Subtitle A, Chapter H, PART 200-UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS contained in Title 2 C.F.R. § 200 et seq. 6.28 ACCESS TO AND RETENTION OF RECORDS FOR THE PURPOSE OF AUDIT AND/OR OTHER REVIEW: 6.28.1 In accordance with section MCI 371 of the Maricopa County Procurement Code the Contractor agrees to retain all books, records, accounts, statements, reports, tiles, and other records and back-up documentation relevant to this Contract for six (6) years after final payment or until after the resolution of any audit questions which could be more than six (6) years, whichever is latest. The County, Federal or State auditors and any other persons duly authorized by the Department shall have full access to, and the right to examine, copy and make use of, any and all said materials. 6.28.2 Ifthe Contractor's books, records , accounts, statements, reports, files, and other records and backup documentation relevant to this Contract are not sufficient to support and document that requested services were provided, the Contractor shall reimburse Maricopa County for the services not so adequately supported and documented. 6.28.3 Ifat any time it is determined by the County that a cost for which payment has been made is a disallowed cost, the County shall notify the Contractor in writing of the disallowance. The course ofaction to address the disallowance shall be at sole discretion ofthe County, and may include either an adjustment to future invoices, request for credit, request for a check or deduction from current billings Submitted by the Contractor by the amount of the disallowance, or to require reimbursement forthwith of the disallowed amount by the Contractor by issuing a check payable to Maricopa County. 6.29 AUDIT DISALLOWANCES: If at any time, County determines that a cost for which payment has been made is a disallowed cost, such as overpayment, County shall notify the Contractor in writing of the disallowance. County shall also state the means of correction, which may be but shall not be limited to adjustment of any future claim submitted by the Contractor by the amount of the disallowance, or to require repayment of the disallowed amount by the Contractor. 6.30 OFFSET FOR DAMAGES; In addition to all other remedies at Law or Equity, the County may offset from any money due to the Contractor any amounts Contractor owes to the County for damages resulting from breach or deficiencies in performance ofthe contract. 6.31 PUBLIC RECORDS: Under Arizona law, all Offers submitted and opened are public records and must be retained by the Records Manager at the Office of Procurement Services. Offers shall be open to public inspection and copying after Contract award and execution, except for such Offers or sections thereof determined to contain proprietary or confidential information. by the Office of Procurement Services. If an Offeror believes that information in its Offer or any resulting Contract should not be released in response to a public record request under Arizona law, the Offeror shall indicate the specific information deemed confidential or proprietary and submit a statement with its offer detailing the reasons that the information should not be disclosed. Such reasons shall City Council 9 — 18 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP include the specific harm or prejudice which may arise from disclosure. The Records Manager of the Office of Procurement Services shall determine whether the identified information is confidential pursuant to the Maricopa County Procurement Code. 6.32 PRICES: Pricing will be compliant with the Pricing Commitments as described in the Administration Agreement dated as of January 12, 2017 by and between U.S. Communities Government Purchasing Alliance and Contractor. 6.33 INTEGRATION: This Contract represents the entire and integrated agreement between the parties and supersedes all prior negotiations, proposals, communications, understandings, representations, or agreements, whether oral or written, express or nnplied. 6.34 RELATIONSHIPS: In the performance of the services described herein, the Contractor shall act solely as an independent contractor, and nothing herein or implied herein shall at any time be construed as to create the relationship of employer and employee, co -employee, partnership, principal and agent, orjoint venture between the County and the Contractor. 6.35 GOVERNING LAW: This Contract shall be governed by the laws of the state of Arizona. Venue for any actions or lawsuits involving this Contract will be in Maricopa County Superior Court or in the United States District Court for the District of Arizona, sitting in Phoenix, Arizona 6.36 ORDER OF PRECEDENCE: In the event of a conflict in the provisions ofthis Contract and Contractor's license agreement, if applicable, the terms ofthis Contract shall prevail. 6.37 INCORPORATION OF DOCUMENTS: The following are to be attached to and made part ofthis Contract: 6.37.1 Exhibit A. Pricing; 6.37.2 ExhibitB, Scope of Work; 6.37.3 Exhibit C Facilities Management Requirements NOTICES: All notices given pursuant to the terms ofthis Contract shall be addressed to: For County: Maricopa County Office of Procurement Services ATTN: Contract Administration 320 West Lincoln Street Phoenix, Arizona 85003-2494 For Contractor: FID Supply Facilities Maintenance, Ltd. PO Box 509055 San Diego, CA 92150-9055 Attn: Contracts Department with a copy to: HD Supply Facilities Maintenance, Ltd. 3100 Cumberland Blvd, Suite 1700 Atlanta, GA 30339 Attn: Legal City Council 9 — 19 3/7/2023 EXHIBIT 1 IN WITNESS WHEREOF, this Contract is executed on the date set forth above. CONTRACTOR A 1w, ' �ffI � - AUTHORIZED SIGNATURE Robin Soehl, VP, Information Integrity & Compliance PRINTED NAME AND TITLE 101 Riverview Parkway, Santee, CA 92071 ADDRESS /a /is/a of Co DATE r MARICOPA COUNTY ATTESTED: CLERK OF THE BOARD 0Wtj APPROVED AS TO FORM: DEPUTY COUNTY ATTORNEY JAN 17 7.OF DATE JAN 17 20i7 DATE /Z 2�!% ATE SERIAL 16154-RFP City Council 9 — 20 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP EXHIBITB SCOPE OF WORK CONTRACT FOR MAINTENANCE, REPAIR, OPERATING SUPPLIES, INDUSTRIAL SUPPLIES, AND RELATED PRODUCTS AND SERVICES (U.S. Communities) 1.0 INTENT: The Contractor shall have a strong national presence for a vast array of supplies and equipment necessary for maintenance and repair in residential, commercial and industrial environments for use by various public entities nationwide. Other governmental entities under agreement with the County may have access to services provided hereunder. The County reserves the right to award in whole or in part, by item or group of items, by section or geographic area, or make multiple awards, where such action serves the County's best interest. The County reserves the right to add additional contractors, at the County's sole discretion, in cases where the currently listed contractors are of an insufficient number or skill -set to satisfy the County's needs or to ensure adequate competition on any project or task order work. 1.1 INTRODUCTION, BACKGROUND AND INTENT: MASTER AGREEMENT Maricopa County, AZ (herein "Lead Public Agency" on behalf of itself and all states, local govermnents, school districts, and higher education institutions in the United States of America, and other government agencies and nonprofit organizations (herein "Participating Public Agencies") is soliciting proposals from qualified suppliers to enter into a Master Agreement for a complete line of Maintenance, Repair and Operating (MRO) Supplies and Industrial Supplies in a Retail and Wholesale environment; and Related Products and Services (herein "Products and Services"). 1.2 GENERAL DEFINITION OF PRODUCTS AND/OR SERVICES Contractors are to have the broadest possible selection of MAINTENANCE, REPAIR, OPERATING SUPPLIES AND RELATED PRODUCTS AND SERVICES they offer. The intent of this contract is to provide Participating Public Agencies with a comprehensive offering of products and services to meet their various needs. 1.2.1 Maintenance, Repair, Operating (MRO) Supplies and Related Services (Installation, Repair and Renovation) - A complete and comprehensive offering of wholesale and/or retail MRO supplies such as appliances, building materials, hardware, HVAC, kitchen and bath cabinets, janitorial supplies, landscaping equipment and supplies, motors, pumps, paints and coatings, plumbing, pool chemicals and supplies, hand-held general purpose tools, power tools, flooring, window coverings, and any other miscellaneous MRO supplies offered by Supplier. In addition, a complete range of services available through the Supplier such as, but not limited to, installation, renovation services, repair services, training services and any other related services offered by Supplier. 1.2.2 Related Products and Services (Including Installation, Repair and Renovation Services) - A complete range of related products and services offered by Supplier including, but not limited to, installation, repair and renovation services for replacements, upgrades, and remodeling in the residential, commercial and industrial environments relating to any of the following (non -inclusive): roofing, gutters, downspouts, HVAC, plumbing, electrical, exterior decks, patios and porches, exterior siding, windows and doors, interior and exterior painting, weatherization, ADA improvements, hose City Council 9 — 21 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP fabrication, hydraulic repairs, gearbox repairs, conveyor system repairs, vulcanizing, rubber fabrication, and any other types of residential, commercial and industrial environments. 2.0 SCOPE OF WORK: 2.1 MAINTENANCE, REPAIR, OPERATING SUPPLIES (MRO) AND RELATED SERVICES (INSTALLATION, REPAIR AND RENOVATION): Provide a complete and comprehensive offering of Wholesale and/or Retail MRO supplies such as appliances, building materials, hardware, fIVAC, kitchen and bath cabinets, janitorial supplies, landscaping equipment and supplies, motors, pumps, paints and coatings, plumbing, pool chemicals and supplies, hand-held general purpose tools, power tools, flooring, window coverings, and any other miscellaneous MRO supplies offered by Supplier. In addition, a complete range of services available through the Supplier such as, but not limited to, installation, renovation services, repair services, training services and any other related services offered by Supplier. 2.2 RELATED PRODUCTS AND SERVICES (INSTALLATION, REPAIR AND RENOVATION SERVICES): 2.2.1 Any related products offered by Supplier. 2.2.2 Services may also include replacements, upgrades, remodeling; and product, turnkey and major category installations. 2.2.3 Services performed shall be non-structural in nature. 2.2.4 Products used in performing these services shall be procured tinder the awarded contract, at contract prices. 2.2.5 These services may be required in the residential and commercial environments and may be any ofthe following (non -inclusive): 2.2.5.1 Roofing, Gutters, Downspouts 2.2.5.2 fIVAC 2.2.5 3 Plumbing 2.2.5.4 Electrical 2.2.5.5 Exterior decks, patios and porches 2.2.5.6 Exterior Siding 2.2.5.7 Windows, Doors 2.2.5.8 Interior/Exterior Painting 2.2.5.9 Weatherization - Storm Windows/Doors, Insulation, Weather Stripping 2.2.5.10 ADA Improvements 2.2.6 Services: 2.2.6.1 As part of your Proposal response, detail your firm's program in offering services including: 2.2.6.2 Providing and managing qualified contractors 2.2.6.3 Budget management in keeping projects on budget 2.2.6.4 Project management services in design, planning, organizing, scheduling and managing all stages o f a project. 2.2.7 Service Providers (Labor): 2.2.7.1 Contractor shall serve as the single point ofcontact between Participating Public Agencies and Service Providers. City Council 9 — 22 3/7/2023 EXHIBIT 1 2.3 SERIAL 16154-RFP 2.2.7.2 Contractor shall verify that all Service Providers are fully licensed for the type of work being performed in the respective state(s). 2.2.7.3 Contractor shall verify each Service Provider maintains at a minimum, the levels ofinsurance specified under in draft contract. 2.2.7.4 Contractor shall perform a background screen of all Service Providers consisting of(at aminimum): 2.2.7.4.1 National Employee Database 2.2.7.4.2 SSN Verification 2.2.7.4.3 National Criminal Database Check 2.2.7.4.4 Two County Search 2.2.7.4.5 Sex Offender Search 2.2.7.4.6 Annual Review (National Criminal Database) 2.2.7.4.7 Two (2) Year Complete Re -Screen and Renewal 2.2.7.4.8 Financial Background 2.2.7.5 All Service Provider employees shall wear a Service Provider's issued picture identification badge at all times. PRODUCT CATEGORIES: This Solicitation is to establish a nationwide purchasing agreement for the acquisition of the following products. The category descriptive examples below are not to be considered restrictive, but rather, provide a general, non -inclusive, description ofthe category. These are standard use in the residential, commercial, and industrial environments. Your firm may not have the ability to provide all categories. All products offered shall be new, unused and ofthe latest design and technology. The intent is for each Proposer to submit their complete product line so that Participating Public Agencies may order a wide array of product as appropriate for their needs. You may subcontract items your firm does not supply. 2.3.1 CATEGORY L APPLIANCES Large appliances: refrigerators, washers, dryers, dishwashing machines, stoves, cook -tops, range hoods and ovens; TVs, DVR's, small appliances: mixers, toasters, microwave ovens, food processors, disposals, trash compactors, and all ancillary supplies, tools, and components. 2.3.2 CATEGORY 2: BUILDING MATERIALS Lumber (dimensional and timber), nullwork, roofing, siding, plywood, paneling, hardwood, trim, molding, fencing, decking, gates, brick, block, doors, windows, bagged goods (concrete, mortar, sand, or asphalt), drywall, rebar, acoustical tiles, rain gutters, garage door openers, insulation, and all ancillary supplies, tools, and components. 2.3.3 CATEGORY 3: HARDWARE Fasteners (nuts/bolts, screws, washers, rivets, nails), builders hardware (hinges, gate hardware, barrel bolts/hasps, corner braces, shelf brackets, closet hardware, springs), threaded rod/steel shapes, anchors, padlocks, lock sets, wheels, casters, ball bearings, rope, chain, metal stock, dry cell batteries, fire extinguishers, signs, cabinet hardware, mail boxes, safes, drop boxes, weatherization products, and all ancillary supplies, tools, and components. 2.3.4 CATEGORY 4: HEATING, VENTILATION, AND AIR CONDITIONING (HVAC) Equipment, package units, evaporative coolers, tools, parts, ducting, air filtration, thermostats, portable and fixed heaters, tans, and all ancillary supplies, tools, and components. City Council 9 — 23 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 2.3.5 CATEGORY 5: KITCHEN AND BATH CABINETS Kitchen cabinets, bath vanities, countertops, medicine cabinets, mirrors, and all ancillary supplies, tools, and components. 2.3.6 CATEGORY 6: JANITORIAL SUPPLIES Cleaners, soaps, waxes, strippers, polishes, vacuums, brooms, mops, buckets, gloves, caiis, paper goods, and all ancillary supplies, tools, and components. 2.3.7 CATEGORY 7: LANDSCAPING EQUIPMENT AND SUPPLIES Lawn and landscape equipment (gasoline and electric), shovels, rakes, axes, hoes, hoses, nozzles, insect control, herbicides, feliilizers, plants, trees, sprinkler/irrigation equipment and supplies and all ancillary supplies, tools, an components. 2.3.8 CATEGORY 8. MOTORS/PUMPS Fractional and full horse, starters, pulleys, belts, fans, motor controls, and all ancillary supplies, tools, and components. 2.3.9 CATEGORY 9: PAINTS AND COATINGS All types of paints and coatings, wall paper, caulking, spray equipment, aerosol paints, pressure washers, sand blasters, finishes, abrasives, epoxy, cleaners, drywall supplies, tarps, compounds, adhesives, accessories, and all ancillary supplies, tools, and components. 2.3.10 CATEGORY 10: PLUMBING Equipment, parts, piping and fittings, water heaters, furnaces, disposals, pneumatic piping, filters, commodes, sinks, bathtubs, showers, shower doors, faucets, water conditioning equipment, water dispensing equipment, salt, and all ancillary supplies, tools, and components. 2.3.11 CATEGORY 11: POOL SUPPLIES Pool chemicals, tools, timers, pump/motor units, vacuum equipment, patio furniture, parts, and all ancillary supplies, tools, and components. 2.3.12 CATEGORY 12: TOOLS, HAND-HELD GENERAL PURPOSE Hand-held (electric, battery, or pneumatic operated), including accessories, automotive type tools, welding equipment, testing and measuring tools, carts and hand trucks, work benches, tool cabinets, ladders, and all ancillary supplies and components. 2.3.13 CATEGORY 13: TOOLS, POWER TYPE Electric or gas operated, mobile or stationary, bench or floor mounted, including accessories, and all ancillary supplies and components. 2.3.14 CATEGORY 14: FLOORING AND WINDOW COVERINGS All flooring, including but not limited to, vinyl plank, VCT, vinyl tile, ceramic tile, hardwood, carpet tile, carpet and cove base; blinds, shades, screens, window glass, mirrors, parts, and all ancillary supplies, tools, and components. 2.3.15 CATEGORY 15: HOSPITALITY Guest room supplies and appliances, personal care amenities, telephones, bed and bath linens, housekeeping cleaning supplies, public restroom supplies, carts, banquet and conference room supplies, guest room and suite furniture, fixtures, and equipment, pool and patio equipment, and other hospitality supplies. City Council 9 — 24 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 2.3.16 CATEGORY 16: WATER AND WASTE WATER TREATMENT Aeration, chart and data recorders, chemical feed, collection systems, flow metering, gauges, grounds maintenance, hose, hydrants, lab chemicals, equipment, and testing, location and leak detection, level and pressure, pipe, plugs, process analysis, primps, sampling equipment, storm water, tanks, tools, valves, and water treatment. 2.3.17 CATEGORY 17: MISCELLANEOUS Including, but not limited to: shelving (metal or wood composite), safety and emergency equipment, first aid supplies, conditioning salt, scaffolding (purchased), packaging supplies, communication supplies, electrical supplies, lighting supplies, office products, and property management products. 2.3.18 CATEGORY 18: IN STORE SERVICES Including, but not limited to: glass cutting, pipe threading, planning services (flooring and cabinet), verbal technical advice, special orders, rental equipment, etc. 2.4 PRODUCT ORDERING: 2.4.1 Contractors complete product line (Wholesale or Retail) shall be available for internet ordering 24/7. 2.4.2 Products may be ordered by any ofthe following methods: Internet Will Call (Phone or FAX order) 2.5 PRODUCT PRICING: 2.5.1 Wholesale: Pricing shall be a fixed percentage (%) offcatalog pricing by Product Category (Section 2.3 above) and a rebate on gross sales (see Exhibit A). Catalog price updates will be allowed once per year. 2.6 ON-LINE CATALOG DISCOUNT PRICING: Presently, the capability exists to access an on-line catalog reflecting contract pricing of all products. 2.7 RELATED PRODUCTS AND SERVICES (INSTALLATION, REPAIR AND RENOVATION SERVICES) PRICING: 2.7.1 All Participating Public Agencies shall receive a detailed written quotation for all services to be performed, and product(s) to be provided. 2.7.2 All quotations shall be for a "not to exceed" amount. 2.7.3 As an audit tool, the Contractor(s) shall provide a copy of the most current R.S. Means Bare Cost Data (including any city cost index adjustment) pertaining to all written quotations. 2.8 SALES REPORTING: Describe your firm's ability to provide detailed management reporting by Participating Public Agency. Identify the level(s) (Agency, Division, Department, Individual) of reporting detail available in the following categories: City Council 9 — 25 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 2.8.1 Sales Dollars 2.8.2 Sales histories by manufacturer, item description, part number, quantity, NIGP codes 2.8.3 Procurement card (MasterCard or Visa brand) 2.9 BRAND NAMES: The County reserves the right to request samples to determine quality and acceptability of materials bid by Contractor. In some cases, brand names have been listed in order to define the desired quality and are not intended to be restrictive or to limit competition. Materials substantially equivalent to those designated shall qualify for consideration. 2.10 DELIVERY, FREIGHT REQUIREMENTS: 2.10.1 All domestic ground shipments shall be FOB Destination, Freight Prepaid and Included. Any handling fees shall also be included in the pricing. 2.10.2 Should a Participating Public Agency determine that rush shipping or other alternate shipping is required, it shall notify the Contractor. The Contractor shall determine any additional costs associated with such delivery terms and communicate that cost to the Participating Public Agency. 2.103 The Proposer shall retain control for carrier selection and payment of freight charges of all goods until received by the requesting Pmiicipating Public Agency and the contract coverage completed. The Proposer shall also file all claims for visible or concealed damage. The Participating Public Agency will notify the Proposer of any damaged goods and shall assist the Proposer in arranging for inspection ofthe goods. 2.10.4 Any requests for local delivery of orders placed at local stores shall be subject to local delivery fees, ifapplicable. 2.10.5 Shipping and handling fees are allowable to destinations outside the continental U.S. 2.10.6 A packing list or other suitable shipping document shall accompany each shipment and shall include the following: 2.10.6.1 Contract Serial nurnber 2.10.6.2 Contractor's name and address 2.10.6.3 Participating Public Agency's name and address 2.10.6.4 Participating Public Agency's purchase order number 2,10.6.5 A description ofproduct(s) shipped, including item number(s), quantity(ies), as applicable 3.0 PROCUREMENT REQUIREMENTS: 31 SHIPPING TERMS: Bid price(s) and terms shall be F.O.B. Destination at ordering Agencies locations. 3.2 OPERATING MANUALS (Ifrequired): Upon delivery, Contractor shall provide comprehensive operational manuals, service manuals and schematic diagrams, ifrequired by the Using Agency. 3.3 INSTALLATION: (If required): The Contractor's price shall include delivery and installation of all equipment in a complete operating condition. City Council 9 — 26 3/7/2023 EXHIBIT 1 SERIAL. 16154-RFP 3.4 ACCEPTANCE: (Ifrequired): Upon delivery and successful installation, the material(s) shall be deemed accepted and the warranty period shall begin. All documentation shall be completed prior to final acceptance. 3.5 CONTRACTOR EMPLOYEE MANAGEMENT: 3.5.1 Contractor shall endeavor to maintain the personnel proposed in their offer throughout the implementation of the Solution. In the event that Contractor personnel's employment status changes, Contractor shall provide County a list of proposed candidates with equivalent experience with the Solution. County reserves the right to assist in the selection of the replacement candidate. Under no circumstances is it acceptable for the implementation schedule to be impacted by a personnel change on the part of the Contractor. 3.5.2 Contractor shall not reassign any provided personnel without the express consent ofthe County. 3.5.3 County reserves the right to immediately remove from its premises any Contractor personnel it determines is a risk to County operations. 35.4 County reserves the right to request the replacement of Contractor personnel at any time, for any reason. 3.6 TRAINING: The Contractor shall provide a minimum of TBD (hours or days) to completely train County personnel in the use and care of the equipment. All training is to take place on -site at Maricopa County. 3.7 WARRANTY: 3.7.1 All items furnished under this Contract shall conform to the requirements of this Contract. 3.7.2 The warranty period for workmanship shall be for an initial period of twelve (12) months and commence upon prompt acceptance by County. 3.7.2.1 The Contractor shall indicate on the Price Sheet the duration of the warranty and any applicable limitations or conditions which may apply. 3.7.2.2 The Contractor agrees that he will, at his own expense, provide all labor and parts required to remove, repair or replace, and reinstall any such defective workmanship which becomes or is found to be defective during the term of this warranty. 3.7.2.3 Notwithstanding the foregoing, with respect to materials provided hereunder, Contractor is a reseller of goods only, and as such does not provide any warranty for the goods it supplies hereunder. Notwithstanding this as -is limitation, Contractor shall pass through to County any transferrable manufacturer's standard warranties with respect to goods purchased hereunder. COUNTY AND PERSONS CLAIMING THROUGH COUNTY SHALL SEEK RECOURSE EXCLUSIVELY FROM MANUFACTURERS IN CONNECTION WITH ANY DEFECTS IN OR FAILURES OF GOODS, AND THIS SHALL BE THE EXCLUSIVE RECOURSE OF COUNTY AND PERSONS CLAIMING THROUGH COUNTY FOR DEFECTIVE GOODS, WHETHER THE CLAIM OF COUNTY OR THE PERSON CLAIMING THROUGH COUNTY SHALL SOUND IN CONTRACT, TORT, STRICT LIABILITY, PURSUANT TO STATUTE, OR FOR NEGLIGENCE. COUNTY SHALL PASS THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF GOODS. City Council 9 — 27 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP CONTRACTOR EXCLUDES AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CONTRACTOR ASSUMES NO RESPONSIBILITY WHATSOEVER FOR CONTRACTOR'S INTERPRETATION OF PLANS OR SPECIFICATIONS PROVIDED BY COUNTY, AND COUNTY'S ACCEPTANCE AND USE OF GOODS SUPPLIED HEREUNDER SHALL BE PREMISED ON FINAL APPROVAL BY COUNTY OR BY COUNTY'S RELIANCE ON ARCHITECTS, ENGINEERS, OR OTHER THIRD PARTIES RATHER THAN ON CONTRACTOR'S INTERPRETATION, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW. IN NO EVENT, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY OUT OF THE PERFORMANCE OR BREACH OF THESE TERMS, SHALL CONTRACTOR BE LIABLE FOR (a) ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, COINCIDENTAL OR SIMILAR DAMAGES SUCH AS LOSS OF USE, LOST PROFITS, ATTORNEY'S FEES OR DELAYED DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR CAUSED BY CONTRACTOR'S BREACH OF THIS AGREEMENT, (b) ANY CLAIM THAT PROPERLY IS A CLAIM AGAINST THE MANUFACTURER, OR (c) ANY AMOUNT EXCEEDING THE AMOUNT PAID TO CONTRACTOR FOR GOODS FURNISHED TO COUNTY WHICH ARE THE SUBJECT OF SUCH CLAIM(S). ALL CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF ACCRUAL OF A CAUSE ACTION. 3.8 USAGE REPORT: The Contractor shall furnish the County a usage report upon request delineating the acquisition activity governed by the Contract. The format of the repotl shall be approved by the County and shall disclose the quantity and dollar value of each contract item by individual unit. City Council 9 — 28 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 16154 EXHIBIT C FACILITIES MANAGEMENT REQUIREMENTS Maricopa County Facilities Management operation requirements. 1.0 HOURS OF SERVICE: 1.1 REGULAR HOURS are between 6:00 AM and 6:00 PM, Monday through Friday, excluding County holidays. 1.2 AFTER HOURS is after 6:00 PM and prior to 6:00 AM, Monday through Friday. 1.3 WEEKENDS are anytime Saturday or, Sunday. 1.4 HOLIDAYS are County Holidays (See County holiday schedule attachment). 1.5 Services shall be available 24 hours per day, 7 days per week, 365 days per year. 1.6 Contractor shall provide 24 hours per day, 7 days per week, 365 days per year telephone access, and respond to a call for services within thirty (30) minutes ofreceipt. 2.0 RESPONSE TIMES: 2.1 During REGULAR HOURS, AFTER HOURS, WEEKEND or HOL1DAYs, Contractor shall respond on -site within four (4) hours ofreceipt ofa service request. 2.2 Ifthe request is designated by the County as an EMERGENCY, the contractor shall respond on - site within two (2) hours ofreceipt of a service request regardless ofthe time of day, WEEKEND or HOLIDAY. 3.0 TRIP CHARGE: Trip charges are permitted when time and material work is requested at the following sites only: 3.1 MCSO Lake Aid Stations (Apache, Bartlett, Blue Point, Canyon and Saguaro) 3.2 County offices located in Gila Bend, AZ 3.3 County offices located in Buckeye, AZ 3.4 County offices located in Aguila, AZ 35 Only one trip charge may be charged per service call. 3.6 If the contractor arrives onsite and is unable to locate a County representative familiar with the work or unable to gain access to the work site, the Contractor may only bill for a trip charge (maximum one time daily trip charge not to exceed $50.00). The Contractor is not authorized to incur nor will the County accepting billing for any labor charges. 4.0 CONTRACTOR REQUIREMENTS: 4.1 Contractor(s) shall supply all labor, supervision, materials, tools, equipment, and effort necessary to perform the Scope of Work presented. 4.2 The Contractor's service truck fleet and/or warehouse shall carry sufficient supply ofrepair parts and equipment to perform services per Scope of Work presented. City Council 9 — 29 3/7/2023 EXHIBIT 1 SERIAL 16154-RFP 4.3 The Contractor agrees to utilize only experienced, responsible and capable people in the performance ofthe work. 4.4 All employees ofthe Contractor shall wear a company uniform identified with the company name consisting of minimum of one ofthe following: 4.4.1 Shirt/blouse 4.4.2 Vest 4.4.3 Cap 4.5 No one except authorized employees of the Contractor is allowed on the premises of Maricopa County. Contractor's employees are NOT to be accompanied in their work area by acquaintances, family members, assistants, or any other person unless said person is an authorized employee of the Contractor. 4.6 The Contractor shall perform the work in away to minimize disruption to the normal operation of building occupants. Upon completion of work the Contractor shall clean and remove from the job site all debris, materials and equipment associated with the work performed. 4.7 Contractor shall adhere to all regulations, rules, ordinances, and standards set by Federal, State, County, and Municipal governments pertaining to safety on thejob site. 5.0 BUILDING SECURITY (KEYS): 5.1 The Contractor may be provided keys to required County Facilities at the discretion of FMD. Keys may be acquired by: 5.2 The Contractor being provided permanent key(s), wherein the Contractor verities receipt of and accepts responsibility for keys. The keys must be returned at the completion ofthe work or at the direction of FMD. Keys not returned may cause the County to re -key the ENTIRE building or locations that the set of keys opened with the cost being borne by the Contractor. 5.3 In lieu of or in addition to keys, the Contractor may be provided card access badges at the discretion otFMD. 5.4 The Contractor shall notify FMD within twenty-four (24) hours if any keys are lost, misplaced, stolen or otherwise not within the Contractor's control. 5.5 Once the Purchase Order is complete, expired, or terminated the Contractor shall inmlediately return all badges and keys to FMD. 6.0 SALVAGE: Salvage rights shall be evaluated on a project by project basis by the County and shall be determined prior to incorporation in the contractor's bid price. Salvage rights automatically apply for all work if in the best interest to the County. Salvageable materials without pre -approved contractor salvage rights shall be securely stored and are not to be transported offthe site without written permission from Maricopa County. If contractor is given salvage rights, salvageable materials shall be removed daily. No on site storage of contractor's salvaged materials will be permitted. 7.0 INVOICES AND PAYMENTS: Invoices are required to contain the following information and should be e-mailed to FMD- ACCOUNTSPAYABLE(&N AIL.MARICOPA.GOV If invoices cannot be e-mailed, U.S. Mail is acceptable to Maricopa County Facilities Management, Accounts Payable, 401 W. Jefferson, Phoenix, Arizona 85003. 7.1 Company name, address and contact information 7.2 County bill -to name and contact/requestor information City Council 9 — 30 3/7/2023 EXHIBIT 1 SERIAL. 16154-RFP 73 Building Name and Building Number 7.4 County purchase order number 75 County contract number 7.6 Maximo (FMD) service call number 7.7 Invoice number and date 7.8 Date o f service or delivery 7.9 Description ofPurchase (services performed) 7.10 Labor breakdown: rate per hour x no. of hours by personnel type (time & materials) 7.11 Material breakdown: itemized parts list to contain unit price x quantity, indicating mark-ups as contracted (time & materials) 7.I2 Arrival and completion time 7.13 Total Amount Due with tax amounts separated. Must also clearly indicate the tax rate being applied 7.I4 Payment Terns For Time & Material work, Contractor(s) must provide, all equipment, expendable shop supplies (rags, cleaners, solvents, gasses, etc.), miscellaneous parts (screws, bolts nuts, small items etc.), tools, etc. necessary to perform all the required services. Contractor(s) are allowed a one-time Misc. Shop fee charge of tip to $25.00 per work order to cover these type of expenses. Anything beyond the $25 limit, will be provided at the contractor's own expense. 8.0 CONTRACTOR EMPLOYEE BACKGROUND CHECK: A background check is required for all Contractor employees providing services to the County. The cost of this service shall be incurred by the County. No Contractor employee may access County property without approval ofFMD. City Council 9 — 31 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P Sourcewell � Solicitation Number: RFP#013020 CONTRACT This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Snap -on Industrial, A Division of IDSC Holdings LLC, 2801 801" St., Kenosha, WI 53143 (Vendor). Sourcewell is a State of Minnesota local government agency and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to its members. Participation is open to all levels of governmental entity, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada. Vendor desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and its Members (Members) in the United States only. 1. TERM OF CONTRACT A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below. B. EXPIRATION DATE AND EXTENSION. This Contract expires April 13, 2024, unless it is cancelled sooner pursuant to Article 24. This Contract may be extended up to one additional one-year period upon request of Sourcewell and with written agreement by Vendor. C. SURVIVAL OF TERMS. Articles 11 through 16 survive the expiration or cancellation of this Contract. 2. EQUIPMENT, PRODUCTS, OR SERVICES A. EQUIPMENT, PRODUCTS, OR SERVICES. Vendor will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above. Vendor's Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract. All Equipment and Products provided under this Contract must be new/current model. Vendor may offer close-out or refurbished Equipment or Products if they are clearly indicated in Vendor's product and pricing list. Unless agreed to by the Member in advance, Equipment or Products must be delivered as operational to the Member's site. Rev. 4/2019 City Council 9 — 32 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed. B. WARRANTY. Vendor warrants that all Equipment, Products, and Services furnished are free from liens and encumbrances, and are free from defects in design, materials, and workmanship. In addition, Vendor warrants the Equipment, Products, and Services are suitable for and will perform in accordance with the ordinary use for which they are intended. Vendor's dealers and distributors must agree to assist the Member in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer's warranty that is effective past the expiration of the Vendor's warranty will be passed on to the Member. C. DEALERS AND DISTRIBUTORS. Upon Contract execution, Vendor will make available to Sourcewell a means to validate or authenticate Vendor's authorized Distributors/Dealers relative to the Equipment, Products, and Services related to this Contract. This list may be updated from time -to -time and is incorporated into this Contract by reference. It is the Vendor's responsibility to ensure Sourcewell receives the most current version of this list. 3. PRICING All Equipment, Products, or Services under this Contract will be priced as stated in Vendor's Proposal. In the event the IPLHF7 net price for any item falls below Snap-on's delivered GSA price, Snap -on will have the option to remove the product from its contract offering or increase contract price to 1% above delivered GSA net. Regardless of the payment method chosen by the Member, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Member at the time of purchase. When providing pricing quotes to Members, all pricing quoted must reflect a Member's total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Member's requested delivery location. A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Vendor must permit the Equipment and Products to be returned within a reasonable time at no cost to Sourcewell or its Members. Members reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery. Vendor must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition. Rev. 4/2019 City Council 9 — 33 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P Sourcewell may declare the Vendor in breach of this Contract if the Vendor intentionally delivers substandard or inferior Equipment or Products. In the event of the delivery of nonconforming Equipment and Products, the Member will notify the Vendor as soon as possible and the Vendor will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Member. B. SALES TAX. Each Member is responsible for supplying the Vendor with valid tax -exemption certification(s). When ordering, Members must indicate if it is a tax-exempt entity. C. HOT LIST PRICING. At anytime during this Contract, Vendor may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract. When Vendor determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line -item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below. Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Members. 4. PRODUCT AND PRICING CHANGE REQUESTS Vendor may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Contract Administrator. This form is available from the assigned Sourcewell Contract Administrator. At a minimum, the request must: • Identify the applicable Sourcewell contract number • Clearly specify the requested change • Provide sufficient detail to justify the requested change • Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change) • Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged. A fully executed Sourcewell Price and Product Request Form will be become an amendment to this Contract and be incorporated by reference. Rev. 4/2019 City Council 9 — 34 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P S. MEMBERSHIP, CONTRACT ACCESS, AND MEMBER REQUIREMENTS A. MEMBERSHIP. Membership in Sourcewell is open to public and nonprofit entities across the United States and Canada; such as municipal, state/province, K-12 and higher education, tribal government, and other public entities. The benefits of this Contract should be available to all Members that can legally access the Equipment, Products, or Services under this Contract within the United States. A Member's authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Vendor understands that a Member's use of this Contract is at the Member's sole convenience and Members reserve the right to obtain like Equipment, Products, or Services from any other source. Vendor is responsible for familiarizing its sales and service forces with Sourcewell membership requirements and documentation and will encourage potential members to join Sourcewell. Sourcewell reserves the right to add and remove Members to its roster during the term of this Contract. B. PUBLIC FACILITIES. Vendor's employees maybe required to perform work at government - owned facilities, including schools. Vendor's employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Member policies and procedures, and all applicable laws. 6. MEMBER ORDERING AND PURCHASE ORDERS A. PURCHASE ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, Member must clearly indicate to Vendor that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Vendor. Typically a Member will issue a purchase order directly to Vendor. Members may use their own forms for purchase orders, but it should clearly note the applicable Sourcewell contract number. Members will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Member. Snap -on reserves the right to refuse service to any Sourcewell member based on credit worthiness. B. ADDITIONAL TERMS AND CONDITIONS. Additional terms and conditions to a purchase order may be negotiated between a Member and Vendor, such as job or industry -specific requirements, legal requirements (such as affirmative action or immigration status requirements), or specific local policy requirements. Any negotiated additional terms and conditions must never be less favorable to the Member than what is contained in Vendor's Proposal. C. PERFORMANCE BOND. If requested by a Member, Vendor will provide a performance bond that meets the requirements set forth in the Member's purchase order. 4 Rev. 4/2019 City Council 9 — 35 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P D. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Member requires service or specialized performance requirements (such as e-commerce specifications, specialized delivery requirements, or other specifications and requirements) not addressed in this Contract, the Member and the Vendor may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement. E. TERMINATION OF PURCHASE ORDERS. Members may terminate a purchase order, in whole or in part, immediately upon notice to Vendor in the event of any of the following events: 1. The Member fails to receive funding or appropriation from its governing body at levels sufficient to pay for the goods to be purchased; 2. Federal or state laws or regulations prohibit the purchase or change the Member's requirements; or 3. Vendor commits any material breach of this Contract or the additional terms agreed to between the Vendor and a Member. F. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Member's purchase order will be determined by the Member making the purchase. 7. CUSTOMER SERVICE A. PRIMARY ACCOUNT REPRESENTATIVE. Vendor will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for: • Maintenance and management of this Contract; • Timely response to all Sourcewell and Member inquiries; and • Business reviews to Sourcewell and Members, if applicable. B. BUSINESS REVIEWS. Vendor must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to members, pricing and contract terms, administrative fees, supply issues, customer issues, and any other necessary information. 8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Vendor must provide a contract sales activity report (Report) to the Sourcewell Contract Administrator assigned to this Contract. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Vendor must submit a report indicating no sales were made). Rev. 4/2019 City Council 9 — 36 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P The Report must contain the following fields: • Customer Name (e.g., City of Staples Highway Department); • Customer Physical Street Address; • Customer City; • Customer State; • Customer Zip Code; • Customer Contact Name; • Customer Contact Email Address; • Customer Contact Telephone Number; • Sourcewell Assigned Entity/Member Number; • Item Purchased Description; • Item Purchased Price; • Sourcewell Administrative Fee Applied; and • Date Purchase was invoiced/sale was recognized as revenue by Vendor. B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Vendor will pay an administrative fee to Sourcewell on all Equipment, Products, and Services provided to Members. The Vendor will submit a check payable to Sourcewell for one percent (1%) multiplied by the total sales of all Equipment, Products, and Services purchased by Members under this Contract during each calendar quarter. Payments should note the Sourcewell-assigned contract number in the memo and must be mailed to the address above "Attn: Accounts Receivable." Payments must be received no later than forty-five (45) calendar days after the end of each calendar quarter. Vendor agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract. In the event the Vendor is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Vendor in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract's expiration date, the administrative fee payment will be due no more than thirty (30) days from the cancellation date. 9. AUTHORIZED REPRESENTATIVE Sourcewell's Authorized Representative is its Chief Procurement Officer. Vendor's Authorized Representative is the person named in the Vendor's Proposal. If Vendor's Authorized Representative changes at any time during this Contract, Vendor must promptly notify Sourcewell in writing. Rev. 4/2019 L City Council 9 — 37 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P 10. ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE A. ASSIGNMENT. Neither the Vendor nor Sourcewell may assign or transfer any rights or obligations under this Contract without the prior consent of the parties and a fully executed assignment agreement. Such consent will not be unreasonably withheld. B. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been fully executed by the parties. C. FEDERAL TRANSIT ADMINISTRATION. Sourcewell reserves the right to amend this Contract to include requirements relating to any subsequent changes affecting the use of inter- governmental cooperative purchasing agreements by FTA grant recipients. D. WAIVER. If either party fails to enforce any provision of this Contract, that failure does not waive the provision or the right to enforce it. E. CONTRACT COMPLETE. This Contract contains all negotiations and agreements between Sourcewell and Vendor. No other understanding regarding this Contract, whether written or oral, may be used to bind either party. F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, master - servant, principal -agent, or any other relationship. Fllimi/_1:1111111rr1 Vendor must indemnify, save, and hold Sourcewell and its Members, including their agents and employees, harmless from any claims or causes of action, including attorneys' fees, arising out of the performance of this Contract by the Vendor or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications. 12. AUDITS Sourcewell reserves the right to review the books, records, documents, and accounting procedures and practices of the Vendor relevant to this Contract for a minimum of six (6) years from the end of this Contract. This clause extends to Members as it relates to business conducted by that Member under this Contract. Rev. 4/2019 City Council 9 — 38 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P 13. GOVERNMENT DATA PRACTICES Vendor and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Vendor under this Contract. If the Vendor receives a request to release the data referred to in this article, the Vendor must immediately notify Sourcewell and Sourcewell will assist with how the Vendor should respond to the request. 14. INTELLECTUAL PROPERTY As applicable, Vendor agrees to indemnify and hold harmless Sourcewell and its Members against any and all suits, claims, judgments, and costs instituted or recovered against Sourcewell or Members by any person on account of the use of any Equipment or Products by Sourcewell or its Members supplied by Vendor in violation of applicable patent or copyright laws. 15. PUBLICITY, MARKETING, AND ENDORSEMENT A. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Vendor individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract. B. MARKETING. Any direct advertising, marketing, or offers with Members must be approved by Sourcewell. Materials should be sent to the Sourcewell Contract Administrator assigned to this Contract. C. ENDORSEMENT. The Vendor must not claim that Sourcewell endorses its Equipment, Products, or Services. 16. GOVERNING LAW, JURISDICTION, AND VENUE Minnesota law governs this Contract. Venue for all legal proceedings out of this Contract, or its breach, must be in the appropriate state court in Todd County or federal court in Fergus Falls, Minnesota. Rev. 4/2019 City Council 9 — 39 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P 17. FORCE MAJEURE Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party's reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default. 18. SEVERABILITY If any provision of this Contract is found to be illegal, unenforceable, or void then both Sourcewell and Vendor will be relieved of all obligations arising under such provisions. If the remainder of this Contract is capable of performance, it will not be affected by such declaration or finding and must be fully performed. 19. PERFORMANCE, DEFAULT, AND REMEDIES A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows: 1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Vendor will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties. 2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Vendor may escalate the resolution of the issue to a higher level of management. The Vendor will have thirty (30) calendar days to cure an outstanding issue. 3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Vendor must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Vendor fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, any additional costs incurred by Sourcewell and/or its Members as a result of such failure to proceed will be borne by the Vendor. B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Member order under this Contract, in default: 1. Nonperformance of contractual requirements, or 2. A material breach of any term or condition of this Contract. Written notice of default and a reasonable opportunity to cure must be issued by the party claiming default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non -defaulting party may: Rev. 4/2019 City Council 9 — 40 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P • Exercise any remedy provided by law or equity, or • Terminate the Contract or any portion thereof, including any orders issued against the Contract. 20. INSURANCE A. REQUIREMENTS. At its own expense, Vendor must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an "AM BEST" rating of A- or better, with coverage and limits of insurance not less than the following: 1. Workers' Compensation and Employer's Liability. Workers' Compensation: As required by any applicable law or regulation. Employer's Liability Insurance: must be provided in amounts not less than listed below: 1l711 .0 u $500,000 each accident for bodily injury by accident $500,000 policy limit for bodily injury by disease $500,000 each employee for bodily injury by disease 2. Commercial General Liability Insurance. Vendor will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office ("ISO") Commercial General Liability Form CG0001 (2001 or newer edition). At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products -completed operations including construction defect, contractual liability, will be provided as broad as that which is provided by the CGL Form CG 00 01 0413 or its equivalent, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract. Minimum Limits: $1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury $2,000,000 aggregate for Products -Completed operations $2,000,000 general aggregate 3. Commercial Automobile Liability Insurance. During the term of this Contract, Vendor will maintain insurance covering all owned, hired, and non -owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer). Minimum Limits: $1,000,000 each accident, combined single limit 4. Umbrella Insurance. During the term of this Contract, Vendor will maintain umbrella coverage over Workers' Compensation, Commercial General Liability, and Commercial Automobile. 10 Rev. 4/2019 City Council 9 — 41 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P Minimum Limits: $2,000,000 5. Professional/Technical, Errors and Omissions, and/or Miscellaneous Liability. During the term of this Contract, Vendor will maintain coverage for all claims the Vendor may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Vendor's professional services required under this Contract. Minimum Limits: $2,000,000 per claim or event $2,000,000 — annual aggregate 6. Network Security and Privacy Liability Insurance. During the term of this Contract, Vendor will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Vendor's security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data — including but not limited to, confidential or private information, transmission of a computer virus, or denial of service. Minimum limits: $2,000,000 per occurrence $2,000,000 annual aggregate Failure of Vendor to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default. B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Vendor must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Contract Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf. All policies must include there will be no cancellation, suspension, non -renewal, or reduction of coverage without thirty (30) days' prior written notice to the Vendor. Upon request, Vendor must provide to Sourcewell copies of applicable certificates and endorsements, within ten (10) days of a request. Failure to request certificates of insurance by Sourcewell, or failure of Vendor to provide certificates of insurance, in no way limits or relieves Vendor of its duties and responsibilities in this Contract. C�13D7D]IIM01F_1x1►F-1111111J:l111l11101pie]:M911LTA I11101r_\0101201t•Y3279301117,to] i 9i1i1011:l1:l112ri]IkYA INSURANCE CLAUSE. Vendor agrees to name Sourcewell and its Members, including their officers, agents, and employees, as an additional insured under the Vendor's commercial general liability insurance policy with respect to liability arising out of activities, "operations," or 11 Rev. 4/2019 City Council 9 — 42 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P "work" performed by or on behalf of Vendor, and products and completed operations of Vendor. The policy provision(s) or endorsement(s) must further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds. D. WAIVER OF SUBROGATION. Vendor waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other insurance applicable to the Vendor or its subcontractors. The waiver must apply to all deductibles and/or self -insured retentions applicable to the required or any other insurance maintained by the Vendor or its subcontractors. Where permitted by law, Vendor must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors. E. UMBRELLA/EXCESS LIABILITY. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies). F. SELF -INSURED RETENTIONS. Any self -insured retention in excess of $10,000 is subject to Sourcewell's approval. 21. COMPLIANCE A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold. B. LICENSES. Vendor must maintain a valid status on all required federal, state, and local licenses, bonds, and permits required for the operation of the business that the Vendor conducts with Sourcewell and Members. 22. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION Vendor certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Vendor declares bankruptcy, Vendor must immediately notify Sourcewell in writing. Vendor certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota, the United States federal government, or any Member. Vendor certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Vendor further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time. 12 Rev. 4/2019 City Council 9 — 43 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P 23. PROVISIONS FOR NON -UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER UNITED STATES FEDERAL AWARDS OR OTHER AWARDS Members that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Members may also require additional requirements based on specific funding specifications. Within this Article, all references to "federal" should be interpreted to mean the United States federal government. The following list only applies when a Member accesses Vendor's Equipment, Products, or Services with United States federal funds. A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of "federally assisted construction contract" in 41 C.F.R. § 60- 1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 C.F.R. § 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." The equal opportunity clause is incorporated herein by reference. B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- federal entities must include a provision for compliance with the Davis -Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with the Copeland "Anti -Kickback" Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Vendor must be in compliance with all applicable Davis -Bacon Act provisions. 13 Rev. 4/2019 City Council 9 — 44 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. § 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5). Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Vendor certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Vendor must comply with applicable requirements as referenced above. D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACTOR AGREEMENT. If the federal award meets the definition of "funding agreement" under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency. Vendor certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Vendor must comply with applicable requirements as referenced above. E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). Vendor certifies that during the term of this Contract will comply with applicable requirements as referenced above. F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Vendor 14 Rev. 4/2019 City Council 9 — 45 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency. G. BYRD ANTI -LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Vendors must file any required certifications. Vendors must not have used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Vendors must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Vendors must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti -Lobbying Amendment (31 U.S.C. § 1352). H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Vendor must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Vendor further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of three (3) years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed. I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Vendor must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Vendor must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition. K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Vendor agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and records of Vendor that are directly pertinent to Vendor's discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Vendor's personnel for the purpose of interview and discussion relating to such documents. L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a 15 Rev. 4/2019 City Council 9 — 46 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D EXHIBIT 2 013020-SN P satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. 24. CANCELLATION Sourcewell or Vendor may cancel this Contract at any time, with or without cause, upon sixty (60) days' written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Vendor's Proposal. Termination of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to termination. Sourcewell DocuSigned by: E By: 9D06489. Jeremy Schwartz Title: Director of Operations & Procurement/CPO Date:4/14/2020 1 3:07 PM CDT Approved: DocuSigned by, By: _p l loot, 7E42BSF817A64CC... Chad Coauette Title: Executive Director/CEO Date: 4/14/2020 1 3:50 PM CDT Rev. 4/2019 Snap -on Industrial, A Division of IDSC Holdings LLC DocuSigned by: �of a. wi' By:OKA - 86AB7D550A6A4CC... Bart A. Wignall Title: President, Industrial Division & Vice President, IDSC Holdings LLC Date: 4/14/2020 1 1:45 PM PDT City Council 9 — 47 3/7/2023 DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D A= : Im RFP 013020 - Vehicle Lifts, with Garage and Fleet Maintenance Equipment Vendor Details Company Name: Snap -on Industrial, A Division of IDSC Holdings LLC Does your company conduct business under any other name? If Snap -on Industrial yes, please state: 2801 80th St. Address: Kenosha, Wisconsin 53143 Contact: Randie Van Ness Email: randie.l.vanness@snapon.com Phone: 386-527-4101 Fax: 407-328-8943 HST#: 364070294 Submission Details Created On: Friday January 03, 2020 10:22:45 Submitted On: Wednesday January 29, 2020 16:37:40 Submitted By: Randie Van Ness Email: randie.l.vanness@snapon.com Transaction #: 52c32468-14ee-42bf-a710-05f65e2be6de Submitter's I Address: 97.103.24.95 Bid Number: RPAY199mcil Vendor Ameftnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D WIMM : Im Specifications Table 1: Proposer Identity & Authorized Representatives General Instructions (applies to all Tables) Sourcewell prefers a brief but thorough response to each question. Please do not merely attach additional documents to your response without also providing a substantive response. Do not leave answers blank; mark "NA" if the question does not apply to you (preferably with an explanation). Line Item Question Response* 1 Proposer Legal Name (and Snap -on Industrial, A Division of IDSC Holdings LLC applicable d/b/a, if any): 2 Proposer Address: 2801 80th St. Kenosha, WI 53143 3 Proposer website address: www.snapon.com 4 Proposer's Authorized John Gowey, Vice President- Sales North America Critical Industries, 2801 80th St. Kenosha, WI Representative (name, title, 53143, John. C.Gowey@snapon.com, 262-646-4712 address, email address & phone) (The representative must have authority to sign the "Proposer's Assurance of Compliance" on behalf of the Proposer and, in the event of award, will be expected to execute the resulting contract): 5 Proposer's primary contact for this Bobby Draper, National Contract Manager, 2801 80th St. Kenosha, WI 53143 proposal (name, title, address, Robert. L. Draper@snapon.com, 985-807-3111 email address & phone): 6 Proposer's other contacts for this Randie Van Ness, National Contract and Project Manager, 2801 80th St. Kenosha, WI 53143 proposal, if any (name, title, Rand ie.L.Vanness@snapon.com, 386-527-4101 address, email address & phone): Bid Number: RotV199mcil Vendor Ameftnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Table 2: Company Information and Financial Strength A= : Im Item Question Response* 7 Provide a brief history of your company, Snap -on Industrial's parent company, Snap -on Incorporated, a $3.7 billion, S&P 500 including your company's core values, Company headquartered in Kenosha, Wisconsin, was founded in 1920 and is a business philosophy, and industry longevity leading global innovator, manufacturer and marketer of tools and equipment for related to the requested equipment, products professional users performing critical tasks. Products and services include hand and or services. power tools, tool storage, fleet maintenance diagnostics, garage equipment and shop tools. Snap -on Industrial services customers in various industries, including fleet, state and local governments, technical education, maintenance, military, power generation and aerospace. 8 Provide a detailed description of the products All products listed in section B, 1 and 2 of the RFP with the exception of exhaust and services that you are offering in your ventilation systems and vehicle wash systems. proposal. 9 What are your company's expectations in the The contract will provide a multi -million dollar contractual pathway for many public event of an award? sector customers to access Snap -on products. 10 Demonstrate your financial strength and Snap -on Incorporated, a 100 year old company, is traded on the NYSE under the stability with meaningful data. This could symbol SNA. The company enjoys exceptional financial strength. Snap -on include such items as financial statements, Incorporated's most recent (2018) Annual Report is attached, detailing all relevant SEC filings, credit and bond ratings, letters financial information. of credit, and detailed reference letters. Upload supporting documents (as applicable) in the document upload section of your response. 11 What is your US market share for the Snap -on enjoys strong market share across its entire product line. According to the solutions that you are proposing? 2018 Frost and Sullivan survey of United States Automotive Technicians, Snap-on's market share for hand tools is 73%, 63% for diagnostic equipment, 55% for power tools and 72% for tool storage. 12 What is your Canadian market share, if any? Not applicable for this proposal. 13 Has your business ever petitioned for No. bankruptcy protection? If so, explain in detail. 14 How is your organization best described: is it "B". Snap -on is the manufacturer and direct marketer of its products. Snap -on a manufacturer, a distributor/dealer/reseller, or Industrial's employee sales team consists of Account Managers, Sales Managers and a service provider? Answer whichever Business Managers supported by a National Industrial Customer Service Center, question (either a) or b) just below) best Corporate Contract Administration and Contract Management. applies to your organization. a) If your company is best described as a distributor/dealer/reseller (or similar entity), provide your written authorization to act as a distributor/dealer/reseller for the manufacturer of the products proposed in this RFP. If applicable, is your dealer network independent or company owned? b) If your company is best described as a manufacturer or service provider, describe your relationship with your sales and service force and with your dealer network in delivering the products and services proposed in this RFP. Are these individuals your employees, or the employees of a third party? 15 If applicable, provide a detailed explanation Snap -on products meet or exceed all industry certifications. All standard lift products outlining the licenses and certifications that are ALI certified. Snap -on Industrial is registered to do business in all 50 US states. are both required to be held, and actually held, by your organization (including third parties and subcontractors that you use) in pursuit of the business contemplated by this RFP. 16 Provide all "Suspension or Debarment" Snap -on Industrial has had no suspensions or debarments in the last 10 years. information that has applied to your organization during the past ten years. 17 Within this RFP category there may be Snap -on Industrial offers product solutions in all subcategories except II.B.2.e and g. subcategories of solutions. List subcategory Snap-on's entire product offering can be found at: www.snapon.com. PDF catalog has titles that best describe your products and been attached in the file under marketing materials. services. Bid Number: RotV199mcil Vendor AmeRnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Table 3: Industry Recognition & Marketplace Success A= : Im Line Item Question Response' 18 Describe any relevant industry awards or Snap -on regularly receives recognition for its innovative products. In 2019 recognition that your company has received Professional Tools & Equipment News (PTEN) designated 10 Snap -on products in the past five years for "People's Choice" Awards. Recognition was given for advanced digital multimeters, tire pressure monitoring systems, refrigerant recovery equipment, heavy duty of -road creepers, air -assist telescopic transmission jack, magnetic mountable headlamp, heavy duty shop carts, Advanced Drivers Assistant Systems (ADAS) software, automotive scan tools and digital thermal imaging. 19 What percentage of your sales are to the Sales to government sector customers, including Federal, state and local, over the governmental sector in the past three years last 3 years averaged 24% of total Snap -on Industrial sales. 20 What percentage of your sales are to the Sales to educational customers over the last 3 years averaged 16% of total Snap - education sector in the past three years on Industrial sales. 21 List any state or cooperative purchasing Texas (GSA MAS) - 2019 - $1.1M, 2018 - $1.1M, 2017 - $1.3M contracts that you hold. What is the annual Ohio (GSA MAS) — 2019 - $1.3M, 2018 - $1.4M, 2017 - $1.4M sales volume for each of these contracts California (GSA MAS) — 2019 - $5.3M, 2018 - $2.3M, 2017 - $2.7M over the past three years? NASPO Vehicle Lifts and Garage Associated Equipment- 2019 - $4.2M, 2018 - $2.5M, 2017 - $.7M* *Implemented May 2017. NASPO Professional Grade Tools and Diagnostic Equipment- 2019 - $15M, 2018 - $22.5M**, 2017 - $17M `Combination of Small Hand and Power Tool Contract (expired August 2018) and Professional Grade Tools and Diagnostic Equipment. 22 List any GSA contracts that you hold. What Contract, 47QSHA19D005N. Sales-, 2019 — $29.3M, 2018 — $24.8M, 2017 — is the annual sales volume for each of these $18.7M contracts over the past three years? Table 4: References/Testimonials Line Item 23. Supply reference information from three customers who are eligible for Sourcewell membership. Entity Name* Contact Name Phone Number* Louisiana Department of Corrections John Easley 985-507-3013 Clark County Nevada John Boris 702-455-8545 Township High School District 211 Barb Peterson 847-755-6669 Bid Number: RotV199mcil Vendor Ame5tnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Table 5: Top Five Government or Education Customers A= : Im Line Item 24. Provide a list of your top five government, education, or non-profit customers (entity name is optional), including entity type, the state or province the entity is located in, scope of the project(s), size of transaction(s), and dollar volumes from the past three years. Entity Name Entity Type " State / Scope of Work Size of Transactions Dollar Volume Past Three Province' Years ` Government- Government New York -NY Multiple purchases of hand and Multiple transaction values. 2019- $1.1M, 2018- Local power tools, tool storage, $1.3M and 2017- $1.3M diagnostic, fleet management and undercar equipment. Education- Education California - CA Multiple purchases of hand and Multiple transaction values. 2019- $.6M, 2018- $AM Secondary power tools, tool storage, and 2017- $.2M diagnostic, fleet management and undercar equipment. Education- Education Tennessee - TN Multiple purchases of hand and Multiple transaction values. 2019- $.5M, 2018- $.1M Post Secondary power tools, tool storage, and 2017- $.7M diagnostic, fleet management and undercar equipment. Education- Education Pennsylvania - Multiple purchases of hand and Multiple transaction values. 2019- $AM, 2018- $.5M Technicial PA power tools, tool storage, and 2017- $.6M diagnostic, fleet management and undercar equipment. Education- Education Texas -TX Multiple purchases of hand and Multiple transaction values. 2019- $AM, 2018- .2M, Secondary power tools, tool storage, 2017- $.07M diagnostic, fleet management and undercar equipment. Table 6: Ability to Sell and Deliver Service Describe your company's capability to meet the needs of Sourcewell Members across the US, and Canada if applicable -Your response should address in detail at least the following areas: locations of your network of sales and service providers, the number of workers (full- time equivalents) involved in each sector, whether these workers are your direct employees (or employees of a third party), and any overlap between the sales and service functions. Line Item Question Response* 25 Sales force. Snap -on Industrial's US employee sales team consists of 305 Account Managers, Sales Managers and Business Managers disbursed throughout all 50 states. 26 Dealer network or other distribution methods. No dealers, franchisees or distributors will be used in the performance of this contract. 27 Service force. Three Snap -on Repair Centers - Eastern, Western and Northern - service tools and equipment in addition to Snap-on's network of 78 Field Service Technicians and 37 Authorized Independent Service Contractors. 28 Describe in detail the process and Snap -on Industrial's National Industrial Service Center, Account Managers and Sales procedure of your customer service Managers are the primary points of contact for customer service, product warranty and program, if applicable. Include your repairs. All calls and inquiries are responded to in a timely manner. response -time capabilities and commitments, as well as any incentives that help your providers meet your stated service goals or promises. 29 Identify any geographic areas of the United Snap -on Industrial offers full US coverage, however, no sales or service is offered States or Canada that you will NOT be fully under this proposal for Canada or the US Territories. serving through the proposed contract. 30 Identify any Sourcewell Member sectors Snap -on Industrial will service all Sourcewell members in the US. (i.e., government, education, not -for -profit) that you will NOT be fully serving through the proposed contract. Explain in detail. For example, does your company have only a regional presence, or do other cooperative purchasing contracts limit your ability to promote another contract? 31 Define any specific contract requirements or Snap -on Industrial will have no additional contract requirements or restrictions for restrictions that would apply to our Sourcewell members in Alaska or Hawaii, however, the US Territories are excluded Members in Hawaii and Alaska and in US under this agreement. Territories. Bid Number: RotV199MCH Vendor A rleRnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Table 7: Marketing Plan WIMM : Im Item Question Response* 32 Describe your marketing strategy for In addition to Snap-on's full line catalog, marketing materials are distributed by Account promoting this contract opportunity. Managers during onsite sales calls as well as electronically. Catalog 1400i and examples of Upload representative samples of your typical quarterly brochures have been uploaded. marketing materials (if applicable) in the document upload section of your response. 33 Describe your use of technology and Snap -on Industrial has a dedicated website, https://b2b.snapon.com/, a digital catalog digital data (e.g., social media, website and social media presence on YouTube, Facebook, Twitter and Instagram. metadata usage) to enhance marketing effectiveness. 34 In your view, what is Sourcewell's role Snap -on Industrial would look to Sourcewell to continue to build its member base. Snap -on in promoting contracts arising out of would promote the contract and membership through the Industrial sales force with this RFP? How will you integrate a marketing materials containing contract information and product offering. Sourcewell-awarded contract into your sales process? 35 Are your products or services Snap -on Industrial has an eCat website for eligible registered members to procure items at available through an e-procurement contract prices. The ability to interface for EDI, Ariba and other electronic purchasing ordering process? If so, describe your platforms is also available. e-procurement system and how governmental and educational customers have used it. Bid Number: RotV199MCH Vendor A rleRnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Table 8: Value -Added Attributes A= : Im Item ine Question Response' 36 Describe any product, equipment, Standard product training is provided by Snap -on Industrial sales personnel as a no -charge, maintenance, or operator training value-added service. Optional advanced training is offered, from time to time, on select programs that you offer to topics and products. Charges, if any, vary and are published at time of offering. Sourcewell Members. Include details, such as whether training is standard or optional, who provides training, and any costs that apply. 37 Describe any technological Since its founding 100 years ago, one of Snap-on's core beliefs has been fearless advances that your proposed innovation. There's no better metric for measuring its success in that area than the number products or services offer. of patents it holds. Snap -on has been awarded over 3,300 patents; more than 1,700 of these have been awarded in the last 20 years, evidencing the accelerating pace of innovation. 38 Describe any "green" initiatives Snap -on is committed to creating quality products, while providing a safe and healthy that relate to your company or to workplace and acting as an environmentally responsible neighbor. A copy of Snap-on's your products or services, and Corporate Responsibility Statement and Environmental Health Policy is included in the include a list of the certifying uploaded documents.. agency for each. 39 Identify any third -party issued eco- Snap-on's product families are not classified into any of these categories. labels, ratings or certifications that your company has received for the equipment or products included in your Proposal related to energy efficiency or conservation, life -cycle design (cradle -to -cradle), or other green/sustainability factors. 40 Describe any Women or Minority Snap -on has an established supplier diversity process to ensure minority, women -owned and Business Entity (WMBE), Small veteran -owned businesses have equal access to internal contract opportunities. See uploaded Business Entity (SBE), or veteran Supplier Diversity Statement for more details. owned business certifications that your company or hub partners have obtained. Upload documentation of certification (as applicable) in the document upload section of your response. 41 What unique attributes does your Snap -on products are a preferred brand of choice in the marketplace. This status was company, your products, or your obtained through 100 years of creating value for Snap -on customers. Selling directly to services offer to Sourcewell customers maximizes the opportunity for customer feedback and focuses efforts on providing Members? What makes your products that enhance safety, maximize productivity and control costs. Snap-on's Quality proposed solutions unique in your Policy has been uploaded. industry as it applies to Sourcewell members? 42 Identify your ability and willingness No sales or service is offered under this proposal for Canadian Sourcewell members. to provide your products and services to Sourcewell member agencies in Canada. Bid Number: RotV199mcil Vendor Am(Rnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Table 9: Warranty A= : Im Describe in detail your manufacturer warranty program, including conditions and requirements to qualify, claims procedure, and overall structure. You may upload representative samples of your warranty materials (if applicable) in the document upload section of your response in addition to responding to the questions below. Line Item Question Response' 43 Do your warranties cover all products, parts, and Yes. See uploaded Snap -on warranty policy. labor? 44 Do your warranties impose usage restrictions or No. other limitations that adversely affect coverage? 45 Do your warranties cover the expense of Yes, technicians' travel time and mileage to perform warranty repairs? 46 Are there any geographic regions of the United No. States (and Canada, if applicable) for which you cannot provide a certified technician to perform warranty repairs? How will Sourcewell Members in these regions be provided service for warranty repair? 47 Will you cover warranty service for items made by Third party manufactured items are subject to the original equipment other manufacturers that are part of your proposal, manufacturer's warranty. or are these warranties issues typically passed on to the original equipment manufacturer? 48 What are your proposed exchange and return Product with current part numbers may be returned for credit if original programs and policies? packaging is unopened and undamaged. Customer is responsible for transportation costs unless the return is the result of an error on Snap-on's part. 49 Describe any service contract options for the items Many out of warranty Snap -on products can be repaired under a flat rate included in your proposal. program. See uploaded file for details. Other out of warranty repairs are quoted on an individual basis. Table 10: Payment Terms and Financing Options Line Item Question Response* 50 What are your payment terms (e.g., net 10, net 30)? Net 30, FOB Origin, Freight Prepaid. 51 Do you provide leasing or financing options, especially Leasing and financing options are available through Snap -on those options that schools and governmental entities may Financial Services and are quoted on a case by case basis. need to use in order to make certain acquisitions? 52 Briefly describe your proposed order process. Include All orders will be processed at Snap-on's National Industrial enough detail to support your ability to report quarterly Customer Service Center (ICSC). Customers can submit orders sales to Sourcewell as described in the Contract template. through their Snap -on Industrial Account Manager or directly to the For example, indicate whether your dealer network is ICSC by phone, mail, fax, email, online through the B2B website, included in your response and whether each dealer (or EDI, Ariba or through various other electronic platforms. Snap -on some other entity) will process the Sourcewell Members' Industrial anticipates no challenges in complying with the quarterly purchase orders. reporting requirements. 53 Do you accept the P-card procurement and payment Snap -on will accept P-cards with no additional charges to Sourcewell process? If so, is there any additional cost to Sourcewell members. Members for using this process? Bid Number: RotV199mcil Vendor AmeP%nap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Table 11: Pricing and Delivery WIMM : Im Provide detailed pricing information in the questions that follow below. Keep in mind that reasonable price and product adjustments can be made during the term of an awarded Contract as desribed in the RFP, the template Contract, and the Sourcewell Price and Product Change Request Form. Line Item Question Response* 54 Describe your pricing model (e.g., line -item discounts or Snap -on Product Managers assign each product to a price group product -category discounts). Provide detailed pricing data and each price group has a designated discount percentage. See (including standard or list pricing and the Sourcewell the uploaded Product Price Group (PPG) document for discount discounted price) on all of the items that you want details. The discount percentage will be applied to the IPLHF7 list Sourcewell to consider as part of your RFP response. If price. See the uploaded IPLHF7 price list for part number and applicable, provide a SKU for each item in your proposal. product group specifics. Pricing will be updated annually. From time Upload your pricing materials (if applicable) in the document to time a product's price group may be changed. The designated upload section of your response. price group discounts will remain unchanged throughout the term of the contract. Price group categories may be added or deleted at Product Management's discretion. 55 Quantify the pricing discount represented by the pricing Price Group discounts range from 0% to 68.34%. See uploaded proposal in this response. For example, if the pricing in PPG for details. your response represents a percentage discount from MSRP or list, state the percentage or percentage range. 56 Describe any quantity or volume discounts or rebate No quantity or volume discounts or rebate programs are offered programs that you offer. under this proposal. 57 Propose a method of facilitating "sourced" products or As described in number 54 above, all products are assigned to a related services, which may be referred to as "open market" price group. Any "sourced" product will be discounted according to items or "nonstandard options". For example, you may its assigned price group. supply such items "at cost" or "at cost plus a percentage," or you may supply a quote for each such request. 58 Identify any element of the total cost of acquisition that is The only element of total cost of acquisition not submitted is NOT included in the pricing submitted with your response. installation. This applies primarily, but not exclusively, to lifts. This includes all additional charges associated with a Installation charges will be quoted in advance. Any such charges will purchase that are not directly identified as freight or be imposed directly by Snap -on. No third parties will submit any shipping charges. For example, list costs for items like pre- charges under this proposal. delivery inspection, installation, set up, mandatory training, or initial inspection. Identify any parties that impose such costs and their relationship to the Proposer. 59 If freight, delivery, or shipping is an additional cost to the All prices quoted are delivered prices. Sourcewell Member, describe in detail the complete freight, shipping, and delivery program. 60 Specifically describe freight, shipping, and delivery terms or All prices quoted are delivered prices for the 50 US states. No programs available for Alaska, Hawaii, Canada, or any sales will be made under this agreement in Canada or any offshore offshore delivery. location. 61 Describe any unique distribution and/or delivery methods or Snap-on's standard delivery is UPS Ground up to the allowed weight options offered in your proposal. limits and LTL for larger shipments. The customer may request expedited shipping at their expense. Table 12: Pricing Offered Line Item The Pricing Offered in this Proposal is: * Comments 62 b. the same as the Proposer typically offers to GPOs, cooperative procurement organizations, or state purchasing See uploaded IPLHF7 price departments. list. Bid Number: RotV199MCH Vendor A rleRnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Table 13: Audit and Administrative Fee WIMM : Im Line Item Question Response* 63 Specifically describe any self -audit process or program that you Snap -on will employ a specific price matrix (IPLHF7) for this plan to employ to verify compliance with your proposed Contract contract. Sourcewell member accounts will be linked to this with Sourcewell. This process includes ensuring that Sourcewell price matrix. The matrix will not allow price deviation or Members obtain the proper pricing, that the Vendor reports all sales product substitution. Quarterly report information is generated under the Contract each quarter, and that the Vendor remits the by a query of all accounts linked to the matrix. This is the proper administrative fee to Sourcewell. same process Snap -on has used for many years in managing its contracts. 64 Identify a proposed administrative fee that you will pay to 0.5% of net sales excluding taxes. Sourcewell for facilitating, managing, and promoting the Sourcewell Contract in the event that you are awarded a Contract. This fee is typically calculated as a percentage of Vendor's sales under the Contract or as a per -unit fee; it is not a line -item addition to the Member's cost of goods. (See the RFP and template Contract for additional details.) Table 14: Industry Specific Questions Line Item Question Response* 65 If you are awarded a contract, provide a Overall sales and new accounts are the primary metrics to measure for contract few examples of internal metrics that will success. be tracked to measure whether you are having success with the contract. 66 Identify any certification(s) that your Snap -on Incorporated is ISO 14001 and ISO 9110 framework certified as well as business or the products included in your conforming to OHSAS 18001 safety standards. Documentation uploaded. proposal have attained or received. 67 Describe the ability to adapt your products Snap -on continually develops updates, upgrades and accessories for its products to through modification or replacement to extend their useful life and address changing technology. One example would be address obsolescence resulting from software upgrades for handheld diagnostic equipment, which when installed extends advances in technology. the equipment's useful life for many years. 68 For installation, repair, maintenance or All service personnel receive training appropriate to their requirements. warranty services included in your proposal, describe the training and/or certifications held or received by your service force. 69 Describe your capabilities as it relates to Parts are stocked in 4 distribution centers across the US. Service work is performed the serviceability of the products included at 3 service centers in the US and onsite by service personnel for certain products. in your proposal (parts availability, response times, technical support, etc.). Bid Number: RotV199MCH Vendor AmeP_�nap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Exceptions to Terms, Conditions, or Specifications Form A= : Im Only those Proposer Exceptions to Terms, Conditions, or Specifications that have been accepted by Sourcewell have been incorporated into the contract text. Documents Ensure your submission document(s) conforms to the following: 1. Documents in PDF format are preferred. Documents in Word, Excel, or compatible formats may also be provided 2. Documents should NOT have a security password, as Sourcewell may not be able to open the file. It is your sole responsibility to ensure that the uploaded document(s) are not either defective, corrupted or blank and that the documents can be opened and viewed by Sourcewell. 3. Sourcewell may reject any response where any document(s) cannot be opened and viewed by Sourcewell. 4. If you need to upload more than one (1) document for a single item, you should combine the documents into one zipped file. If the zipped file contains more than one (1) document, ensure each document is named, in relation to the submission format item responding to. For example, if responding to the Marketing Plan category save the document as "Marketing Plan." City Council 9 — 58 3/7/2023 Bid Number: RFP 013020 Vendor Name: Snap -on Industrial, A Division of IDSC Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D • Financial Strength and Stability - Question 10 Snap -on Incorporated 2018 Annual Report. pdf - Wednesday JEXHjabT2220 14:57:30 • Marketing Plan/Sam Imes - Snap -on Industrial Marketing Plan Samples.zip - Wednesday January 29, 2020 15:07:15 • WMBE/MBE/SBE or Related Certificates - Question 40 Snap -on Industrial Supplier Diversity Statement.pdf - Wednesday January 29, 2020 15:07:51 • Warranty Information - Question 40 Snap -on Industrial Warranty Policy.pdf - Wednesday January 29, 2020 15:08:02 • Pricing - Snap -on Industrial Pricing Documents.zip - Wednesday January 29, 2020 15:08:22 • Additional Document - Snap -on Industrial Additional Documents.zip - Wednesday January 29, 2020 15:08:38 Bid Number: RPAY199mcil Vendor AmeRnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: 067ADBD5-3886-42FC-A620-AA62556A2F6D Proposers Assurance of Comp 40M : M PROPOSER ASSURANCE OF COMPLIANCE PROPOSER'S AFFIDAVIT The undersigned, authorized representative of the entity submitting the foregoing proposal (the "Proposer"), swears that the following statements are true to the best of his or her knowledge. 1. The Proposer is submitting its proposal under its true and correct name, the Proposer has been properly originated and legally exists in good standing in its state of residence, the Proposer possesses, or will possess before delivering any products and related services, all applicable licenses necessary for such delivery to Sourcewell member agencies. The undersigned affirms that he or she is authorized to act on behalf of, and to legally bind the Proposer to the terms in this Contract. 2. The Proposer, or any person representing the Proposer, has not directly or indirectly entered into any agreement or arrangement with any other vendor or supplier, any official or employee of Sourcewell, or any person, firm, or corporation under contract with Sourcewell, in an effort to influence the pricing, terms, or conditions relating to this RFP in any way that adversely affects the free and open competition for a Contract award under this RFP. 3. The contents of the Proposer's proposal have not been communicated by the Proposer or its employees or agents to any person not an employee or agent of the Proposer and will not be communicated to any such persons prior to the official opening of the proposals. 4. The Proposer has examined and understands the terms, conditions, scope, contract opportunity, specifications request, and other documents in this solicitation and affirms that any and all exceptions have been noted and included with the Proposer's Proposal. 5. The Proposer will, if awarded a Contract, provide to Sourcewell Members the /products and services in accordance with the terms, conditions, and scope of this RFP, with the Proposer -offered specifications, and with the other documents in this solicitation. 6. The Proposer agrees to deliver products and services through valid contracts, purchase orders, or means that are acceptable to Sourcewell Members. Unless otherwise agreed to, the Proposer must provide only new and first -quality products and related services to Sourcewell Members under an awarded Contract. 7. The Proposer will comply with all applicable provisions of federal, state, and local laws, regulations, rules, and orders. 8. The Proposer understands that Sourcewell will reject RFP proposals that are marked "confidential" (or "nonpublic," etc.), either substantially or in their entirety. Under Minnesota Statute §13.591, Subd. 4, all proposals are considered nonpublic data until the evaluation is complete and a Contract is awarded. At that point, proposals generally become public data. Minnesota Statute §13.37 permits only certain narrowly defined data to be considered a "trade secret," and thus nonpublic data under Minnesota's Data Practices Act. The Proposer understands that it is the Proposer's duty to protect information that it considers nonpublic, and it agrees to defend and indemnify Sourcewell for reasonable measures that Sourcewell takes to uphold such a data designation. r By checking this box I acknowledge that I am bound by the terms of the Proposer's Affidavit, have the legal authority to submit this Proposal on behalf of the Proposer, and that this electronic acknowledgment has the same legal effect, validity, and enforceability as if I had hand signed the Proposal. This signature will not be denied such legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. - John Gowey, Vice President - Sales North America Critical Industries, Snap - on Industrial, A Division of IDSC Holdings LLC The Proposer declares that there is an actual or potential Conflict of Interest relating to the preparation of its submission, and/or the Proposer foresees an actual or potential Conflict of Interest in performing the contractual obligations contemplated in the bid. r Yes r No Bid Number: RotV199mCll Vendor AmcRnap-on Industrial, A DivisWa%' Holdings LLC DocuSign Envelope ID: B21 FFB24-C917-4FD3-8428-3636D86031 B7 E— X k-k 1IE-, l ri 3 region October 27, 2022 Mr. Lee Osterman lostermanAwesco.com VP — Commercial, Institutional & Gov't WESCO Distribution, Inc. 225 W. Station Square Dr. Pittsburgh, PA 15219 Re: Renewal Award of Contract #R192008 Dear Mr. Osterman: Per official action taken by the Board of Directors of Region 4 Education Service Center on October 25, 2022, Region 4 ESC is pleased to announce that WESCO Distribution, Inc. has been awarded an annual contract renewal for the following, based on the sealed proposal submitted to Region 4 on December 9, 2019, and subsequent performance thereafter: Contract Maintenance, Repair and Operations (MRO) Supplies & Related Services The contract will expire on March 31, 2024, completing the fourth year of a five-year term contract. The contract is available through OMNIA Partners, Public Sector. Your designated OMNIA Partners, Public Sector contact is Jessica Goforth, at (210) 729-0281 or iessica. ofg orth(a,omniapartners.com. The partnership between WESCO Distribution, Inc., Region 4 and OMNIA Partners, Public Sector can be of great help to participating agencies. Please provide copies of this letter to your sales representative(s) to assist in their daily course of business. Sincerely, �`DoeuSigned by: C�� ,b� 30EE150FEF1C4C8... Robert Zingelmann Chief Financial Officer, Finance and Operations Services Rcgion-iEducaiionS,:n-icc( cimA.•-IAS\\c,rl-idWI: ItR(md•Hc)u.Nun.I-rxaSH11 lilt. — - City Council PaniW7,:IIN, Fd.D.. F_ercu@.',-t) a1(W 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP Sourcewell rdd i Solicitation Number: RFP #091422 CONTRACT This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and White Cap, L.P., 6250 Brook Hollow Pkwy., Suite 100, Norcross, GA 30071 (Supplier). Sourcewell is a State of Minnesota local government unit and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to government entities. Participation is open to eligible federal, state/province, and municipal governmental entities, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada. Sourcewell issued a public solicitation for Facility MRO, Industrial, and Building -Related Supplies and Equipment from which Supplier was awarded a contract. Supplier desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and the entities that access Sourcewell's cooperative purchasing contracts (Participating Entities). 1. TERM OF CONTRACT A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below. B. EXPIRATION DATE AND EXTENSION. This Contract expires November 8, 2026, unless it is cancelled sooner pursuant to Article 22. This Contract may be extended up to two times, for one additional year per extension, upon the request of Sourcewell and written agreement by Supplier. C. SURVIVAL OF TERMS. Notwithstanding any expiration or termination of this Contract, all payment obligations incurred prior to expiration or termination will survive, as will the following: Articles 11 through 14 survive the expiration or cancellation of this Contract. All other rights will cease upon expiration or termination of this Contract. 2. EQUIPMENT, PRODUCTS, OR SERVICES A. EQUIPMENT, PRODUCTS, OR SERVICES. Supplier will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above. Rev. 3/2022 City Council 9 - 62 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP Supplier's Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract. All Equipment and Products provided under this Contract must be new and the current model. Supplier may offer close-out or refurbished Equipment or Products if they are clearly indicated in Supplier's product and pricing list. Unless agreed to by the Participating Entities in advance, Equipment or Products must be delivered as operational to the Participating Entity's site. This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed. B. WARRANTY. Supplier warrants that all Equipment, Products, and Services furnished are free from liens and encumbrances, and are free from defects in design, materials, and workmanship. In addition, Supplier warrants the Equipment, Products, and Services are suitable for and will perform in accordance with the ordinary use for which they are intended. Supplier's dealers and distributors must agree to assist the Participating Entity in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer's warranty that extends beyond the expiration of the Supplier's warranty will be passed on to the Participating Entity. C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution and throughout the Contract term, Supplier must provide to Sourcewell a current means to validate or authenticate Supplier's authorized dealers, distributors, or resellers relative to the Equipment, Products, and Services offered under this Contract, which will be incorporated into this Contract by reference. It is the Supplier's responsibility to ensure Sourcewell receives the most current information. 3. PRICING All Equipment, Products, or Services under this Contract will be priced at or below the price stated in Supplier's Proposal. When providing pricing quotes to Participating Entities, all pricing quoted must reflect a Participating Entity's total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Participating Entity's requested delivery location. Regardless of the payment method chosen by the Participating Entity, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Participating Entity at the time of purchase. A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Supplier must permit the Equipment and Products to be Rev. 3/2022 City Council 9 — 63 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP returned within a reasonable time at no cost to Sourcewell or its Participating Entities. Participating Entities reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery. In the event of the delivery of nonconforming Equipment and Products, the Participating Entity will notify the Supplier as soon as possible and the Supplier will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Participating Entity. Supplier must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition. Sourcewell may declare the Supplier in breach of this Contract if the Supplier intentionally delivers substandard or inferior Equipment or Products. B. SALES TAX. Each Participating Entity is responsible for supplying the Supplier with valid tax - exemption certification(s). When ordering, a Participating Entity must indicate if it is a tax- exempt entity. C. HOT LIST PRICING. At anytime during this Contract, Supplier may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract. When Supplier determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line -item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below. Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Participating Entities. 4. PRODUCT AND PRICING CHANGE REQUESTS Supplier may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Supplier Development Administrator. This approved form is available from the assigned Sourcewell Supplier Development Administrator. At a minimum, the request must: • Identify the applicable Sourcewell contract number; • Clearly specify the requested change; • Provide sufficient detail to justify the requested change; Rev. 3/2022 City Council 9 — 64 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP • Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change); and • Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged. A fully executed Sourcewell Price and Product Request Form will become an amendment to this Contract and will be incorporated by reference. 5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS A. PARTICIPATION. Sourcewell's cooperative contracts are available and open to public and nonprofit entities across the United States and Canada; such as federal, state/province, municipal, K-12 and higher education, tribal government, and other public entities. The benefits of this Contract should be available to all Participating Entities that can legally access the Equipment, Products, or Services under this Contract. A Participating Entity's authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Supplier understands that a Participating Entity's use of this Contract is at the Participating Entity's sole convenience and Participating Entities reserve the right to obtain like Equipment, Products, or Services from any other source. Supplier is responsible for familiarizing its sales and service forces with Sourcewell contract use eligibility requirements and documentation and will encourage potential participating entities to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its roster during the term of this Contract. B. PUBLIC FACILITIES. Supplier's employees maybe required to perform work at government - owned facilities, including schools. Supplier's employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Participating Entity policies and procedures, and all applicable laws. 6. PARTICIPATING ENTITY USE AND PURCHASING A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, a Participating Entity must clearly indicate to Supplier that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Supplier. Typically, a Participating Entity will issue an order directly to Supplier or its authorized subsidiary, distributor, dealer, or reseller. If a Participating Entity issues a purchase order, it may use its own forms, but the purchase order should clearly note the applicable Sourcewell Rev. 3/2022 4 City Council 9 — 65 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP contract number. All Participating Entity orders under this Contract must be issued prior to expiration or cancellation of this Contract; however, Supplier performance, Participating Entity payment obligations, and any applicable warranty periods or other Supplier or Participating Entity obligations may extend beyond the term of this Contract. Supplier's acceptable forms of payment are included in its attached Proposal. Participating Entities will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Participating Entity. B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and conditions to a purchase order, or other required transaction documentation, may be negotiated between a Participating Entity and Supplier, such as job or industry -specific requirements, legal requirements (e.g., affirmative action or immigration status requirements), or specific local policy requirements. Some Participating Entities may require the use of a Participating Addendum, the terms of which will be negotiated directly between the Participating Entity and the Supplier or its authorized dealers, distributors, or resellers, as applicable. Any negotiated additional terms and conditions must never be less favorable to the Participating Entity than what is contained in this Contract. C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires service or specialized performance requirements not addressed in this Contract (such as e- commerce specifications, specialized delivery requirements, or other specifications and requirements), the Participating Entity and the Supplier may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement. D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or in part, immediately upon notice to Supplier in the event of any of the following events: 1. The Participating Entity fails to receive funding or appropriation from its governing body at levels sufficient to pay for the equipment, products, or services to be purchased; or 2. Federal, state, or provincial laws or regulations prohibit the purchase or change the Participating Entity's requirements. E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Participating Entity's order will be determined by the Participating Entity making the purchase. 7. CUSTOMER SERVICE A. PRIMARY ACCOUNT REPRESENTATIVE. Supplier will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for: Rev. 3/2022 City Council 9 — 66 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP • Maintenance and management of this Contract; • Timely response to all Sourcewell and Participating Entity inquiries; and • Business reviews to Sourcewell and Participating Entities, if applicable. B. BUSINESS REVIEWS. Supplier must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to Participating Entities, pricing and contract terms, administrative fees, sales data reports, performance issues, supply issues, customer issues, and any other necessary information. S. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Supplier must provide a contract sales activity report (Report) to the Sourcewell Supplier Development Administrator assigned to this Contract. Reports are due no later than 45 days after the end of each calendar quarter. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Supplier must submit a report indicating no sales were made). The Report must contain the following fields: • Participating Entity Name (e.g., City of Staples Highway Department); • Participating Entity Physical Street Address; • Participating Entity City; • Participating Entity State/Province; • Participating Entity Zip/Postal Code; • Participating Entity Contact Name; • Participating Entity Contact Email Address; • Participating Entity Contact Telephone Number; • Sourcewell Assigned Entity/Participating Entity Number; • Item Purchased Description; • Item Purchased Price; • Sourcewell Administrative Fee Applied; and • Date Purchase was invoiced/sale was recognized as revenue by Supplier. B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Supplier will pay an administrative fee to Sourcewell on all Equipment, Products, and Services provided to Participating Entities. The Administrative Fee must be included in, and not added to, the pricing. Supplier may not charge Participating Entities more than the contracted price to offset the Administrative Fee. The Supplier will submit payment to Sourcewell for the percentage of administrative fee stated in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased Rev. 3/2022 City Council 9 — 67 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP by Participating Entities under this Contract during each calendar quarter. Payments should note the Supplier's name and Sourcewell-assigned contract number in the memo; and must be mailed to the address above "Attn: Accounts Receivable" or remitted electronically to Sourcewell's banking institution per Sourcewell's Finance department instructions. Payments must be received no later than 45 calendar days after the end of each calendar quarter. Supplier agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract. In the event the Supplier is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Supplier in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract's expiration date, the administrative fee payment will be due no more than 30 days from the cancellation date. 9. AUTHORIZED REPRESENTATIVE Sourcewell's Authorized Representative is its Chief Procurement Officer. Supplier's Authorized Representative is the person named in the Supplier's Proposal. If Supplier's Authorized Representative changes at any time during this Contract, Supplier must promptly notify Sourcewell in writing. 10. AUDIT, ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records, documents, and accounting procedures and practices relevant to this Contract are subject to examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the end of this Contract. This clause extends to Participating Entities as it relates to business conducted by that Participating Entity under this Contract. B. ASSIGNMENT. Neither party may assign or otherwise transfer its rights or obligations under this Contract without the prior written consent of the other party and a fully executed assignment agreement. Such consent will not be unreasonably withheld. Any prohibited assignment will be invalid. C. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been duly executed by the parties. D. WAIVER. Failure by either party to take action or assert any right under this Contract will not be deemed a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. Any such waiver must be in writing and signed by the parties. Rev. 3/2022 City Council 9 — 68 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP E. CONTRACT COMPLETE. This Contract represents the complete agreement between the parties. No other understanding regarding this Contract, whether written or oral, may be used to bind either party. For any conflict between the attached Proposal and the terms set out in Articles 1-22 of this Contract, the terms of Articles 1-22 will govern. F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, or any other relationship such as master -servant, or principal -agent. 11. INDEMNITY AND HOLD HARMLESS Supplier must indemnify, defend, save, and hold Sourcewell and its Participating Entities, including their agents and employees, harmless from any claims or causes of action, including attorneys' fees incurred by Sourcewell or its Participating Entities, arising out of any act or omission in the performance of this Contract by the Supplier or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications. Sourcewell's responsibility will be governed by the State of Minnesota's Tort Liability Act (Minnesota Statutes Chapter 466) and other applicable law. 12. GOVERNMENT DATA PRACTICES Supplier and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, maintained, or disseminated by the Supplier under this Contract. 13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING, AND ENDORSEMENT A. INTELLECTUAL PROPERTY 1. Grant of License. During the term of this Contract: a. Sourcewell grants to Supplier a royalty -free, worldwide, non-exclusive right and license to use the trademark(s) provided to Supplier by Sourcewell in advertising and promotional materials for the purpose of marketing Sourcewell's relationship with Supplier. b. Supplier grants to Sourcewell a royalty -free, worldwide, non-exclusive right and license to use Supplier's trademarks in advertising and promotional materials for the purpose of marketing Supplier's relationship with Sourcewell. 2. Limited Right of Sublicense. The right and license granted herein includes a limited right of each party to grant sublicenses to their respective subsidiaries, distributors, dealers, Rev. 3/2022 City Council 9 — 69 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP resellers, marketing representatives, and agents (collectively "Permitted Sublicensees") in advertising and promotional materials for the purpose of marketing the Parties' relationship to Participating Entities. Any sublicense granted will be subject to the terms and conditions of this Article. Each party will be responsible for any breach of this Article by any of their respective sublicensees. 3. Use; Quality Control. a. Neither party may alter the other party's trademarks from the form provided and must comply with removal requests as to specific uses of its trademarks or logos. b. Each party agrees to use, and to cause its Permitted Sublicensees to use, the other party's trademarks only in good faith and in a dignified manner consistent with such party's use of the trademarks. Upon written notice to the breaching party, the breaching party has 30 days of the date of the written notice to cure the breach or the license will be terminated. 4. Termination. Upon the termination of this Contract for any reason, each party, including Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites, and the like bearing the other party's name or logo (excepting Sourcewell's pre-printed catalog of suppliers which may be used until the next printing). Supplier must return all marketing and promotional materials, including signage, provided by Sourcewell, or dispose of it according to Sourcewell's written directions. B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Supplier individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract. C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be approved by Sourcewell. Send all approval requests to the Sourcewell Supplier Development Administrator assigned to this Contract. D. ENDORSEMENT. The Supplier must not claim that Sourcewell endorses its Equipment, Products, or Services. 14. GOVERNING LAW, JURISDICTION, AND VENUE The substantive and procedural laws of the State of Minnesota will govern this Contract. Venue for all legal proceedings arising out of this Contract, or its breach, must be in the appropriate state court in Todd County, Minnesota or federal court in Fergus Falls, Minnesota. Rev. 3/2022 City Council 9 — 70 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP 15. FORCE MAJEURE Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party's reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default. 16. SEVERABILITY If any provision of this Contract is found by a court of competent jurisdiction to be illegal, unenforceable, or void then both parties will be relieved from all obligations arising from that provision. If the remainder of this Contract is capable of being performed, it will not be affected by such determination or finding and must be fully performed. 17. PERFORMANCE, DEFAULT, AND REMEDIES A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows: 1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Supplier will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties. 2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Supplier may escalate the resolution of the issue to a higher level of management. The Supplier will have 30 calendar days to cure an outstanding issue. 3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Supplier must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Supplier fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, the Supplier will bear any additional costs incurred by Sourcewell and/or its Participating Entities as a result of such failure to proceed. B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Participating Entity order under this Contract, in default: 1. Nonperformance of contractual requirements, or 2. A material breach of any term or condition of this Contract. The party claiming default must provide written notice of the default, with 30 calendar days to cure the default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non -defaulting party may: Rev. 3/2022 10 City Council 9 — 71 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP • Exercise any remedy provided by law or equity, or • Terminate the Contract or any portion thereof, including any orders issued against the Contract. 18. INSURANCE A. REQUIREMENTS. At its own expense, Supplier must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an "AM BEST" rating of A- or better, with coverage and limits of insurance not less than the following: 1. Workers' Compensation and Employer's Liability. Workers' Compensation: As required by any applicable law or regulation. Employer's Liability Insurance: must be provided in amounts not less than listed below: Minimum limits: $500,000 each accident for bodily injury by accident $500,000 policy limit for bodily injury by disease $500,000 each employee for bodily injury by disease 2. Commercial General Liability Insurance. Supplier will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office ("ISO") Commercial General Liability Form CG0001 (2001 or newer edition), or equivalent. At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products -completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract. Minimum Limits: $1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury $2,000,000 aggregate for products liability -completed operations $2,000,000 general aggregate 3. Commercial Automobile Liability Insurance. During the term of this Contract, Supplier will maintain insurance covering all owned, hired, and non -owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer), or equivalent. Minimum Limits: $1,000,000 each accident, combined single limit Rev. 3/2022 11 City Council 9 — 72 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP 4. Umbrella Insurance. During the term of this Contract, Supplier will maintain umbrella coverage over Employer's Liability, Commercial General Liability, and Commercial Automobile. Minimum Limits: $2,000,000 5. Network Security and Privacy Liability Insurance. During the term of this Contract, Supplier will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Supplier's security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data — including but not limited to, confidential or private information, transmission of a computer virus, or denial of service. Minimum limits: $2,000,000 per occurrence $2,000,000 annual aggregate Failure of Supplier to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default. B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Supplier must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Supplier Development Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf. Failure to request certificates of insurance by Sourcewell, or failure of Supplier to provide certificates of insurance, in no way limits or relieves Supplier of its duties and responsibilities in this Contract. C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Supplier agrees to list Sourcewell and its Participating Entities, including their officers, agents, and employees, as an additional insured under the Supplier's commercial general liability insurance policy with respect to liability arising out of activities, "operations," or "work" performed by or on behalf of Supplier, and products and completed operations of Supplier. The policy provision(s) or endorsement(s) must further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds. D. WAIVER OF SUBROGATION. Supplier waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other Rev. 3/2022 12 City Council 9 — 73 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP insurance applicable to the Supplier or its subcontractors. The waiver must apply to all deductibles and/or self -insured retentions applicable to the required or any other insurance maintained by the Supplier or its subcontractors. Where permitted by law, Supplier must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors. E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies), or self -insured retention. 19. COMPLIANCE A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold. B. LICENSES. Supplier must maintain a valid and current status on all required federal, state/provincial, and local licenses, bonds, and permits required for the operation of the business that the Supplier conducts with Sourcewell and Participating Entities. 20. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION Supplier certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Supplier declares bankruptcy, Supplier must immediately notify Sourcewell in writing. Supplier certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota; the United States federal government or the Canadian government, as applicable; or any Participating Entity. Supplier certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Supplier further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time. 21. PROVISIONS FOR NON -UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER UNITED STATES FEDERAL AWARDS OR OTHER AWARDS Participating Entities that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may have additional requirements based on specific funding source terms or conditions. Within this Article, all Rev. 3/2022 13 City Council 9 — 74 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP references to "federal" should be interpreted to mean the United States federal government. The following list only applies when a Participating Entity accesses Supplier's Equipment, Products, or Services with United States federal funds. A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of "federally assisted construction contract" in 41 C.F.R. § 60- 1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 C.F.R. § 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." The equal opportunity clause is incorporated herein by reference. B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- federal entities must include a provision for compliance with the Davis -Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with the Copeland "Anti -Kickback" Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Supplier must be in compliance with all applicable Davis -Bacon Act provisions. C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5). Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of Rev. 3/2022 14 City Council 9 — 75 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above. D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACTOR AGREEMENT. If the federal award meets the definition of "funding agreement" under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that "funding agreement," the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above. E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). Supplier certifies that during the term of this Contract will comply with applicable requirements as referenced above. F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Supplier certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency. G. BYRD ANTI -LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Suppliers must file any required certifications. Suppliers must not have used federal appropriated funds to pay any Rev. 3/2022 15 City Council 9 — 76 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Suppliers must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Suppliers must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti -Lobbying Amendment (31 U.S.C. § 1352). H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Supplier must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Supplier further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed. I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Supplier must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Supplier must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition. K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Supplier agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and records of Supplier that are directly pertinent to Supplier's discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Supplier's personnel for the purpose of interview and discussion relating to such documents. L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. Rev. 3/2022 16 City Council 9 — 77 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP M. FEDERAL SEAL(S), LOGOS, AND FLAGS. The Supplier cannot use the seal(s), logos, crests, or reproductions of flags or likenesses of Federal agency officials without specific pre -approval. N. NO OBLIGATION BY FEDERAL GOVERNMENT. The U.S. federal government is not a party to this Contract or any purchase by a Participating Entity and is not subject to any obligations or liabilities to the Participating Entity, Supplier, or any other party pertaining to any matter resulting from the Contract or any purchase by an authorized user. 0. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS. The Contractor acknowledges that 31 U.S.C. 38 (Administrative Remedies for False Claims and Statements) applies to the Supplier's actions pertaining to this Contract or any purchase by a Participating Entity. P. FEDERAL DEBT. The Supplier certifies that it is non -delinquent in its repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowance, and benefit overpayments. Q. CONFLICTS OF INTEREST. The Supplier must notify the U.S. Office of General Services, Sourcewell, and Participating Entity as soon as possible if this Contract or any aspect related to the anticipated work under this Contract raises an actual or potential conflict of interest (as described in 2 C.F.R. Part 200). The Supplier must explain the actual or potential conflict in writing in sufficient detail so that the U.S. Office of General Services, Sourcewell, and Participating Entity are able to assess the actual or potential conflict; and provide any additional information as necessary or requested. R. U.S. EXECUTIVE ORDER 13224. The Supplier, and its subcontractors, must comply with U.S. Executive Order 13224 and U.S. Laws that prohibit transactions with and provision of resources and support to individuals and organizations associated with terrorism. S. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT. To the extent applicable, Supplier certifies that during the term of this Contract it will comply with applicable requirements of 2 C.F.R. § 200.216. T. DOMESTIC PREFERENCES FOR PROCUREMENTS. To the extent applicable, Supplier certifies that during the term of this Contract will comply with applicable requirements of 2 C.F.R. § 200.322. 22. CANCELLATION Sourcewell or Supplier may cancel this Contract at any time, with or without cause, upon 60 days' written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Supplier's Rev. 3/2022 17 City Council 9 — 78 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 EXHIBIT 4 091422-WCP Proposal. Cancellation of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to cancellation. Sourcewell DocuSigned by: By: C is9 S64Ayf'� Jeremy Schwartz Title: Chief Procurement Officer Date: 11/15/2022 1 6:28 PM CST Approved: �D,occuSS/igned by: Y• E vW 7E42BSF817A64CC... Chad Coauette Title: Executive Director/CEO 11/15/2022 1 8:38 PM CST Date: Rev. 3/2022 White Cap, L.P. KN', DocuSig�� �nee�dby: 10 i, �irvAvS� By: 3C9B159D542345C... Rye Dugosh Title: National Sales Manager -Government Date: 11/15/2022 1 10:22 AM CST 18 City Council S! • 3/7/2023 DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 MIMM : NM' RFP 091422 - Facility MRO, Industrial, and Building -Related Supplies and Equipment Vendor Details Company Name: White Cap, LP Does your company conduct business under any other name? If White Cap, LP yes, please state: 6250 Brook Hollow Pkwy Address: Norcross, Georgia 30071 Contact: Rye Dugosh Email: rye.dugosh@whitecap.com Phone: 210-322-0525 Fax: 833-857-5759 HST#: 26-0100647 Submission Details Created On: Wednesday August 03, 2022 08:34:29 Submitted On: Friday September 09, 2022 09:06:34 Submitted By: Rye Dugosh Email: rye.dugosh@whitecap.com Transaction #: a27abfcd-4a6a-4c6f-843d-1 d041 fb1 afc2 Submitter's IP Address: 208.127.244.25 Bid Number: RpitygP ilCll 9 - 80 VenG7QQW0 White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 A= : NM' Specifications Table 1: Proposer Identity & Authorized Representatives General Instructions (applies to all Tables) Sourcewell prefers a brief but thorough response to each question. Do not merely attach additional documents to your response without also providing a substantive response. Do not leave answers blank; respond "N/A" if the question does not apply to you (preferably with an explanation). Line Item Question Response 1 Proposer Legal Name (one legal entity only): White Cap, L.P. (In the event of award, will execute the resulting contract as "Supplier") 2 Identify all subsidiary entities of the Proposer N/A whose equipment, products, or services are included in the Proposal. 3 Identify all applicable assumed names or DBA N/A names of the Proposer or Proposer's subsidiaries in Line 1 or Line 2 above. 4 Provide your CAGE code or Unique Entity UEI: CV3GKH32FM63 Identifier (SAM): 5 Proposer Physical Address: 6250 Brook Hollow Pkwy, Ste 100, Norcross, GA 30071 6 Proposer website address (or addresses): www.whitecap.com www.whitecap.com/government-resources/sourcewell 7 Proposer's Authorized Representative (name, Rye Dugosh title, address, email address & phone) (The National Sales Manager -Government representative must have authority to sign 6250 Brook Hollow Pkwy, Ste 100, Norcross, GA 30071 the "Proposer's Assurance of Compliance" on rye.dugosh@whitecap.com behalf of the Proposer and, in the event of 210-322-0525 award, will be expected to execute the resulting contract): 8 Proposer's primary contact for this proposal Rye Dugosh (name, title, address, email address & phone): National Sales Manager -Government 6250 Brook Hollow Pkwy, Ste 100, Norcross, GA 30071 rye.dugosh@whitecap.com 210-322-0525 9 Proposer's other contacts for this proposal, if White Cap Government Sales Team any (name, title, address, email address & Sourcewell Government Sales phone): 6250 Brook Hollow Pkwy, Ste 100, Norcross, GA 30071 whitecap.gov@whitecap.com 866-216-3050 Table 2: Company Information and Financial Strength Line Question Item IIER Provide a brief history of your company, including your company's core values, business philosophy, and industry longevity related to the requested equipment, products or services. Response* Our company, White Cap, has been in business since 1976 and has grown into the nation's leading distributor of specialty hardware, tools and materials for large and medium-sized contractors and government end users. The White Cap family relies on our values to guide our decisions and behaviors. Service, Performance, Integrity, Respect, Innovation and Teamwork are the foundation of our success as individuals, as a team and as a family. By living our "SPIRIT" values every day, we create exceptional experiences for our customers and our associates, making White Cap a showplace that we want our friends and family to see. You'll find that the cornerstone of our operations is our people. Work with us and get the expertise and hands-on problem -solving of the most knowledgeable pros in facility MRO and construction supplies. We make it easy for Sourcewell members to do business with us while adding value that they can appreciate! https://about.whitecap.com/about-us Bid Number: RP VCP42 1C11 9 - 81 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 11 What are your company's expectations in the White Cap has devoted numerous resources to help develop the IgANUATi event of an award? program within our company since our initial award in 2019. We are very proud to partner with Sourcewell especially since they are a true government agency (.gov) and we wish to continue our business relationship for many years to come. Sourcewell is the solution for our field associates looking to increase sales along with local and state government agencies searching for a way to help simplify the overall buying process in this arena. With White Cap having such a program, this adds tremendous value to Sourcewell members while satisfying the bid process allowing these customers to buy more from us while staying in compliance on their end. We wish to continue our great relationship with Sourcewell as the contract has allowed us to create new business and to increase existing business by making it easy for these customers to buy directly from us and satisfy their required bid procedures. Our sales have more than doubled every year since 2019 to the SLED market and we expect even greater growth over the next contract term and beyond. White Cap hopes to one day even be a recipient of the Sourcewell Legacy award and we will strive to be recognized in that category of other Sourcewell world class suppliers. 12 Demonstrate your financial strength and Annual Receipts (in accordance with 13 CFR 121) stability with meaningful data. This could $4,757,100,000.00 include such items as financial statements, Number of Employees (in accordance with 13 CFR 121) SEC filings, credit and bond ratings, letters 9,300 of credit, and detailed reference letters. Upload supporting documents (as applicable) https://about.whitecap.com/about-us in the document upload section of your response. 13 What is your US market share for the Our US market share for the solutions that we are proposing is —10%. solutions that you are proposing? 14 What is your Canadian market share for the Our Canadian market share for the solutions that we are proposing is < 5%. solutions that you are proposing? 15 Has your business ever petitioned for NO, N/A bankruptcy protection? If so, explain in detail. 16 How is your organization best described: is White Cap is the nation's leading wholesale distributor of specialty hardware, tools it a manufacturer, a distributor/dealer/reseller, and materials for large and medium-sized contractors and government end users. or a service provider? Answer whichever Our company has no dealer network. We are an authorized distributor for all brands question (either a) or b) just below) best that we stock throughout our branches and distribution centers. applies to your organization. Note: Please see attached line card for our core brands we distribute under a) If your company is best described as marketing resources. a distributor/dealer/reseller (or similar entity), provide your written authorization to act as a distributor/dealer/reseller for the manufacturer of the products proposed in this RFP. If applicable, is your dealer network independent or company owned? b) If your company is best described as a manufacturer or service provider, describe your relationship with your sales and service force and with your dealer network in delivering the products and services proposed in this RFP. Are these individuals your employees, or the employees of a third party? 17 If applicable, provide a detailed explanation N/A — Our company would service Sourcewell members through our own resources outlining the licenses and certifications that internally and we meet and exceed all requirements. are both required to be held, and actually held, by your organization (including third parties and subcontractors that you use) in pursuit of the business contemplated by this RFP. 18 Provide all "Suspension or Debarment" N/A — White Cap has no "Suspensions or Disbarments" information that has applied to your organization during the past ten years. Table 3: Industry Recognition & Marketplace Success Line Question Response Item Bid Number: RpitycP42VCH 9 — 82 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 19 Describe any relevant industry awards or recognition that your company has received in the past five years • 2016, 2017, 2018 Partner & Support Recognition for Gary "MM t +vbn% Manager and HD Supply Construction & Industrial — White Cap from Tilt -Up Contractor's Association • 2018 Partner of the Year for Oscar Guardado, Account Manager and HD Supply from Georgia Hispanic Contractor's Association • Tencate Mirafi — Mirasquare Achievement Award — Platinum 2011, 2012, 2013, 2014, 2015, 2016 • Husgvarna Moving Forward National Distributor the Year 2012 • Husgvarna — National Distributor of the Year 2013 • Husgvarna — National Distributor of the Year 2014 • Husgvarna — National Distributor of the Year 2015 • Husgvarna — National Distributor of the Year 2017 • Allen Engineering High Performance Allen Engineering Dealer 2012 • Allen Engineering High Performance Allen Engineering Dealer 2016 Allen Engineering High Performance Allen Engineering Dealer 2017 • Allen Engineering — Worldwide Number One Dealer 2012 • Allen Engineering — Worldwide Number One Dealer 2016 • Presco — Thanks For The Outstanding Partnership (no year listed on plaque) • Moldex Million Dollar Club 2014 — Outstanding Sales Volume • Honda — In Recognition of 21% Growth over 2014 • Honda — In Recognition of 30% Growth over 2013 • Dow Top 25 Inner Circle Partner — 2015 and 2017 • DeWALT — 2012 Sales Excellence Award • DeWALT — 2013 Sales Excellence Award • DeWALT — 2015 Sales Excellence Award • One Team — National Distributor of the Year 2016 • Nomaco — In Grateful Appreciation For Years of Outstanding Market Leadership and Representation — 2014 • White Cap is a leading national sponsor and active supporter of Shepherd's Men. Shepherd's Men is an organization comprised of dedicated patriots committed to creating advocacy and opportunity for our nation's veteran heroes who have been affected by the hidden injuries of war. The organization serves our noble warriors by means of outreach, empowerment and funding for treatment. It is Shepherd's Men's belief that victory in combat is achieved on two fronts; on the field and in the mind. Shepard's Men will share the burden and lift up our warfighters in need. Shepherd's Men is proudly dedicated to raising funds and awareness for SHARE Military Initiative at Shepherd Center in Atlanta. This comprehensive rehabilitation program focuses on assessment and treatment for military veterans who have sustained a mild to moderate Traumatic Brain Injury (TBI) and Post -Traumatic Stress Disorder (PTSD) from service in the post-9/11 wars. hftp://www.shepherdsmen.com/partners/ • White Cap is a leading national sponsor and active supporter of St. Jude Children's Research Hospital. The mission of St. Jude Children's Research Hospital is to advance cures, and means of prevention, for pediatric catastrophic diseases through research and treatment. Consistent with the vision of founder Danny Thomas, no child is denied treatment based on race, religion or a family's ability to pay. https://www.stjude.org/ Bid Number: RP yCP42 1C11 9 - 83 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 20 What percentage of your sales are to the 2019 - < 1 governmental sector in the past three years 2020 - < 1 % 2021 - < 1 % 21 What percentage of your sales are to the 2019 - < 1 % education sector in the past three years 2020 - < 1 % 2021 - < 1 % 22 List any state, provincial, or cooperative White Cap only holds our Sourcewell national cooperative contract # 121218-HDS. purchasing contracts that you hold. What is We are not interested in pursuing any other cooperative contracts as long as we the annual sales volume for each of these hold the Sourcewell contract. We strongly believe that Sourcewell is the best contracts over the past three years? contract to have and satisifies all of our customer's requirements. Annual Sales Volume - White Cap Sourcewell Contract # 121218-HDS 2019 - $882,675.41 2020 - $3,957,721.26 2021 - $5,957,836.84 2022 YTD - $6,100,298.12 ----- Projected $15MM 23 List any GSA contracts or Standing Offers White Cap holds a Federal GSA schedule under contract # GS-06F-0001T. and Supply Arrangements (SOSA) that you Our company focus is towards the SLED market though with our Sourcewell hold. What is the annual sales volume for contract. Our Federal GSA sales, primarily from GSA advantage online are listed each of these contracts over the past three below: years? 2021 - $1.5MM 2020 - $1.0MM 2019 - $1.3MM Table 4: References/Testimonials Line Item 24. Supply reference information from three customers who are eligible to be Sourcewell participating entities. Entity Name Contact Name Phone Number" City of San Diego Thomas Sawade 619.247.0102 Port Authority of NY and NJ Margaret D'Emic 212.435.4609 City of Newport News, VA Shawneequa D. Tyler 757.926.8043 Table 5: Top Five Government or Education Customers Line Item 25. Provide a list of your top five government, education, or non-profit customers (entity name is optional), including entity type, the state or province the entity is located in, scope of the project(s), size of transaction(s), and dollar volumes from the past three years. Entity Name Entity Type State / Scope of Work Size of Transactions Dollar Volume Past Three Province ' Years City of San Government California - CA 4 year BPA worth up to $8.5MM Normal order is —$10K 2022 YTD - $1.4MM Diego for safety and construction type 2021 - $ 96K supplies tied to our Sourcewell 2020 - $ 50K contract. 2019 - $ 50K Port Authority Government New York- NY Annual contracts tied to our Normal order is —$2K 2021 - $ 500K of New York Sourcewell contract. 2020 - $ 200K and New 2019 - $50K Jersey. Belmont Education Tennessee - TN Sourcewell member with many Normal order is >$20K 2022 YTD - $1.9MM University projects and MRO needs for the 2021 - $0 university. 2020 - $0 2019 - $0 Texas Dept. of Government Texas -TX Annual contracts and emergency Normal order is >$10K 2021 - $350K Transportation spend. 2020 - $200K 2019 - $200K Omaha Public Education Nebraska - NE Regular spend utilizing our Normal order is —$2K 2021 - $1.2MM Schools Sourcewell contract. Special 2020 - $10K orders for PPE products during 2019 - $5K the pandemic. Table 6: Ability to Sell and Deliver Service Describe your company's capability to meet the needs of Sourcewell participating entities across the US and Canada, as applicable. Your response should address in detail at least the following areas: locations of your network of sales and service providers, the number Bid Number: RP yCP42 1C11 9 — 84 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 of workers (full-time equivalents) involved in each sector, whether these workers are your direct employees (or eENb�&hlc* third party), and any overlap between the sales and service functions. Line Item Question Response" 26 Sales force. White Cap has a sales force over 2000 outside and inside sales associates with additional associates in Canada (under the Brafasco brand). Our sales force is trained and expected to call on and service any Sourcewell members within their assigned territories across the nation. Robust sales reporting exactly in line with Sourcewell requirements has been and will continue to be submitted before the quarterly deadlines. 27 Dealer network or other distribution White Cap has no dealer network. Our company has more than 450 locations in methods. U.S. and Canada (under the Brafasco brand) along with a vast fleet of delivery trucks to provide next day delivery. We are able to support Sourcewell members with what they need, where they need it and when they need it, utilizing our own company owned resources. This gives us much better control of the overall distribution process from start to finish. 28 Service force. White Cap has a team of more than 9000 direct employees that you can rely on for professional service and solutions. We bring comprehensive knowledge of facility MRO, Federal, State and Local government, concrete, tilt -up, bridge, highway, grading, waterproofing, residential and commercial construction practices to provide the expertise you expect. All associates are trained on sales even though their primary function may be servicing customers in an operational role. 29 Describe the ordering process. If orders From hard -to -find products to technical expertise to jobsite training, White Cap will be handled by distributors, dealers or supports professional government customers and contractors in non-residential, others, explain the respective roles of the residential and infrastructure end markets with everything they need to keep their Proposer and others. projects moving on time, on budget, and as safely as possible. As the leading North American distributor for professional contractors, the White Cap family consists of multiple brands in the U.S. and Canada. White Cap operates more than 450 branches across North America with more than 9,000 employees supporting approximately 200,000 customers across 15 construction trades. Our ordering process is dictated by how the customer prefers to buys from us. We offer counter and will call service through our branches. We offer online ordering through www.whitecap.com. We also offer traditional phone, fax and/or email service for facilitating orders. As a plus, we have a dedicated government sales team for our Sourcewell customers to provide them with extra special service. This team will also handle the orders that come in through the BUY SOURCEWELL ecommerce platform that will soon be launching. White Cap is already set up with EqualLevel with a top tier profile having a Punchout (GO) store. We are ready and eager to support this program. 30 Describe in detail the process and For shipping orders, our delivery commitment for standard stock products shipped to procedure of your customer service our customers is typically next day delivery for customers located within 35 miles of program, if applicable. Include your one of our 271 branches nationwide. In this scenario, we will use our fleet of response -time capabilities and company -owned delivery trucks. Normal, standard transit times will apply should we commitments, as well as any incentives have to send via an alternate carrier (UPS, Fed Ex, etc.) or freight line. We also that help your providers meet your stated have a centralized logistics team that handles any special requests and negotiates service goals or promises. freight rates so we can pass these savings onto our customers and further differentiate White Cap from the competition. For will call orders called into one of our branches, the expectation is that the order will be ready for pick up within 2 hours from the time of placing the order. 31 Describe your ability and willingness to White Cap is in a class of its own as the only national construction supplier on the provide your products and services to market today offering professional type products and services. This is very important Sourcewell participating entities in the as we can attest that many existing Sourcewell members are signing up with our United States. company for our strong product offerings under the program. Our large national footprint, dedicated and owned fleet of trucks, extensive inventory, no charge training and expertise and many other offerings, set us apart from our competition and any others vendors on any of the national cooperative purchasing programs today. We eagerly desire to continue to partner with Sourcewell as our first choice and only contract vehicle into the state and local (SLED) government market. 32 Describe your ability and willingness to White Cap has a separate Canadian entity called Brafasco which proudly operates provide your products and services to across Canada with 42 Branches, over 200 Associates, over 15,000 SKUs, superior Sourcewell participating entities in Canada. delivery and services. Brafaso operates under White Cap Supply Canada Inc. along with National Concrete Accessories and Brock White Canada. We are very willing to provide our products and services to Sourcewell (Canoe) member agencies in Canada utilizing the Canoe program. Brafasco will dictate its own pricing and delivery terms. Following is a link to Brafasco's website: https:Hbrafasco.com/ 33 Identify any geographic areas of the United We have a national presence and all geographic areas of the United States and States or Canada that you will NOT be Canada can be fully serviced. fully serving through the proposed contract. Bid Number: RP VCP42 1C11 9 — 85 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 34 Identify any Sourcewell participating entity All Sourcewell Member sectors can be fully serviced as well throu4PM IMPTOA sectors (i.e., government, education, not -for- contract. profit) that you will NOT be fully serving White Cap does not have any other national coop contracts, and Sourcewell will be through the proposed contract. Explain in the only one we will pursue if successful in a new award. detail. For example, does your company have only a regional presence, or do other cooperative purchasing contracts limit your ability to promote another contract? 35 Define any specific contract requirements White Cap has 4 branches throughout Hawaii in Honolulu, Kahului, Hilo and Kailua- or restrictions that would apply to our Kona. Hawaii dictates its own pricing due to freight concerns. Our company does not participating entities in Hawaii and Alaska have any physical branches in Alaska but we service the state on a regular basis and in US Territories. from our State of Washington branches. Additional freight charges may apply when shipping to Alaska or other US Territories`. `Other freight charges will be incurred for services such as expedited delivery, air freight, freight collect, sourced orders, export orders, hazardous materials, buyer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. Bid Number: RP YCP42VCH 9 — 86 VenGi70 White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 Table 7: Marketing Plan A= : NM' Item Question Response* 36 Describe your marketing strategy for White Cap delivers robust in-house direct marketing capabilities. We reach customers promoting this contract opportunity. through various channels such as print, email, social media, content development, video Upload representative samples of your production, and extensive SEO efforts. In addition, our Events Team brings together marketing materials (if applicable) in suppliers and customers, along with our own product experts to deliver on -site training the document upload section of your customized to our customers' needs. In partnership with Sourcewell, we will execute response. regular omnichannel campaigns segmented to specific customer groups or project phase opportunities such as: municipalities, project start-up/cleanup, storm water solutions, seasonal & adverse conditions periods, large structure/campus resources, road & bridge work, and more. Our objective is to inform customers of our partnership with Sourcewell and provide valuable resources for product assortment, application, regulatory solutions, introductions to The Most Knowledgeable Pros in Construction SuppliesTm and more. We enable our sales team with many forms of collateral resources to engage end users with relevant information about our products and services. White Cap is also in attendance, and always in the Sourcewell section, of major events such as NIGP's annual conference. Note: Please see attached various marketing representative samples in .pdf format included under marketing docs. Many of these documents go out to all Sourcewell members on a monthly basis. Also, please visit our dedicated Sourcewell page on our website at: https://www.whitecap.com/government-resources/sourcewell 37 Describe your use of technology and As we alluded to above, White Cap has made extensive investments in marketing digital data (e.g., social media, technology to extend our reach and ensure flawless execution. We are viewed as a metadata usage) to enhance marketing leader in construction supplies. We use extensive customer and product data marketing effectiveness. resources to segment and target marketing messages through various channels. Tools such as Salesforce Marketing Cloud, Episerver, Agility, Brightedge, Workfront, MOZ Local, and others enable our team to deliver relevant content to a targeted audience. Our social media channels focus on Facebook, Linkedln, Instagram, and YouTube and we are everywhere in web search. We deliver curated content across multiple advertising types such as dynamic ads, mobile -friendly canvas ads, personalized email, trigger campaigns, and such. Sourcewell members can expect appropriate messaging that makes sense for their business needs and clear explanation of our capabilities within the Sourcewell program. 38 In your view, what is Sourcewell's role We envision Sourcewell to continue providing training to our sales associates in the art of in promoting contracts arising out of selling to public institutions, utilizing its program managers and other staff. Sourcewell this RFP? How will you integrate a also provides a supplier manager who acts as a liaison between supplier and Sourcewell-awarded contract into your participating public agencies. The supplier manager is available as well for senior sales process? leadership meetings, monthly calls and quarterly reviews. Ad hoc online/webinar training from Sourcewell will always be available as well. Also, White Cap fully takes advantage of the awesome training provided throughout the nation by Sourcewell in the Sourcewell Universities and Sales Accelerators. Last but not least, Sourcewell H2O is another great event that helps me as a leader to promote our Sourcewell contract to our company nationally. I am a regular attendee of this event and plan to be every year going forward. For our part, from the top down, White Cap is committed to the relationship and "leads" with our Sourcewell contract to drive sales business through all eligible agencies. Our entire salesforce is trained on the program and has the proper marketing and sales tools to promote the Sourcewell program in a professional and effective manner. Marketing is most effective when we combine robust customer and product data and the opportunity to align with Sourcewell to reach the targeted audience will streamline efforts and result in a positive response from members. 39 Are your products or services Yes, White Cap (www.whitecap.com) has a very robust online site. Customers can available through an e-procurement leverage a logged -in account experience to order directly off of the website and receive ordering process? If so, describe your their account specific pricing, estimated delivery dates, see their invoices and statements, e-procurement system and how as well as pay on their account online. governmental and educational As a plus, we have a dedicated government sales team for our Sourcewell customers to customers have used it. provide them with extra special service. This team will also handle the orders that come in through the BUY SOURCEWELL ecommerce platform that will soon be launching. White Cap is already set up with EqualLevel with a top tier profile having a Punchout (GO) store. We are ready and eager to support this program. Table 8: Value -Added Attributes Bid Number: RP yCP42 1C11 9 - 87 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 Line Item Question Response EXHIBIT 4 40 Describe any product, equipment, White Cap offers online and in person training on or off site for the majority of the products maintenance, or operator training that we distribute. We specialize in training for equipment purchased from us and have programs that you offer to several product training specialists throughout the country. We also specialize in safety Sourcewell participating entities. related training with our certified safety specialists in every region. Include details, such as whether All training is performed by White Cap and/or our manufacturer representatives and is training is standard or optional, optional with no cost to our customers. A true value add. who provides training, and any costs that apply. 41 Describe any technological White Cap is usually first to the market with new and innovative technical advances related advances that your proposed to the products that we stock. Our manufacturers typically give us the first opportunity since products or services offer. we are such a large distributor and have the national presence to market their products. In the construction and industrial world, there are always new advances that we introduce to save our customers time and money and overall improve their efficiencies. 42 Describe any "green" initiatives that relate to your company or to your products or services, and include a list of the certifying agency for each. White Cap has several "green" initiatives relating to the company and products. We strictly self -certify and/or partner with local certification agencies on the below programs: ideallygreen® Launched in 2007, our ideallygreen® initiative was designed to help customers easily access environmentally preferable product offerings. We offer a wide selection of products in five conservation categories: energy efficiency, water conservation, indoor environmental quality, waste reduction, and hazardous material disposal. LEED Certification White Cap has obtained a LEED (Leadership in Energy and Environmental Design) Silver Certification from the U.S. Green Building Council (USGBC) for our new headquarters office in Georgia. We have pursued the Building Design and Construction: Core and Shell rating, which is designed for projects where the developer controls the site selection as well as design and construction of the entire mechanical, electrical, plumbing and fire protection systemcalled the core and shell —but not the design and construction of the tenant fit -out. Completed in the spring of 2018, our new headquarters has a building energy management system to monitor and control the building's energy needs, thus increasing efficiency and reducing energy waste. The building finishes such as millwork, carpeting, and paints were sourced from recycled materials that contain low levels of volatile organic compounds. We also installed six electric charging stations in the building's parking deck to encourage associates to use electric cars. Additionally, the new headquarters office is being designed to emphasize employee health and wellness. We are in the process of pursuing Fitwel Certification, which focuses on promoting facility innovations for wellness. For example, the building features a fitness center and a restaurant with healthy meal options. For additional information on protecting the health and safety of our associates, we have developed a Workplace Health and Safety page. Recycling and Waste Management White Cap works to reduce waste by reusing and recycling a variety of materials, including batteries, cardboard, paper, scrap metal, and beverage containers. In addition to recycling programs, we have a comprehensive waste program at our operating facilities to manage both hazardous and non -hazardous chemical waste, which typically stems from damaged containers and expired products. As part of our commitment to being responsible stewards of the environment, we continuously work to improve the waste diversion rate of our distribution centers. We strive toward a zero -waste to landfill policy to manage regulated waste and product -related waste that we dispose of through our hazardous waste program. We take a conservative, risk - based approach to waste disposal through our hazardous waste program and associated vendors, even in situations and jurisdictions where it is not required by regulation. We manage our program through a variety of processes including incineration, fuel blending, energy recovery, recycling, and neutralization. In 2017, we managed under 600,000 pounds of waste. That is an improvement of over 8% from 2015. Water Conservation Since White Cap does not manufacture products, our water consumption is relatively small. However, we do look for opportunities to reduce our water usage where we can. For example, we have installed low -flow fixtures at facilities in California. We are also looking into the possibility of making low -flow water fixtures for sinks and water fountains standard in our facilities. Energy Reduction We are working to effectively manage energy use at several of our locations by retrofitting our distribution centers with more efficient systems. For example, our heating, ventilation, and air conditioning (HVAC) systems are tied into a digitally -controlled building management system to help maximize efficiency through scheduling and optimal temperature sensing via digital thermostats. Additionally, all of our corporate office sites, including call centers, have a mix of fluorescent and light -emitting diode (LED) lighting, as well as programmable Bid Number: RP YCP42 1CiI 9 — 88 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 lighting controls tied into an energy management system. Moving forward, EiXHHrBtbTh*e all lighting projects follow a standard upgrade to LED and photo and motion control technology. In addition to lighting initiatives, many of our distribution centers built within the last decade have white thermoplastic polyolefin roofing, which reduces heat transfer into the building and air conditioning consumption. Transportation Efficiency White Cap manages an internal fleet of motor vehicles to meet most of our transportation needs, including inbound and customer deliveries. To that end, we are making efforts to mitigate the greenhouse gas emissions and reduce energy consumption associated with our transportation activities. For example, White Cap is currently rolling out telematics across its commercial motor vehicle fleet. Over time, these devices will provide valuable insight into truck utilization, which will potentially provide opportunities to increase efficiency and reduce emissions. Within the White Cap business, routing technology lowers the amount of time delivery vehicles are on the road and limits the number of vehicles required to deliver product each day. This, in turn, lowers emissions. That same technology, coupled with continued investment in new vehicles and a robust preventive maintenance plan, assures all vehicles are as fuel efficient as possible. Product Offerings We offer customers cost-effective ways to incorporate environmentally sustainable products into their building plans. Providing customers with environmentally friendly product options helps them decrease environmental impacts, save money, stay compliant with environmental regulations, and attract new business. We offer a handful of resources, including our ideallygreen® initiative and energy savings calculators to help customers be environmentally sustainable. As much as possible, we encourage our contractors and suppliers to incorporate environmental stewardship into their practices. 43 Identify any third -party issued eco- White Cap's ESG (Environmental, Social, and Governance) is used by our company to labels, ratings or certifications that understand how we are managing risks and opportunities related to environmental, social, your company has received for and governance standards. ESG measures how sustainable our company's operations are. the equipment or products Why ESG is important to White Cap: included in your Proposal related to energy efficiency or The White Cap ESG Program is a unified approach to being a good corporate citizen as conservation, life -cycle design we reduce environmental risks throughout our entire supply chain by creating a more socially (cradle -to -cradle), or other conscious workplace that emphasizes our associates, suppliers, customers and community. green/sustainability factors. As an ESG company, our goal is to operate with integrity, transparency, equality and respect. White Cap's Key Efforts in ESG: Environmental: Climate Resilience Energy Efficiency Waste Management Water Social: Diversity, Equity, and Inclusion Associate Engagement and Development Community Engagement Associate Health and Safety Governance: 44 Describe any Women or Minority Business Entity (WMBE), Small Business Entity (SBE), or veteran owned business certifications that your company or hub partners have obtained. Upload documentation of certification (as applicable) in the document upload section of your response. Anti -Corruption and Business Ethics Data Security and Cybersecurity Board Development and Diversity Enterprise Risk Management Our company is a large business, so we do not have any WMBE, SBE or related certifications. We do have a very strong supplier diversity program though. White Cap understands that teaming with diverse businesses can bring value through quality products, services and innovation. Our Supplier Diversity Program is designed to build strong relationships with certified minority -owned, women -owned, and other historically disadvantaged and small businesses. As part of the program, we work to identify and classify existing suppliers with a diverse business certification or small business classification from a recognized certifying agency. For suppliers working to develop a relationship with White Cap, we offer an online Supplier Center that enables diverse suppliers to enter relevant business, contact, and diversity information. (Note: Please see attached Supplier Diversity flyer Bid Number: RpitycP42VCH 9 — 89 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 45 What unique attributes does your White Cap is in a class of its own as the only national construction suppFer"(MIPJ 4nafket company, your products, or your today offering professional type products and services. This is very important as we can services offer to Sourcewell attest that numerous existing Sourcewell members are using our company due to our unique participating entities? What makes products and offerings under the Sourcewell contract program. your proposed solutions unique in Our large national footprint, dedicated and owned fleet of trucks, extensive inventory, no your industry as it applies to charge training and expertise and many other offerings, set us apart from our competition Sourcewell participating entities? and any others vendors on any of the national cooperative purchasing programs today. We eagerly desire to continue to partner with Sourcewell as our first choice and only contract vehicle into the state and local government market. Since our initial Sourcewell award 4 years ago, White Cap has become it's own stand- alone company and has doubled in size through acquisitions of other world class companies of CSG and Ram Tool. We were always one of a kind before but now even Bid Number: RP YCP42VCll 9 - 90 VenGi70 White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 Table 9: Warranty A= : NM' Describe in detail your manufacturer warranty program, including conditions and requirements to qualify, claims procedure, and overall structure. You may upload representative samples of your warranty materials (if applicable) in the document upload section of your response in addition to responding to the questions below. Line Item Question Response* 46 Do your warranties cover all products, parts, and The manufacturer's warranty typically covers products and parts sold by labor? White Cap. For any services we provide, which would be on a rare occasion only, we typically attempt to have the service provider provide an industry standard warranty, and we will assist the Sourcewell Member in enforcing such warranty. 47 Do your warranties impose usage restrictions or Our restrictions or limitations that adversely affect coverage would be other limitations that adversely affect coverage? imposed by our manufacturers. 48 Do your warranties cover the expense of Any expenses covered by a warranty would be dictated by our manufacturer. technicians' travel time and mileage to perform warranty repairs? 49 Are there any geographic regions of the United To the extent our manufacturers provide a certified technician to perform States or Canada (as applicable) for which you warranty repairs, any limitations on geographic coverage would be dictated cannot provide a certified technician to perform by our manufacturer. warranty repairs? How will Sourcewell participating entities in these regions be provided Service would be dictated by our manufacturer. service for warranty repair? 50 Will you cover warranty service for items made by For items made by other manufacturers, which are the bulk of the items other manufacturers that are part of your proposal, White Cap offers, warranty issues are typically passed on to the original or are these warranties issues typically passed on equipment manufacturer. Ito the original equipment manufacturer? 51 What are your proposed exchange and return We will make every attempt to be flexible and accommodate the Sourcewell programs and policies? Member while following our general returns guidelines below: STANDARD RETURN POLICY Open Net 30 No restock fees will be applied to any standard product that is in good resell condition. Special orders are normally not returnable, unless the product is incorrect due to a mistake made by an employee of HD Supply White Cap. If an exception is made, a restock fee may apply. Cash Sales All cash sales require a receipt to receive a refund for product returned to the store and the following guidelines must be followed. Power tools bought within the 30 day period prior to the return can be returned for any reason, used or not, except gas and pneumatic tools, which require a vendor inspection to ensure user error was not an issue. Other items must have the appearance and ability to be sold as new. There are no refunds on specials, unless the product is incorrect due to a mistake made by an employee of White Cap. A restocking fee may apply. For refunds over $250.00, a check from HD Supply Holding's corporate office will be issued to the Sourcewell Member. CASH REFUNDS WITHOUT A RECEIPT All refunds without a receipt must be approved by a Branch Manager of HD Supply White Cap. With the manager's approval, all items on a cash refund without a receipt will be refunded at the same amount as White Cap's cost and subject to a 20% restock charge. 52 Describe any service contract options for the N/A — There are no service contract options for the items included in our items included in your proposal. proposal ("on call", retainer, etc.). Bid Number: RP VCP42 1CiI 9 - 91 VenGi70 White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 Table 10: Payment Terms and Financing Options A= : NM' Item ine Question Response* 53 Describe your payment terms and accepted payment Net 30 Credit Terms or Cash Payments (Cash, Check. Credit card). methods. We make it extremely easy for our Sourcewell members to set up new accounts whether they prefer credit or cash options. Many Sourcewell members are now also issuing White Cap BPAs (Blanket Purchase Agreements) for day-to-day business tied to our Sourcewell contract. 54 Describe any leasing or financing options available for use White Cap does not normally provide any financing or leasing by educational or governmental entities. options with exception of a few manufacturer programs. We actively promote our Sourcewell partner NCL Government Capital for this requirement. 55 Describe any standard transaction documents that you White Cap is attaching a standard quote form, a standard order propose to use in connection with an awarded contract form, and a standard proof of delivery form that we are currently (order forms, terms and conditions, service level using with our Sourcewell customers. Please note that the agreements, etc.). Upload a sample of each (as Sourcewell member name and number along with our contract applicable) in the document upload section of your number is clearly listed for any audit purposes. response. 56 Do you accept the P-card procurement and payment Yes. No additional cost to our valued Sourcewell members. process? If so, is there any additional cost to Sourcewell participating entities for using this process? Table 11: Pricing and Delivery Provide detailed pricing information in the questions that follow below. Keep in mind that reasonable price and product adjustments can be made during the term of an awarded Contract as described in the RFP, the template Contract, and the Sourcewell Price and Product Change Request Form. Line Item Question Response* 57 Describe your pricing model (e.g., line -item discounts or We are offering Sourcewell members a White Cap list less discount product -category discounts). Provide detailed pricing data price offering for our entire catalog. (including standard or list pricing and the Sourcewell We feel that this pricing model is the most clear, easiest to use discounted price) on all of the items that you want and certainly the best value for our Sourcewell members. This Sourcewell to consider as part of your RFP response. If model also allows White Cap to be able to better manage our applicable, provide a SKU for each item in your proposal. contract pricing through high inflationary periods like we are Upload your pricing materials (if applicable) in the experiencing today. document upload section of your response. 58 Quantify the pricing discount represented by the pricing Discounts range from 0% up to 45% off of White Cap's list price proposal in this response. For example, if the pricing in for our Sourcewell members. your response represents a percentage discount from MSRP or list, state the percentage or percentage range. 59 Describe any quantity or volume discounts or rebate Any quantity or volume discounts would be reviewed on a case by programs that you offer. case basis since we are offering deeply discounted pricing already to Sourcewell members. We are not offering a rebate program to Sourcewell members since we are incurring the administrative fee. 60 Propose a method of facilitating "sourced" products or At White Cap, we pride ourselves on being able to "go the extra related services, which may be referred to as "open mile" for our customers and find them what they need to get the market" items or "nonstandard options". For example, you job done even if it means sourcing beyond our large selection of may supply such items "at cost" or "at cost plus a stocked product. Due to our buying power and relations with our percentage," or you may supply a quote for each such primary manufacturers, we are able to do this as another value add request. for the customer and make our company a one stop shop. For "sourced" products, we would supply a quote for each such individual request. 61 Identify any element of the total cost of acquisition that is There are no additional costs associated with our response. NOT included in the pricing submitted with your response. This includes all additional charges associated with a purchase that are not directly identified as freight or shipping charges. For example, list costs for items like pre - delivery inspection, installation, set up, mandatory training, or initial inspection. Identify any parties that impose such costs and their relationship to the Proposer. Bid Number: RP VCP42 1C11 9 - 92 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 62 If freight, delivery, or shipping is an additional cost to the NA —There are no travel expense, delivery or shi.6XMlMlJn4 Sourcewell participating entity, describe in detail the additional cost to the Sourcewell members. complete freight, shipping, and delivery program. Prepaid freight will be offered on all standard stocked items shipped via ground transportation. For standard stock product, our delivery commitment within a 35 mile range from a stocking location to our customers is typically next day delivery. 'Other freight charges will be incurred for services such as expedited delivery, air freight, freight collect, sourced or special orders, export orders, hazardous materials, buyer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. 63 Specifically describe freight, shipping, and delivery terms or White Cap has 4 branches throughout Hawaii in Honolulu, Kahului, programs available for Alaska, Hawaii, Canada, or any Hilo and Kailua-Kona. We have 40+ branches in Canada under the offshore delivery. Brafasco trade name. Hawaii and Canada dictate their own pricing and freight terms. Our company does not have any physical branches in Alaska, but we service the area on a regular basis from our State of Washington branches. Some additional freight charges may apply when shipping to Alaska or other US Territories. 'Other freight charges will be incurred for services such as expedited delivery, air freight, freight collect, sourced orders, export orders, hazardous materials, buyer's carrier, shipments outside the contiguous U.S. or other special handling by the carrier. 64 Describe any unique distribution and/or delivery methods or For standard, stock product our delivery commitment within a 35 options offered in your proposal. mile range from a stocking location to our customers is typically next day delivery. In this scenario, we will be using our own fleet of delivery trucks owned by our company which we feel is somewhat unique and sets us apart from our competition. Normal, standard transit times apply should we have to send via an alternate carrier method (UPS, FedEx, etc.) or freight line. We also have a centralized logistics team that handles any special requests and negotiates freight rates so we can pass these savings onto our customers. Table 12: Pricing Offered Line Item The Pricing Offered in this Proposal is: Comments 65 c. better than the Proposer typically offers to GPOs, cooperative procurement organizations, or state purchasing White Cap has special departments. pricing heavily discounted up to 45% off of what we normally offer as our market price on all our stocked product categories. This pricing has been very popular with our Sourcewell customers. Also, we are able to go lower if need for large buys but of course never higher than our contract pricing. Our existing Sourcewell pricing file is attached. Bid Number: RpitycP42VCH 9 — 93 VenGi70 White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 Table 13: Audit and Administrative Fee A= : NM' Line Item Question Response* 66 Specifically describe any self -audit process or program that you Our internal compliance team will perform audits within our plan to employ to verify compliance with your proposed Contract company -wide Oracle operating system on a regular basis to with Sourcewell. This process includes ensuring that Sourcewell verify contract compliance with Sourcewell. We will achieve participating entities obtain the proper pricing, that the Vendor this in an efficient manner by ensuring the accounts are reports all sales under the Contract each quarter, and that the coded properly as soon as a Sourcewell member signs up Vendor remits the proper administrative fee to Sourcewell. Provide and wishes to do business with White Cap under the sufficient detail to support your ability to report quarterly sales to program. This process will include ensuring that Sourcewell Sourcewell as described in the Contract template. Members obtain proper pricing, that White Cap reports all sales under the program each quarter, and that White Cap remits the proper administrative fee to Sourcewell. Our company is already doing this on a regular basis with our Federal government business, being that we have a Federal GSA Schedule. We also do this with certain large National Accounts in which we have specific contracts that require nationwide consistent pricing and detailed reporting within specific time frames. 67 If you are awarded a contract, provide a few examples of internal Our company has invested numerous resources into the metrics that will be tracked to measure whether you are having Sourcewell program since we were awarded the contract success with the contract. nearly 4 years ago. We updated our ERP system Oracle with the functionality to very accurately track all sales once we set up a customer as Sourcewell. 68 Identify a proposed administrative fee that you will pay to White Cap proposes an administrative fee of 1%, which we Sourcewell for facilitating, managing, and promoting the Sourcewell will pay to Sourcewell for facilitating, managing, and Contract in the event that you are awarded a Contract. This fee promoting the Sourcewell contract in the event that we are is typically calculated as a percentage of Vendor's sales under the awarded a new contract. This is the same amount that we Contract or as a per -unit fee; it is not a line -item addition to the have been paying under our existing contract #121218-HDS. Member's cost of goods. (See the RFP and template Contract for additional details.) Bid Number: RpitycP42 i1Cll 9 — 94 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 Table 14A: Depth and Breadth of Offered Equipment Products and Services EXHIBIT 4 Item Question Response* 69 Provide a detailed description of the We are in a class of our own as the only national construction supplier on the equipment, products, and services that you market today offering professional type products and services. Our extensive are offering in your proposal. inventory, combined with will call, site delivery and direct ship options, enable us to perform to the highest customer service expectations. White Cap has an expansive product offering of approximately 150,000 SKUs of quality, name -brand and proprietary products at competitive prices. With millions of dollars worth of inventory in 400+ locations, and growing in U.S. and Canada, along with a vast fleet of delivery trucks, we have what you need, where you need it, when you need it. Additionally, our team of more than 3,000 customer -facing associates are experts in their fields, so you can rely on us for professional service and solutions. We bring comprehensive knowledge of facility MRO, Federal, State and Local government, concrete, tilt -up, bridge, highway, grading, waterproofing, residential and commercial construction practices to provide the expertise you expect. We offer an extensive line of facility MRO, industrial & building supplies with related equipment, safety supplies, tools and many more of the products Sourcewell members have to have to get the job done. 70 Within this RFP category there may be PRIMARY PRODUCTS: subcategories of solutions. List subcategory MRO products titles that best describe your products and Facilities Maintenance products services. Construction products Concrete and masonry hand tools and accessories All trade hand tools and layout tools Job site and personal safety equipment Above and below grade waterproofing Plumbing Anchoring systems and connectors Connectors Tilt -up hardware and brace rentals Erosion control Soil stabilization Brand name power tools Pipes and fittings Drainage supplies Storm water pollution prevention products Drywall accessories Welding supplies Lightweight construction equipment and accessories Concrete additives and cementitious products Decorative and stamped concrete accessories Lumber Rebar and wire mesh Fire protection products Division 10 specialties VALUE-ADDED SERVICES Fleet of safety awareness trailers On -site safety training and demonstrations Rebar shop drawings Tilt -up equipment rental Rebar fabrication Power tool repair facilities Pre -bid and submittal packages for estimating Change order support Contractor education seminars Online ordering and back office services 24/7 ordering through the White Cap Mobile App Rentals (in select markets) Guardrail systems Traffic control products Gas -detection systems Bid Number: RP yCP42VCll 9 - 95 VenWWWWO White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 Table 14B: Depth and Breadth of Offered Equipment Products and Services EXHIBIT 4 Indicate below if the listed types or classes of equipment, products, and services are offered within your proposal. Provide additional comments in the text box provided, as necessary. Line Item Category or Type Offered Comments 71 Facility MRO <• Yes Core, stocked product offerings from White Cap. C No 72 Industrial supplies or building materials 0. Yes Core, stocked product offerings from White Cap. s" No 73 Electric, mechanical, fluid, or pneumatic power 0 Yes Special order as needed to support our Sourcewell transmission r No customers through our vast supplier/mfg. relationships with White Cap. 74 Electrical service or lighting 0. Yes Special order as needed to support our Sourcewell • No customers through our vast supplier/mfg. relationships with White Cap. 75 Plumbing or waterworks r Yes Some core, stocked product offerings from White Cap. • No Special order as needed to support our Sourcewell customers through our vast supplier/mfg. relationships with White Cap. 76 Services related to the offering of the solutions Yes White Cap offers services for many of the core product in Lines 71-75 above r- No lines we carry. For example, we offer no charge safety/PPE training. Construction is one of the most dangerous occupations around; White Cap can help entities and their crew stay safe. Our professional safety specialists host safety awareness trainings across the country on fall protection, heat stress, proper PPE use and more. Another example would be in White Cap having custom rebar fabrication facilities across the country, so we can knock out large rebar orders fast, minimizing waste and saving entities time and money. Straight, bent, cut or customized, we make it to whatever spec you need. Table 15: Exceptions to Terms, Conditions, or Specifications Form Line Item 77. 1: To identify any exception, or to request any modification, to the Sourcewell template Contract terms, conditions, or specifications, a Proposer must submit the exception or requested modification on the Exceptions to Terms, Conditions, or Specifications Form immediately below. The contract section, the specific text addressed by the exception or requested modification, and the proposed modification must be identified in detail. Proposer's exceptions and proposed modifications are subject to review and approval of Sourcewell and will not automatically be included in the contract. Contract Section Term, Condition, or Specification Exception or Proposed Modification NA No Exceptions Documents Ensure your submission document(s) conforms to the following: 1. Documents in PDF format are preferred. Documents in Word, Excel, or compatible formats may also be provided. 2. Documents should NOT have a security password, as Sourcewell may not be able to open the file. It is your sole responsibility to ensure that the uploaded document(s) are not either defective, corrupted or blank and that the documents can be opened and viewed by Sourcewell. Bid Number: RPAYCP ilCll 9 — 96 VenGi70 White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 3. Sourcewell may reject any response where any document(s) cannot be opened and viewed by Sourcewell. EXHIBIT 4 4. If you need to upload more than one (1) document for a single item, you should combine the documents into one zipped file. If the zipped file contains more than one (1) document, ensure each document is named, in relation to the submission format item responding to. For example, if responding to the Marketing Plan category save the document as "Marketing Plan." • Pricing - Sourcewell - Pricing White Cap, L.P..xlsx - Wednesday August 31, 2022 10:02:37 • Financial Strength and Stability - White Cap Enterprise Gov.pdf - Wednesday August 31, 2022 10:11:11 • Marketing Plan/Samples - White Cap Marketing Docs.zip - Friday September 09, 2022 08:44:40 • WMBE/MBE/SBE or Related Certificates - Supplier_ Diversity_Handout WC.pdf - Friday September 09, 2022 08:04:34 • Warranty Information - Terms & Conditions of Sale & Warranty- White Cap.pdf - Wednesday August 31, 2022 10:52:21 • Standard Transaction Document Samples - Standard Transaction Docs.zip - Wednesday August 31, 2022 15:05:07 • Upload Additional Document - White Cap additional docs.zip - Wednesday August 31, 2022 13:29:17 Bid Number: RpitycP42VCH 9 — 97 VenGi7O White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 40M : M, Addenda, Terms and Conditions PROPOSER AFFIDAVIT AND ASSURANCE OF COMPLIANCE I certify that I am the authorized representative of the Proposer submitting the foregoing Proposal with the legal authority to bind the Proposer to this Affidavit and Assurance of Compliance: 1. The Proposer is submitting this Proposal under its full and complete legal name, and the Proposer legally exists in good standing in the jurisdiction of its residence. 2. The Proposer warrants that the information provided in this Proposal is true, correct, and reliable for purposes of evaluation for contract award. 3. The Proposer, including any person assisting with the creation of this Proposal, has arrived at this Proposal independently and the Proposal has been created without colluding with any other person, company, or parties that have or will submit a proposal under this solicitation; and the Proposal has in all respects been created fairly without any fraud or dishonesty. The Proposer has not directly or indirectly entered into any agreement or arrangement with any person or business in an effort to influence any part of this solicitation or operations of a resulting contract; and the Proposer has not taken any action in restraint of free trade or competitiveness in connection with this solicitation. Additionally, if Proposer has worked with a consultant on the Proposal, the consultant (an individual or a company) has not assisted any other entity that has submitted or will submit a proposal for this solicitation. 4. To the best of its knowledge and belief, and except as otherwise disclosed in the Proposal, there are no relevant facts or circumstances which could give rise to an organizational conflict of interest. An organizational conflict of interest exists when a vendor has an unfair competitive advantage or the vendor's objectivity in performing the contract is, or might be, impaired. 5. The contents of the Proposal have not been communicated by the Proposer or its employees or agents to any person not an employee or legally authorized agent of the Proposer and will not be communicated to any such persons prior to Due Date of this solicitation. 6. If awarded a contract, the Proposer will provide to Sourcewell Participating Entities the equipment, products, and services in accordance with the terms, conditions, and scope of a resulting contract. 7. The Proposer possesses, or will possess before delivering any equipment, products, or services, all applicable licenses or certifications necessary to deliver such equipment, products, or services under any resulting contract. 8. The Proposer agrees to deliver equipment, products, and services through valid contracts, purchase orders, or means that are acceptable to Sourcewell Members. Unless otherwise agreed to, the Proposer must provide only new and first -quality products and related services to Sourcewell Members under an awarded Contract. 9. The Proposer will comply with all applicable provisions of federal, state, and local laws, regulations, rules, and orders. 10. The Proposer understands that Sourcewell will reject RFP proposals that are marked "confidential" (or "nonpublic," etc.), either substantially or in their entirety. Under Minnesota Statutes Section 13.591, subdivision 4, all proposals are considered nonpublic data until the evaluation is complete and a Contract is awarded. At that point, proposals become public data. Minnesota Statutes Section 13.37 permits only certain narrowly defined data to be considered a "trade secret," and thus nonpublic data under Minnesota's Data Practices Act. 11. Proposer its employees, agents, and subcontractors are not: 1. Included on the "Specially Designated Nationals and Blocked Persons" list maintained by the Office of Foreign Assets Control of the United States Department of the Treasury found at: https://www.treasury.ciov/ofac/downloads/sdniist.pdf; 2. Included on the government -wide exclusions lists in the United States System for Award Management found at: https://sam.aov/SAM/; or 3. Presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated Bid Number: RpitygP ilCll 9 - 98 VenG7QQW0 White Cap, LP DocuSign Envelope ID: 4BDC617B-C22E-4B4A-8057-C42295F83EC5 by the State of Minnesota; the United States federal government or the Canadian government, as appBR&Ta4 Participating Entity. Vendor certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this solicitation. r- By checking this box I acknowledge that I am bound by the terms of the Proposer's Affidavit, have the legal authority to submit this Proposal on behalf of the Proposer, and that this electronic acknowledgment has the same legal effect, validity, and enforceability as if I had hand signed the Proposal. This signature will not be denied such legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. - Rye Dugosh, National Sales Manager - Government, White Cap, L.P. The Proposer declares that there is an actual or potential Conflict of Interest relating to the preparation of its submission, and/or the Proposer foresees an actual or potential Conflict of Interest in performing the contractual obligations contemplated in the bid. r Yes r No The Bidder acknowledges and agrees that the addendum/addenda below form part of the Bid Document. Check the box in the column "I have reviewed this addendum" below to acknowledge each of the addenda. I have reviewed the File Name below addendum and attachments (if applicable) Addendum_5_Facility_MRO_Supplies_RFP_091422 Wed August 24 2022 02:50 PM Addendum_4_Facility_MRO_Supplies_RFP_091422 r Wed August 17 2022 02:11 PM Addendum_3_Facility_MRO_Supplies_RFP_091422 IRV Mon August 1 2022 09:35 AM Addendum_2_Facility_M RO_Supplies_RFP_091422 Fri July 29 2022 03:22 PM Addendum_1_Facility_M RO_Supplies_RFP_091422 Fe Thu July 28 2022 04:35 PM Pages Bid Number: RP yCP42VC11 9 - 99 VenGi7O White Cap, LP Public Works Agency www.santa-ana.org/public-works Item # 10 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Award Construction Contract and Amend CIP for the West Willits Protected Bike Lanes from Fairview Street to Raitt Street AGENDA TITLE Award a Construction Contract to Excel Paving Co. in the Amount of $1,798,800.00 for the West Willits Protected Bike Lanes from Fairview Street to Raitt Street Project, with an Estimated Project Delivery Cost of $2,277,000.00 (Project No. 19-6948, ATPSBL- 5063(195)) (Non -General Fund) RECOMMENDED ACTION 1. Award a construction contract to Excel Paving Co., the lowest responsible bidder, in accordance with the base bid in the amount of $1,798,800.00, for construction of the West Willits Protected Bike Lanes from Fairview Street to Raitt Street Project, for a term beginning March 7, 2023 and ending upon project completion, and authorize the City Manager to execute the contract subject to non - substantive changes approved by the City Manager and the City Attorney. 2. Approve the Project Cost Analysis for a total estimated construction delivery cost of $2,277,000.00, which includes $1,798,800.00 for the construction contract, $270,000.00 for contract administration, inspection and testing, and a $208,200.00 project contingency for unanticipated or unforeseen work. DISCUSSION The City's General Plan Mobility Element and 2020 Safe Routes to School Plan identifies the need for protected bike lanes and other improvements on West Willits Street from Fairview Street to Raitt Street (Exhibit 1). The scope of work includes constructing a protected bikeway system including raised medians, irrigation, landscape, bike detection, curb ramps, cross gutters, traffic signal modifications, traffic loops, and crosswalk enhancements. Once completed, the newly constructed bike lanes will help create a safer route for the community to improve the quality of life for all users. Public Outreach and Contractor Participation To provide an opportunity for local vendors to submit bids, the City notified a total of 916 regional vendors via PlanetBids, many of which are Santa Ana based. Five vendors requested bidding documents and a total of five bids were received. One of the five bids was received from a Santa Ana contractor. City Council 10 — 1 3/7/2023 Award Construction Contract to Excel Paving Co. March 7, 2023 Page 2 As legally required, a Notice Inviting Bids was advertised in the Orange County Register newspaper on October 10, October 17, October 24, and October 30 of 2022. The project was also advertised in PlanetBids from October 10, 2022 through November 7, 2022. Bids were received electronically via PlanetBids on November 7, 2022. Bid Results Summary RANK BIDDER'S NAME LOCATION BASE BID 1 Excel Paving Co Long Beach, CA $1,798,800.00 2 Klassic Engineering & Orange, CA $1,876,000.00 Construction, Inc. 3 Hardy & Harper, Inc. Lake Forest, CA $1,970,000.00 4 Onyx Paving Company, Inc. Anaheim, CA $1,972,000.00 5 HZS Engineering and Santa Ana, CA $2,584,050.00 Construction A total of five bids were received, and all were deemed responsive. Excel Paving Co., Inc. submitted the lowest responsive base bid in the amount of $1,798,800.00 (Exhibit 2). As specified in the bid documents, the lowest bid shall be determined on the basis of the Base Bid. Based on the bid analysis and a contractor's reference check, staff recommends awarding the construction contract to Excel Paving Co., in the amount of the base bid totaling $1,798,800.00 (Exhibit 3). Excel Paving Co. has successfully completed various projects for the City of Santa Ana throughout the last several years. The most recent projects are Miscellaneous Storm Drain Repairs, Bush Street Bike Improvements, and Traffic Signal and Bulb -outs at Bishop -Pacific -Shelton Bicycle Boulevards. Project Delivery To deliver a complete project, in addition to the construction contract, the estimated total project delivery cost includes construction administration, inspection, and testing, along with an allowance for contingencies to account for unexpected or unforeseen conditions. Construction administration and inspection includes construction management; inspection of the Contractor's work to ensure contract compliance, workmanship, and quality; and materials testing. As indicated in the Cost Analysis (Exhibit 4) and as summarized in the table below, the estimated total construction delivery cost of the project is $1,798,800.00. Project Item Total Construction Contract $1,798,800.00 Construction Administration, Inspection, Testing $270,000.00 City Council 10-2 3/7/2023 Award Construction Contract to Excel Paving Co. March 7, 2023 Page 3 Contingencies $208,200.00 TOTAL CONSTRUCTION DELIVERY COST $2,277,000.00 The construction funding for this project was approved by Council in the 19/20 CIP (Exhibit 5). It has subsequently been carried forward to be available in Fiscal Year Ending 2023. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended actions are exempt from further review. Categorical Exemption Environmental Review No. ER- 2019-32 was filed for the project. FISCAL IMPACT As indicated in the Cost Analysis, the estimated total construction delivery cost of the project is $2,277,000.00, which includes construction, contract administration, inspection, testing, and an authorized contingency. Project No. 19-6948 is the number assigned to the Project Plans and Specifications and the Notice Inviting Bids. Project No. 19-6948 is the number assigned to the funding for tracking of all expenditures to deliver the construction of this project. The following table summarizes the funds budgeted and available in current FY 2022-23 for expenditure to deliver construction of this project. Any remaining balances not expended at the end of the fiscal year will be presented to City Council for approval of carryovers to FY 2023-24. Accounting Accounting Unit - Fiscal Unit - Account Fund Account No. Amount Year No. Description Description (Project No.) ExistingProject Budget Ex uding Design Engineering) Traffic System Active 14817615- Management Transportation 2022-23 66220 Grant - ATP- Program $2,277,000.00 (19-6948) SB1 Augmentation — Augmentation Improvements Other Than Buildings Total $2,277,000.00 EXHIBIT(S) 1. Location Map 2. Bid Proposal 3. Construction Contract City Council 10 — 3 3/7/2023 Award Construction Contract to Excel Paving Co. March 7, 2023 Page 4 4. Cost Analysis 5. CIP Project Sheet Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency Approved By: Kristine Ridge, City Manager City Council 10 — 4 3/7/2023 Exhibit 1 SANTA ANA Project No. 19-6948 (ATPSBL-5063(195)): Pi West Willits Protected Bike Lanes from Fairview �CY PUBLIC WORKS AGENCY I Street to Raitt Street City Council 10 — 5 3/7/2023 Exhibit 2 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 19-6948 WEST WILLITS STREET PROTECTED BICYCLE LANES FEDERAL PROJECT NO: ATPSBI-5063(195) BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: REQUIREMENT: PAL P. INC DBA EXCEL PAVING COMPANY The undersigned bidder declares that they have carefully examined the location of the proposed work, that they have examined the Contract Documents in its entirety and hereby proposes to fcroish all material and do all the work required to complete the said work in accordance with said plans (if any) and the specifications for the unit price(s) or lump sum(s) set forth in the following schedule: Item Description Qty Unit Unit Price Amount 1 Unclassified Excavation 1,000 CY S 230 $ 230000 2 AC Pavement 190 TN $ 400 76000 3 Raised Curb Exposed Aggregate PCC 2,300 SF $ $ Median 28 64440 4 PCC Curb Type B-3 (Modified 8") 7,000 LF S S 39 273000 5 PCC Curb Ramp 8,900 SF $ $ 36 320400 6 PCC Curb & Gutter (Type A-2-8) 200 LF $ $ 79 15800 7 PCC Cross -flutter (Arterial Street) 1,000 SF $ $ 28 28000 8 PCC Crass -Gutter (Local Street) 5,100 SF $ $ 24 122400 9 PCC Sidewalk (T=4") 1,800 SF $ $ 20 36000 10 1 Root Shave 4 EA S $ 950 3800 11 Landscaping with Imported Soil 1 LS $ $ 7sn0�o as000 12 irrigation 1 LS S 136000 S 136000 13 Project Advertisement Sign 2 EA 1400 2800 City Council 10 — 6 3/7/2023 P-] of P-40 Exhibit 2 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 19-6948 'BEST WILLITS STREET PROTECTED BICYCLE LANES FEDERAL PROJECT NO: ATPSB 1-5063(195) Item Description Qty Unit Unit Price Amount 14 Traffic Signal Modification at 1 LS $ $ Willits St & Sullivan St 67000 6700fl 15 Video Detection System (VDS) at 1 LS S $ Willits St & Sullivan St 58000 58000 16 Video Detection System (VDS) at 1 LS $ Willits St & Fairview St 59000 5900[1 17 IP Communication Systern at 1 LS S $ Willits St & Sullivan St 11000 11000 18 Signing and Striping 1 LS $ 214000 $ 210000 19 Construction Permit 1 LS 1$10,200 $10,200 TOTAL BASE BID $ 1,798,800.00 ADD ALTERNATIVE 1 Item Description Qty Unit Unit Price Amount 20 Cold Mill Variable (0" to 1.25'� 76,200 SQ $ 0.45 S 34290 21 Asphalt Rubber Hot Mix 1,703 TN $ 230 $ 391690 ADD ALTERNATIVE 2 Item Description Qty Unit Unit Price Amount 22 Curb Ramp Metal Handrail 90 LF $ 800 $ 72000 City Council 10 — 7 3/7/2023 P 2 of P-40 Exhibit 2 CITY OF SANTA ANA, PROPOSAL PROJECT NO.: 19-6948 WEST WILLITS STREET PROTECTED BICYCLE LANES FEDERAL PROJECT NO: ATPS13I-5063(195) The lowest responsible bidder shall be selected based on the total base bid. The City reserves the right to award the Base Bid, and any, all, or none of the add -alternate bid items (if any). * The quantity for this bid item is shown for bid comparison only. This bid item shall not be subject to the "25%" limit as stated in Section 3-2 of the Standard Specifications. The actual amount for this item will be dictated by the actual quantity used, and the Agency reserves the right to increase or decrease the quantity of this item accordingly. t This bid item is considered a Specialty Item per Section 2-3.2 of the Standard Specifications. TIME FOR COMPLETION OF IMPROVEMENTS AND LIQUIDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within ninety (90) working days after the commencement date stated in the Notice to Proceed. The liquidated damages amount, in lieu of the amount specified in Subsection 6-9 of the Standard Specifications, shall be� ��2_�6g_0D per calendar day. PAP CNN D13 Name of Firm EXCEL PALING COMPANY Signature of BIDDER _ Title P (If an individual, so state. If a firm or co -partnership, state the firm name and give the names of all individual co-partners composing the firm. If a corporation, state legal name of corporation, and names of President, Secretary, Treasurer and Manager, thereof.) PALP, INC tiBA M51- PAVING COMPANY Curtis P. Brown III President and Chief Executive Officer David A. Drukker Vice President and Chief Finenciel Officer Marcia S. Miller secretary Criss, A. Phillips Asst. Secretary City Council 10 — 8 3/7/2023 P-3 of P-40 EXHIBIT 3 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET This CONSTRUCTION CONTRACT is made and entered into this 7t' day of March, 2023 by and between the City of Santa Ana, California, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "CITY"), and Palp, Inc. DBA Excel Paving Company (hereinafter "CONTRACTOR"). WITNESSETH: The CITY and the CONTRACTOR, for the consideration hereinafter named, mutually agree as follows: 1. CONTRACTOR agrees to perform all the work and furnish all the materials at its own cost and expense necessary to construct and complete in a good and workmanlike manner and to the satisfaction of the City Engineer of the CITY, the West Willits Protected Bike Lanes From Fairview Street to Raitt Street Project (hereinafter referred to as the "WORK OF IMPROVEMENT") identified in and in accordance with the Contract Documents prepared by the City's Public Works Agency and approved by the City Council. 2. The complete Construction Contract consists of the "Contract Documents" as defined by the Standard Specifications for Public Works Construction and which include the following: • Notice Inviting Bids • Information to Bidders • Bid Proposal • Bid Bond • Contract Form • Contract Bonds • General Provisions • Special Provisions • Technical Provisions and Project Plans • Community Workforce Agreement • Appendices In case of conflict between the Contract Documents, the precedence of documents shall be as established in the Standard Specifications for Public Works Construction. 3. CITY agrees to pay and CONTRACTOR agrees to accept in full payment to complete the WORK OF IMPROVEMENT the sum total amount not to exceed One Million Seven Hundred and Ninety Eight Thousand and Eight Hundred Dollars and No Cents ($1,798,800.00), as set forth and identified in the BID PROPOSAL, which is attached hereto and incorporated herein as Exhibit "A." The BID PROPOSAL contains a schedule of unit price(s) or lump sum(s) based on approximate quantities only, and the City does not expressly or by implication agree that the actual amount of work will correspond therewith, but reserves the right to increase or decrease the amount of any class or portion of the work or to omit portions of the work as may be deemed necessary or advisable. rev.09/09tyCouncil 10 — 9 Pag?71/2613 4. CONTRACTOR agrees to complete the WORK OF IMPROVEMENT within the time specified in the Time for Completion of Improvements section of the BID PROPOSAL (Exhibit "A") including commencing construction within the timeframe therein specified after issuance of a Notice to Proceed. 5. The CONTRACTOR will pay, and will require all subcontractors to pay, all employees on the WORK OF IMPROVEMENT a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations for this work in accordance with applicable State and Federal law. 6. If applicable, the CONTRACTOR shall adhere to the CITY'S Community Workforce Agreement (CWA), a pre -hire collective bargaining agreement, which establishes the labor relations policies and procedures for CONTRACTOR to follow in the crafts persons employed to complete the WORK OF IMPROVEMENT as more fully described in the CWA. The CWA may be found on the City's website at: http://www.santa-ana.ortL�/pwa/documents/CWA.pdf 7. CONTRACTOR shall, after award of this Contract, furnish two bonds to be approved by the CITY, one in the amount of One Hundred Percent (100%) of the Contract price, to guarantee the faithful performance of the work (Performance Bond), and one in the amount of One Hundred Percent (100%) of the Contract price to guarantee payment of all claims for labor and materials furnished (Payment Bond). This Contract shall not become effective until such bonds are supplied to and approved by the CITY. 8. CONTRACTOR shall, prior to the release of the performance and payment bonds or the retention payment, furnish a warranty performance and payment bond (Warranty Bond). Said Warranty Bond shall also be required as a condition of project acceptance. For projects up to Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of Ten Thousand Dollars ($10,000) or Twenty Percent (201/o) of the final contract price. For projects above Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of One Hundred Thousand Dollars ($100,000) or Ten Percent (10%) of the final contract price. 9. CONTRACTOR shall, after award of this. Contract, furnish Certificates of Liability Insurance and Worker's Compensation Insurance as outlined in the General Provisions, to be approved by the CITY. 10. INDEMNIFICATION. To the fullest extent allowed by law, CONTRACTOR and its Subcontractors hereby agree to defend, indemnify, and hold harmless CITY, its City Council, boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel acceptable to CITY, from and against any liability, claims, actions, costs, damages or losses, including reasonable costs and attorney's fees, for injury, including death to any person or damage to any property, arising directly or indirectly from, or in any manner relating to, any of the following: (i) Performance or nonperformance of the Work of Improvement by CONTRACTOR or its Subcontractors of any lower tier; (ii) Performance or nonperformance by CONTRACTOR or its Subcontractors of any lower tier, of any of the obligations under the Contract Documents; City Council 10 — 10 r att/3 (iii) The construction activities of CONTRACTOR or its Subcontractors of any lower tier, either on the project site or on other properties; (iv) The payment or nonpayment by CONTRACTOR of any of its Subcontractors of any lower tier, for Work of Improvement performed on or off the project site; and (v) Any personal injury, property damage or economic loss to third persons related to and arising from the performance or nonperformance by CONTRACTOR or its Subcontractors of any lower tier, of the Work of Improvement. (vi) The indemnity obligations of Subcontractors provided by this Section shall be included in all subcontract documents issued by CONTRACTOR. Nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in favor of CONTRACTOR against CITY or any other Indemnitee. 11. FEDERAL PROVISIONS. The federal prevailing wage rates are attached hereto as Exhibit `B" and incorporated herein by this reference. When the federal prevailing wage rates and California prevailing wage rates differ for similar kinds of labor, the CONTRACTOR shall not pay less than the higher rate. The provisions of Form FHWA 1273 apply to this Construction Contract and all work performed by the CONTRACTOR and its subcontractor and lower tier subcontractors and is attached hereto as Exhibit "C" and incorporated herein by this reference. The CONTRACTOR shall comply with all federal requirements including, but not limited to, the Federal - Aid Contract Provisions attached hereto as Exhibit "D" and incorporated herein by this reference. With respect to any conflict between such federal requirements and the Contract Documents and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control. City Council 10 —11 / 3 Nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in favor of CONTRACTOR against CITY or any other indemnitee. IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract on the day and year first above written. ATTEST: Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: JOHN FUNK Chief Assistant City Attorney RECOMMENDED FOR APPROVAL: NABIL SABA, PE Executive Director Public Works Agency CITY OF SANTA ANA KRISTINE RIDGE City Manager CONTRACTOR: Palp, Inc. DBA Excel Paving Company j ME: Curtis P. Brown III 'TTLE: President Page 4 of 4 City Council 10 — 12 3/7/2023 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Los Angeles Myisha Monique Riven, Notary Public On before me, Notary Public, > , (Here insert name and title of the officer) personally appeared Curtis P. Brown III who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/a)O subscribed to the within instrument and acknowledged to me that he/sake/t* executed the same in his/l*/tb* authorized capacity(ies), and that by his/l*/tl* signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. kAlU1A,_V_-i1 Signature o otary Public MYISHA MONIQUE RiVEN n COMM. #2377053 lbf� Notary Public -California ILLOS ANGELtS COUNTY (Notary Seal) y Comm. Expires Sep 30, 2025� • bT. d � -.7—.J Cp.^. 4�4S�C7�� ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In stick instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/they- is /are ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re -seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. •- Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. •'r Indicate title or type of attached document, number of pages and date. ti Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document C 2004-2015 ProLink Signing Service, Inc. - All Rights Reserved w m,.TheProLink.com - Nationwide Notary Service EXHIBIT "A" CITY OF SANTA ANA PROPOSAL PROJECT NO.: 19-6948 WEST WILLITS STREET PROTECTED BICYCLE LANES FEDERAL PROJECT NO: ATPSB 1-5063 (195) BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA ANA PA►LP: INC SBA FROM: EXCEL PAVING COMPANY REQUIREMENT: REBID The undersigned bidder declares that they have carefully examined the location of the proposed work, that they have examined the Contract Documents in its entirety and hereby proposes to famish all material and do all the work required to complete the said work in accordance with said plans (if any) and the specifications for the unit price(s) or lump sums) set forth in the following schedule: Item Description Qty Unit Unit Price 5 230 Amount $ 230000 1 Unclassified Excavation AC Pavement - 1,000 CY 2 190 TN $ 400 $ Raised Curb Exposed Aggregate PCC 76000 3 2,300 SF $ $ Median PCC Curb Type B-3 (Modified 8') 28 64400 4 7,000 LF $ S 39 273000 5 PCC Curb Ramp 8,900 SF $ $ 36 320400 6 PCC Curb & Gutter (Type A-2-8) 200 LF $ $ 79 15800 7 PCC Cross -Gutter (Arterial Street) 1,000 SF $ $ 28 28000 8 PCC Cross -Gutter (Local Street) 5,100 SF $ $ 24 122400 9 PCC Sidewalk (T=4"} 1,800 SF $ $ 20 36000 10 Root Shave 4 EA $ $ 950 3800 11 Landscaping with Imported Soil 1 LS $ $ 75000 75000 12 Irrigation 1 LS $ 136000 $ 136000 13 Project Advertisement Sign 2 EA 1400 2800 City Council p-1 ofp-0 — 14 3/7/2023 EXHIBIT "A" CITY OF SANTA ANA REBID PROPOSAL PROJECT NO.: 19-6948 WEST WILLITS STREET PROTECTED BICYCLE LANES FEDERAL PROJECT NO: ATPSB 1-5063(195) Item Description Qty Unit Unit Price Amount 14 Traffic Signal Modification at 1 LS $ 67000 $ 67fM Willits at & Sulhvan at Video Detection System (VDS) at $ $ —� 15 1 LS Willits St & Sullivan St $ 58000 ' $ S8000 16 Video Detection System (VDS) at 1 LS Willits St & Fairview St $ 59000 j ! $ 59000 17 IP Communication System at 1 LS Willits St & Sullivan St 11000 11000 18 'Signing and Striping 1 LS $ $ 210000 210000 19 Construction Permit 1 LS $10,200 $16,200 TOTAL BASE BID f $ 1,798,800.00 City Council P_2 ofP4bO — 15 3/7/2023 EXHIBIT "A" CITY OF SANTA ANA 1 REBID PROPOSAL PROJECT NO.: 19-6948 WEST WILLITS STREET PROTECTED BICYCLE LANES FEDERAL PROJECT NO: ATPSBI-5063(195) The lowest responsible bidder shall be selected based on the total base bid. The City reserves the right to award the Base Bid, and any, all, or none of the add -alternate bid items (if any). * The quantity for this bid item is shown for bid comparison only. This bid item shall not be subject to the "25%" limit as stated in Section 3-2 of the Standard Specifications. The actual amount for this item will be dictated by the actual quantity used, and the Agency reserves the right to increase or decrease the quantity of this item accordingly. f This bid item is considered a Specialty Item per Section 2-3.2 of the Standard Specifications. TIME FOR COMPLETION OF IMPROVEMENTS AND LIQUIDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within ninety (90) working days after the commencement date stated in the Notice to Proceed. The liquidated damages amount, in lieu of the amount specified in Subsection 6-9 of the Standard Specifications, shalplAie per calendar day. Name of Firm EXCEL PAVING COMPANY Signature of BIDDER (' Title (If an individual, so state. If a firm or co -partnership, state the firm name and give the names of all individual co-partners composing the firm. If a corporation, state legal name of corporation, and names of President, Secretary, Treasurer and Manager, thereof.) PALPI INC DSA €XCEL PAVING COMPANY Curtis P. Brown 111 President end chief EXIMAlve Officer David A. Vice President Drukker and Chief Flnenctal officer Marcia S. Miller Secretary Crissa A. Phillips Asst. Secretary City Council - ° - — 16 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET EXHIBIT "B" FEDERAL PREVAILING WAGE RATES City Council 10 — 17 3/7/2023 10/18/22, 8:40 AM SAM.gov "General Decision Number: CA2022O024 10/14/2022 Superseded General Decision Number: CA2021OO24 State: California Construction Types: Building, Heavy (Heavy and Dredging) and Highway County: Orange County in California. BUILDING CONSTRUCTION PROJECTS; DREDGING PROJECTS (does not include hopper dredge work); HEAVY CONSTRUCTION PROJECTS (does not include water well drilling); HIGHWAY CONSTRUCTION PROJECTS Note: Contracts subject to the Davis -Bacon Act are generally required to pay at least the applicable minimum wage rate required under Executive Order 14026 or Executive Order 13658. Please note that these Executive Orders apply to covered contracts entered into by the federal government that are subject to the Davis -Bacon Act itself, but do not apply to contracts subject only to the Davis -Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). JIf the contract is entered linto on or after January 30, 12022, or the contract is renewed or extended (e.g., an loption is exercised) on or after January 30, 2022: JIf the contract was awarded onj for between January 1, 2015 andl January 29, 2022, and the contract is not renewed or lextended on or after January 130, 2022: Executive Order 14026 generally applies to the contract. The contractor must pay all covered workers at least $15.00 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in 2022. Executive Order 13658 generally applies to the contract. The contractor must pay all) covered workers at least $11.25 per hour (or the applicable wage rate listedi on this wage determination, if it is higher) for all hours spent performing on that contract in 2022. The applicable Executive Order minimum wage rate will be adjusted annually. If this contract is covered by one of the Executive Orders and a classification considered necessary for performance of work on the contract does not appear on this wage determination, the contractor must still submit a conformance request. Additional information on contractor requirements and worker protections under the Executive Orders is available at https://www.dol.gov/agencies/whd/government-contracts. EXHIBIT "B" REBID https://sam.gov/UgVicettffl"n/CA20220024/15 10 — 18 3/7/2023 1/25 10/18/22, 8:40 AM SAM.gov Modification Number Publication Date 0 01/07/2022 1 01/14/2022 2 01/21/2022 3 02/04/2022 4 02/18/2022 5 02/25/2022 6 03/04/2022 7 04/01/2022 8 04/29/2022 9 08/05/2022 10 08/12/2022 11 08/19/2022 12 09/02/2022 13 09/30/2022 14 10/07/2022 15 10/14/2022 ASBE0005-002 07/04/2022 Rates Fringes Asbestos Workers/Insulator (Includes the application of all insulating materials, protective coverings, coatings, and finishes to all types of mechanical systems) ..... $ 49.58 25.27 Fire Stop Technician (Application of Firestopping Materials for wall openings and penetrations in walls, floors, ceilings and curtain walls) ...........................$ 32.09 19.66 ASBE0005-004 07/04/2022 Rates Fringes Asbestos Removal worker/hazardous material handler (Includes preparation, wetting, stripping, removal, scrapping, vacuuming, bagging and disposing of all insulation materials from mechanical systems, whether they contain asbestos or not) .... $ 23.52 13.37 * BRCA0004-010 05/01/2020 Rates Fringes BRICKLAYER; MARBLE SETTER ........ $ 41.39 18.95 *The wage scale for prevailing wage projects performed in Blythe, China lake, Death Valley, Fort Irwin, Twenty -Nine Palms, Needles and 1-15 corridor (Barstow to the Nevada State Line) will be Three Dollars ($3.00) above the standard San Bernardino/Riverside County hourly wage rate ---------------------------------------------------------------- BRCA0018-004 06/01/2021 EXHIBIT "B" REBID https:ilsam.gov/EpR7deniri"qn/CA20220024/15 10 - 19 3/7/2023 2/25 10/18/22, 8:40 AM Rates Fringes SAM.gov MARBLE FINISHER ..................$ 35.90 14.11 TILE FINISHER ....................$ 30.47 12.52 TILE LAYER .......................$ 43.09 18.31 ---------------------------------------------------------------- BRCA0018-010 09/01/2021 Rates Fringes TERRAZZO FINISHER ................ $ 35.43 14.10 TERRAZZO WORKER/SETTER ........... $ 43.61 14.63 ---------------------------------------------------------------- CARP0213-001 07/01/2021 Rates Fringes CARPENTER (1) Carpenter, Cabinet Installer, Insulation Installer, Hardwood Floor Worker and acoustical installer ...................$ 51.60 16.28 (2) Millwright ..............$ 52.10 16.48 (3) Piledrivermen/Derrick Bargeman, Bridge or Dock Carpenter, Heavy Framer, Rock Bargeman or Scowman, Rockslinger, Shingler (Commercial) ........... ....$ 51.73 16.28 (4) Pneumatic Nailer, Power Stapler ...............$ 51.85 16.28 (5) Sawfiler...............$ 51.69 16.28 (6) Scaffold Builder ....... $ 42.80 16.28 (7) Table Power Saw Operator ....................$ 51.70 16.28 FOOTNOTE: Work of forming in the construction of open cut sewers or storm drains, on operations in which horizontal lagging is used in conjunction with steel H-Beams driven or placed in pre- drilled holes, for that portion of a lagged trench against which concrete is poured, namely, as a substitute for back forms (which work is performed by piledrivers): $0.13 per hour additional. ---------------------------------------------------------------- CARP0213-004 07/01/2021 Rates Fringes Drywall DRYWALL INSTALLER/LATHER .... $ 51.60 16.28 STOCKER/SCRAPPER ............ $ 22.16 8.62 ---------------------------------------------------------------- CARP0721-001 07/01/2021 Rates Fringes Modular Furniture Installer ...... $ 21.85 7.15 ---------------------------------------------------------------- ELECO011-002 12/27/2021 COMMUNICATIONS AND SYSTEMS WORK EXHIBIT "B" REBID Rates Fringes https://sam.gov/nitilr hitgn/CA20220024/15 j 0 - 20 3/7/2023 3/25 10/18122, 8:40 AM SAM.gov Communications System Installer ...................$ 43.87 3%+15.03 Technician ............. .....$ 33.30 3%+27.82 SCOPE OF WORK: Installation, testing, service and maintenance of systems utilizing the transmission and/or transference of voice, sound, vision and digital for commercial, educational, security and entertainment purposes for the following: TV monitoring and surveillance, background -foreground music, intercom and telephone interconnect, inventory control systems, microwave transmission, multi -media, multiplex, nurse call systems, radio page, school intercom and sound, burglar alarms, fire alarm (see last paragraph below) and low voltage master clock systems in commercial buildings. Communication Systems that transmit or receive information and/or control systems that are intrinsic to the above listed systems; inclusion or exclusion of terminations and testings of conductors determined by their function; excluding all other data systems or multiple systems which include control function or power supply; excluding installation of raceway systems, conduit systems, line voltage work, and energy management systems. Does not cover work performed at China Lake Naval Ordnance Test Station. Fire alarm work shall be performed at the current inside wireman total cost package. ELEC0441-001 12/27/2021 Rates Fringes CABLE SPLICER ....................$ 54.65 22.98 ELECTRICIAN ......................$ 52.25 22.91 ---------------------------------------------------------------- * ELEC0441-003 12/27/2021 COMMUNICATIONS & SYSTEMS WORK (excludes any work on Intelligent Transportation Systems or CCTV highway systems) Rates Fringes Communications System Installer ...................$ 41.68 15.90 Technician ..................$ 31.23 15.39 SCOPE OF WORK The work covered shall include the installation, testing, service and maintenance, of the following systems that utilize the transmission and/or transference of voice, sound, vision and digital for commercial, education, security and entertainment purposes for TV monitoring and surveillance, background foreground music, intercom and telephone interconnect, inventory control systems, microwave transmission, multi -media, multiplex, nurse call system, radio page, school intercom and sound, burglar alarms and low voltage master clock systems. A. Communication systems that transmit or receive information and/or control systems that are intrinsic to the above listed systems SCADA (Supervisory control/data acquisition PCM (Pulse code modulation) Inventory control systems Digital data systems Broadband & baseband and carriers EXHIBIT "B" REBID https://sam.gov/alg.cE)t5ohoWn/CA20220024/15 10 - 21 3/7/2023 4125 10/18/22, 8:40 AM SAM.gov Point of sale systems VSAT data systems Data communication systems RF and remote control systems Fiber optic data systems B. Sound and Voice Transmission/Transference Systems Background -Foreground Music Intercom and Telephone Interconnect Systems Sound and Musical Entertainment Systems Nurse Call Systems Radio Page Systems School Intercom and Sound Systems Burglar Alarm Systems Low -Voltage Master Clock Systems Multi-Media/Multiplex Systems Telephone Systems RF Systems and Antennas and Wave Guide C. *Fire Alarm Systems -installation, wire pulling and testing. D. Television and Video Systems Television Monitoring and Surveillance Systems Video Security Systems Video Entertainment Systems Video Educational Systems CATV and CCTV E. Security Systems, Perimeter Security Systems, Vibration Sensor Systems Sonar/Infrared Monitoring Equipment, Access Control Systems, Card Access Systems *Fire Alarm Systems 1. Fire Alarms -In Raceways: Wire and cable pulling in raceways performed at the current electrician wage rate and fringe benefits. 2. Fire Alarms -Open Wire Systems: installed by the Technician. ELEC0441-004 12/27/2021 Rates Fringes ELECTRICIAN (TRANSPORTATION SYSTEMS, TRAFFIC SIGNALS & STREET LIGHTING) Cable Splicer/Fiber Optic Splicer .....................$ 52.85 22.93 Electrician .................$ 52.25 22.91 Technician ..................$ 39.19 22.52 SCOPE OF WORK: Electrical work on public streets, freeways, toll -ways, etc, above or below ground. All work necessary for the installation, renovation, repair or removal of Intelligent Transportation Systems, Video Surveilance Systems (CCTV), Street Lighting and and Traffic Signal work or systems whether underground or on bridges. Includes dusk to dawn lighting installations and ramps for access to or egress from freeways, toll -ways, etc. Intelligent Transportation Systems shall include all systems and components to control, monitor, and communicate with pedestrian or vehicular traffic, included but not limited to: installation, modification, removal of all Fiber optic Video System, Fiber Optic Data Systems, Direct interconnect and Communications Systems, Microwave Data and Video Systems, Infrared and Sonic Detection Systems, Solar Power Systems, Highway Advisory Radio Systems, highway Weight and Motion Systems, etc. Any and all work required to install and maintain any specialized or newly developed systems. All cutting, fitting and bandaging of ducts, raceways, and conduits. EXHIBIT "B" REBID https:/lsam.gov/eqercCt5o"nn/CA20220024/15 1 0 - 22 3/7/2023 5/25 10/18122, 8:40 AM SAM.gov The cleaning, rodding and installation of ""fish and pull wires"". The excavation, setting, leveling and grouting of precast manholes, vaults, and pull boxes including ground rods or grounding systems, rock necessary for leveling and drainagae as well as pouring of a concrete envelope if needed. JOURNEYMAN TRANSPORTATION ELECTRICIAN shall perform all tasks necessary toinstall the complete transportation system. JOURNEYMAN TECHNICIAN duties shall consist of: Distribution of material at job site, manual excavation and backfill, installation of system conduits and raceways for electrical, telephone, cable television and comnmunication systems. Pulling, terminating and splicing of traffic signal and street lighting conductors and electrical systems including interconnect, dector loop, fiber optic cable and video/data. ---------------------------------------------------------------- ELEC1245-001 06/01/2022 Rates Fringes LINE CONSTRUCTION (1) Lineman; Cable splicer..$ 64.40 22.58 (2) Equipment specialist (operates crawler tractors, commercial motor vehicles, backhoes, trenchers, cranes (50 tons and below), overhead & underground distribution line equipment) .............$ 50.00 21.30 (3) Groundman...............$ 38.23 20.89 (4) Powderman......... ...... $ 51.87 18.79 HOLIDAYS: New Year's Day, M.L. King Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day and day after Thanksgiving, Christmas Day ---------------------------------------------------------------- ELEV0018-001 01/01/2022 Rates Fringes ELEVATOR MECHANIC ................ $ 61.34 36.885+a+b FOOTNOTE: a. PAID VACATION: Employer contributes 8% of regular hourly rate as vacation pay credit for employees with more than 5 years of service, and 6% for 6 months to 5 years of service. b. PAID HOLIDAYS: New Year's Day, Memorial Day, Independence Day, Labor Day, Veterans' Day, Thanksgiving Day, Friday after Thanksgiving, and Christmas Day. ---------------------------------------------------------------- ENGI0012-003 07/01/2020 Rates Fringes OPERATOR: Power Equipment (All Other Work) GROUP 1....................$ 48.25 27.20 GROUP 2....................$ 49.03 27.20 GROUP 3....................$ 49.32 27.20 EXHIBIT "B" REBID https://sam.gov/ dftuiMnn/CA20220024/15 10 — 23 3/7/2023 6/25 10/18/22, 8:40 AM SAM.gov GROUP 4....................$ 50.81 27.20 GROUP 5....................$ 48.96 25.25 GROUP 6........ ............ $ 51.03 27.20 GROUP 8....................$ 51.14 27.20 GROUP 9....................$ 49.29 25.25 GROUP 10....................$ 51.26 27.20 GROUP 11....................$ 49.41 25.25 GROUP 12....................$ 51.43 27.20 GROUP 13....................$ 51.53 27.20 GROUP 14....................$ 51.56 27.20 GROUP 15....................$ 51.64 27.20 GROUP 16....................$ 51.76 27.20 GROUP 17....................$ 51.93 27.20 GROUP 18.................... $ 52.03 27.20 GROUP 19....................$ 52.14 27.20 GROUP 20....................$ 52.26 27.20 GROUP 21....................$ 52.43 27.20 GROUP 22....................$ 52.53 27.20 GROUP 23....................$ 52.64 27.20 GROUP 24....................$ 52.76 27.20 GROUP 25....................$ 52.93 27.20 OPERATOR: Power Equipment (Cranes, Piledriving & Hoisting) GROUP 1....................$ 49.60 27.20 GROUP 2....................$ 50.38 27.20 GROUP 3.... ................ $ 50.67 27.20 GROUP 4....................$ 50.81 27.20 GROUP 5....................$ 51.03 27.20 GROUP 6....................$ 51.14 27.20 GROUP 7....................$ 51.26 27.20 GROUP 8....... ............. $ 51.43 27.20 GROUP 9....................$ 51.60 27.20 GROUP 10....................$ 52.60 27.20 GROUP 11....................$ 53.60 27.20 GROUP 12....................$ 54.60 27.20 GROUP 13.................... $ 55.60 27.20 OPERATOR: Power Equipment (Tunnel Work) GROUP 1....................$ 50.10 27.20 GROUP 2....................$ 50.88 27.20 GROUP 3....................$ 51.17 27.20 GROUP 4....................$ 51.31 27.20 GROUP 5....................$ 51.53 27.20 GROUP 6....................$ 51.64 27.20 GROUP 7....................$ 51.76 27.20 PREMIUM PAY: $3.75 per hour shall be paid on all Power Equipment Operator work on the followng Military Bases: China Lake Naval Reserve, Vandenberg AFB, Point Arguello, Seely Naval Base, Fort Irwin, Nebo Annex Marine Base, Marine Corp Logistics Base Yermo, Edwards AFB, 29 Palms Marine Base and Camp Pendleton Workers required to suit up and work in a hazardous material environment: $2.00 per hour additional. Combination mixer and compressor operator on gunite work shall be classified as a concrete mobile mixer operator. SEE ZONE DEFINITIONS AFTER CLASSIFICATIONS POWER EQUIPMENT OPERATORS CLASSIFICATIONS GROUP 1: Bargeman; Brakeman; Compressor operator; Ditch .A I IV11111181. 9001191 hftps://sam.go,"ft7o ftUifL'fln/CA20220024/15 10 - 24 3/7/2023 7/25 10/18/22, 8:40 AM SAM.gov Witch, with seat or similar type equipment; Elevator operator -inside; Engineer Oiler; Forklift operator (includes loed, lull or similar types under 5 tons; Generator operator; Generator, pump or compressor plant operator; Pump operator; Signalman; Switchman GROUP 2: Asphalt -rubber plant operator (nurse tank operator); Concrete mixer operator -skip type; Conveyor operator; Fireman; Forklift operator (includes loed, lull or similar types over 5 tons; Hydrostatic pump operator; oiler crusher (asphalt or concrete plant); Petromat laydown machine; PJU side dum jack; Screening and conveyor machine operator (or similar types); Skiploader (wheel type up to 3/4 yd. without attachment); Tar pot fireman; Temporary heating plant operator; Trenching machine oiler GROUP 3: Asphalt -rubber blend operator; Bobcat or similar type (Skid steer); Equipment greaser (rack); Ford Ferguson (with dragtype attachments); Helicopter radioman (ground); Stationary pipe wrapping and cleaning machine operator GROUP 4: Asphalt plant fireman; Backhoe operator (mini -max or similar type); Boring machine operator; Boxman or mixerman (asphalt or concrete); Chip spreading machine operator; Concrete cleaning decontamination machine operator; Concrete Pump Operator (small portable); Drilling machine operator, small auger types (Texoma super economatic or similar types - Hughes 100 or 200 or similar types - drilling depth of 30' maximum); Equipment greaser (grease truck); Guard rail post driver operator; Highline cableway signalman; Hydra-hammer-aero stomper; Micro Tunneling (above ground tunnel); Power concrete curing machine operator; Power concrete saw operator; Power -driven jumbo form setter operator; Power sweeper operator; Rock Wheel Saw/Trencher; Roller operator (compacting); Screed operator (asphalt or concrete); Trenching machine operator (up to 6 ft.); Vacuum or much truck GROUP 5: Equipment Greaser (Grease Truck/Multi Shift). GROUP 6: Articulating material hauler; Asphalt plant engineer; Batch plant operator; Bit sharpener; Concrete joint machine operator (canal and similar type); Concrete planer operator; Dandy digger; Deck engine operator; Derrickman (oilfield type); Drilling machine operator, bucket or auger types (Calweld 100 bucket or similar types - Watson 1000 auger or similar types - Texoma 330, 500 or 600 auger or similar types - drilling depth of 45' maximum); Drilling machine operator; Hydrographic seeder machine operator (straw, pulp or seed), Jackson track maintainer, or similar type; Kalamazoo Switch tamper, or similar type; Machine tool operator; Maginnis internal full slab vibrator, Mechanical berm, curb or gutter(concrete or asphalt); Mechanical finisher operator (concrete, Clary -Johnson -Bidwell or similar); Micro tunnel system (below ground); Pavement breaker operator (truck mounted); Road oil mixing machine operator; Roller operator (asphalt or finish), rubber -tired earth moving equipment (single engine, up to and including 25 yds. struck); Self-propelled tar pipelining machine operator; Skiploader operator (crawler and wheel type, over 3/4 yd. and up to and including 1-1/2 yds.); Slip form pump operator (power driven hydraulic lifting device for concrete forms); Tractor operator -bulldozer, tamper -scraper (single engine, up to 100 h.p. flywheel and similar types, up to and EXHIBIT "B" REBID https://sam.gov"1�tfjoh n/CA20220024/15 10 - 25 3/7/2023 8/25 10/18/22, 8:40 AM SAM.gov including D-5 and similar types); Tugger hoist operator (1 drum); Ultra high pressure waterjet cutting tool system operator; Vacuum blasting machine operator GROUP 8: Asphalt or concrete spreading operator (tamping or finishing); Asphalt paving machine operator (Barber Greene or similar type); Asphalt -rubber distribution operator; Backhoe operator (up to and including 3/4 yd.), small ford, Case or similar; Cast -in -place pipe laying machine operator; Combination mixer and compressor operator (gunite work); Compactor operator (self-propelled); Concrete mixer operator (paving); Crushing plant operator; Drill Doctor; Drilling machine operator, Bucket or auger types (Calweld 150 bucket or similar types - Watson 1500, 2000 2500 auger or similar types - Texoma 700, 800 auger or similar types - drilling depth of 60' maximum); Elevating grader operator; Grade checker; Gradall operator; Grouting machine operator; Heavy-duty repairman; Heavy equipment robotics operator; Kalamazoo balliste regulator or similar type; Kolman belt loader and similar type; Le Tourneau blob compactor or similar type; Loader operator (Athey, Euclid, Sierra and similar types); Mobark Chipper or similar; Ozzie padder or similar types; P.C. slot saw; Pneumatic concrete placing machine operator (Hackley-Presswell or similar type); Pumperete gun operator; Rock Drill or similar types; Rotary drill operator (excluding caisson type); Rubber -tired earth -moving equipment operator (single engine, caterpillar, Euclid, Athey Wagon and similar types with any and all attachments over 25 yds. up to and including 50 cu. yds. struck); Rubber -tired earth -moving equipment operator (multiple engine up to and including 25 yds. struck); Rubber -tired scraper operator (self -loading paddle wheel type -John Deere, 1040 and similar single unit); Self- propelled curb and gutter machine operator; Shuttle buggy; Skiploader operator (crawler and wheel type over 1-1/2 yds. up to and including 6-1/2 yds.); Soil remediation plant operator; Surface heaters and planer operator; Tractor compressor drill combination operator; Tractor operator (any type larger than D-5 - 100 flywheel h.p. and over, or similar -bulldozer, tamper, scraper and push tractor single engine); Tractor operator (boom attachments), Traveling pipe wrapping, cleaning and bendng machine operator; Trenching machine operator (over 6 ft. depth capacity, manufacturer's rating); trenching Machine with Road Miner attachment (over 6 ft depth capacity): Ultra high pressure waterjet cutting tool system mechanic; Water pull (compaction) operator GROUP 9: Heavy Duty Repairman GROUP 10: Drilling machine operator, Bucket or auger types (Calweld 200 B bucket or similar types -Watson 3000 or 5000 auger or similar types-Texoma 900 auger or similar types -drilling depth of 105' maximum); Dual drum mixer, dynamic compactor LDC350 (or similar types); Monorail locomotive operator (diesel, gas or electric); Motor patrol -blade operator (single engine); Multiple engine tractor operator (Euclid and similar type -except Quad 9 cat.); Rubber -tired earth -moving equipment operator (single engine, over 50 yds. struck); Pneumatic pipe ramming tool and similar types; Prestressed wrapping machine operator; Rubber -tired earth -moving equipment operator (single engine, over 50 yds. struck); Rubber tired earth moving equipment operator (multiple engine, Euclid, caterpillar and similar over 25 yds. and up to 50 yds. struck), Tower EXHIBIT "B" REBID https:Hsam.gov/@I"ffeprhttifn/CA20220024/15 10 - 26 3/7/2023 9/25 10/18/22, 8:40 AM SAM.gov crane repairman; Tractor loader operator (crawler and wheel type over 6-1/2 yds.); Woods mixer operator (and similar Pugmill equipment) GROUP 11: Heavy Duty Repairman - Welder Combination, Welder - Certified. GROUP 12: Auto grader operator; Automatic slip form operator; Drilling machine operator, bucket or auger types (Calweld, auger 200 CA or similar types - Watson, auger 6000 or similar types - Hughes Super Duty, auger 200 or similar types - drilling depth of 175' maximum); Hoe ram or similar with compressor; Mass excavator operator less tha 750 cu. yards; Mechanical finishing machine operator; Mobile form traveler operator; Motor patrol operator (multi -engine); Pipe mobile machine operator; Rubber -tired earth- moving equipment operator (multiple engine, Euclid, Caterpillar and similar type, over 50 cu. yds. struck); Rubber -tired self- loading scraper operator (paddle -wheel -auger type self -loading - two (2) or more units) GROUP 13: Rubber -tired earth -moving equipment operator operating equipment with push-pull system (single engine, up to and including 25 yds. struck) GROUP 14: Canal liner operator; Canal trimmer operator; Remote- control earth -moving equipment operator (operating a second piece of equipment: $1.00 per hour additional); Wheel excavator operator (over 750 cu. yds.) GROUP 15: Rubber -tired earth -moving equipment operator, operating equipment with push-pull system (single engine, Caterpillar, Euclid, Athey Wagon and similar types with any and all attachments over 25 yds. and up to and including 50 yds. struck); Rubber -tired earth -moving equipment operator, operating equipment with push-pull system (multiple engine -up to and including 25 yds. struck) GROUP 16: Rubber -tired earth -moving equipment operator, operating equipment with push-pull system (single engine, over 50 yds. struck); Rubber -tired earth -moving equipment operator, operating equipment with push-pull system (multiple engine, Euclid, Caterpillar and similar, over 25 yds. and up to 50 yds. struck) GROUP 17: Rubber -tired earth -moving equipment operator, operating equipment with push-pull system (multiple engine, Euclid, Caterpillar and similar, over 50 cu. yds. struck); Tandem tractor operator (operating crawler type tractors in tandem - Quad 9 and similar type) GROUP 18: Rubber -tired earth -moving equipment operator, operating in tandem (scrapers, belly dumps and similar types in any combination, excluding compaction units - single engine, up to and including 25 yds. struck) GROUP 19: Rotex concrete belt operator (or similar types); Rubber -tired earth -moving equipment operator, operating in tandem (scrapers, belly dumps and similar types in any combination, excluding compaction units - single engine, Caterpillar, Euclid, Athey Wagon and similar types with any and all attachments over 25 yds.and up to and including 50 cu. yds. struck); Rubber -tired earth -moving equipment operator, operating in tandem (scrapers, belly dumps and similar types in any combination, excluding compaction EXHIBIT "B" REBID https://sam.govto""Dif�"pn/CA20220024/15 10 - 27 3/7/2023 10/25 10/18/22, 8:40 AM SAM.gov units - multiple engine, up to and including 25 yds. struck) GROUP 20: Rubber -tired earth -moving equipment operator, operating in tandem (scrapers, belly dumps and similar types in any combination, excluding compaction units - single engine, over 50 yds. struck); Rubber -tired earth -moving equipment operator, operating in tandem (scrapers, belly dumps, and similar types in any combination, excluding compaction units - multiple engine, Euclid, Caterpillar and similar, over 25 yds. and up to 50 yds. struck) GROUP 21: Rubber -tired earth -moving equipment operator, operating in tandem (scrapers, belly dumps and similar types in any combination, excluding compaction units - multiple engine, Euclid, Caterpillar and similar type, over 50 cu. yds. struck) GROUP 22: Rubber -tired earth -moving equipment operator, operating equipment with the tandem push-pull system (single engine, up to and including 25 yds. struck) GROUP 23: Rubber -tired earth -moving equipment operator, operating equipment with the tandem push-pull system (single engine, Caterpillar, Euclid, Athey Wagon and similar types with any and all attachments over 25 yds. and up to and including 50 yds. struck); Rubber -tired earth -moving equipment operator, operating with the tandem push-pull system (multiple engine, up to and including 25 yds. struck) GROUP 24: Rubber -tired earth -moving equipment operator, operating equipment with the tandem push-pull system (single engine, over 50 yds. struck); Rubber -tired earth -moving equipment operator, operating equipment with the tandem push-pull system (multiple engine, Euclid, Caterpillar and similar, over 25 yds. and up to 50 yds. struck) GROUP 25: Concrete pump operator -truck mounted; Rubber -tired earth -moving equipment operator, operating equipment with the tandem push-pull system (multiple engine, Euclid, Caterpillar and similar type, over 50 cu. yds. struck) CRANES, PILEDRIVING AND HOISTING EQUIPMENT CLASSIFICATIONS GROUP 1: Engineer oiler; Fork lift operator (includes loed, lull or similar types) GROUP 2: Truck crane oiler GROUP 3: A -frame or winch truck operator; Ross carrier operator (jobsite) GROUP 4: Bridge -type unloader and turntable operator; Helicopter hoist operator GROUP 5: Hydraulic boom truck; Stinger crane (Austin -Western or similar type); Tugger hoist operator (1 drum) GROUP 6: Bridge crane operator; Cretor crane operator; Hoist operator (Chicago boom and similar type); Lift mobile operator; Lift slab machine operator (Vagtborg and similar types); Material hoist and/or manlift operator; Polar gantry crane operator; Self Climbing scaffold (or similar EXHIBIT "B" REBID hftps://sam.gov/ stcefjl h n/CA20220024/15 1 0 - 28 3/7/2023 11/25 10/18/22, 8:40 AM SAM.gov type); Shovel, backhoe, dragline, clamshell operator (over 3/4 yd. and up to 5 cu. yds. mrc); Tugger hoist operator GROUP 7: Pedestal crane operator; Shovel, backhoe, dragline, clamshell operator (over 5 cu. yds. mrc); Tower crane repair; Tugger hoist operator (3 drum) GROUP 8: Crane operator (up to and including 25 ton capacity); Crawler transporter operator; Derrick barge operator (up to and including 25 ton capacity); Hoist operator, stiff legs, Guy derrick or similar type (up to and including 25 ton capacity); Shovel, backhoe, dragline, clamshell operator (over 7 cu. yds., M.R.C.) GROUP 9: Crane operator (over 25 tons and up to and including 50 tons mrc); Derrick barge operator (over 25 tons up to and including 50 tons mrc); Highline cableway operator; Hoist operator, stiff legs, Guy derrick or similar type (over 25 tons up to and including 50 tons mrc); K-crane operator; Polar crane operator; Self erecting tower crane operator maximum lifting capacity ten tons GROUP 10: Crane operator (over 50 tons and up to and including 100 tons mrc); Derrick barge operator (over 50 tons up to and including 100 tons mrc); Hoist operator, stiff legs, Guy derrick or similar type (over 50 tons up to and including 100 tons mrc), Mobile tower crane operator (over 50 tons, up to and including 100 tons M.R.C.); Tower crane operator and tower gantry GROUP 11: Crane operator (over 100 tons and up to and including 200 tons mrc); Derrick barge operator (over 100 tons up to and including 200 tons mrc); Hoist operator, stiff legs, Guy derrick or similar type (over 100 tons up to and including 200 tons mrc); Mobile tower crane operator (over 100 tons up to and including 200 tons mrc) GROUP 12: Crane operator (over 200 tons up to and including 300 tons mrc); Derrick barge operator (over 200 tons up to and including 300 tons mrc); Hoist operator, stiff legs, Guy derrick or similar type (over 200 tons, up to and including 300 tons mrc); Mobile tower crane operator (over 200 tons, up to and including 300 tons mrc) GROUP 13: Crane operator (over 300 tons); Derrick barge operator (over 300 tons); Helicopter pilot; Hoist operator, stiff legs, Guy derrick or similar type (over 300 tons); Mobile tower crane operator (over 300 tons) TUNNEL CLASSIFICATIONS GROUP 1: Skiploader (wheel type up to 3/4 yd. without attachment) GROUP 2: Power -driven jumbo form setter operator GROUP 3: Dinkey locomotive or motorperson (up to and including 10 tons) GROUP 4: Bit sharpener; Equipment greaser (grease truck); Slip form pump operator (power -driven hydraulic lifting device for concrete forms); Tugger hoist operator (1 drum); Tunnel locomotive operator (over 10 and up to and including 30 tons) EXHIBIT "B" REBID hftps://sam.gov/e"dtbR5�"ICA20220024/15 10 - 29 3/7/2023 12/25 10118122, 8:40 AM SAM.gov GROUP 5: Backhoe operator (up to and including 3/4 yd.); Small Ford, Case or similar; Drill doctor; Grouting machine operator; Heading shield operator; Heavy-duty repairperson; Loader operator (Athey, Euclid, Sierra and similar types); Mucking machine operator (1/4 yd., rubber -tired, rail or track type); Pneumatic concrete placing machine operator (Hackley-Presswell or similar type); Pneumatic heading shield (tunnel); Pumperete gun operator; Tractor compressor drill combination operator; Tugger hoist operator (2 drum); Tunnel locomotive operator (over 30 tons) GROUP 6: Heavy Duty Repairman GROUP 7: Tunnel mole boring machine operator ENGINEERS ZONES $1.00 additional per hour for all of IMPERIAL County and the portions of KERN, RIVERSIDE & SAN BERNARDINO Counties as defined below: That area within the following Boundary: Begin in San Bernardino County, approximately 3 miles NE of the intersection of I-15 and the California State line at that point which is the NW corner of Section 1, T17N,m R14E, San Bernardino Meridian. Continue W in a straight line to that point which is the SW corner of the northwest quarter of Section 6, T27S, R42E, Mt. Diablo Meridian. Continue North to the intersection with the Inyo County Boundary at that point which is the NE corner of the western half of the northern quarter of Section 6, T25S, R42E, MDM. Continue W along the Inyo and San Bernardino County boundary until the intersection with Kern County, as that point which is the SE corner of Section 34, T24S, R40E, MDM. Continue W along the Inyo and Kern County boundary until the intersection with Tulare County, at that point which is the SW corner of the SE quarter of Section 32, T24S, R37E, MDM. Continue W along the Kern and Tulare County boundary, until that point which is the NW corner of T25S, R32E, MDM. Continue S following R32E lines to the NW corner of T31S, R32E, MDM. Continue W to the NW corner of T31S, R31E, MDM. Continue S to the SW corner of T32S, R31E, MDM. Continue W to SW corner of SE quarter of Section 34, T325, R30E, MDM. Continue S to SW corner of T11N, R17W, SBM. Continue E along south boundary of T11N, SBM to SW corner of T11N, R7W, SBM. Continue S to SW corner of T9N, R7W, SBM. Continue E along south boundary of T9N, SBM to SW corner of T9N, R1E, SBM. Continue S along west boundary of R1E, SMB to Riverside County line at the SW corner of T1S, R1E, SBM. Continue E along south boundary of T1s, SBM (Riverside County Line) to SW corner of T1S, R10E, SBM. Continue S along west boundary of R10E, SBM to Imperial County line at the SW corner of T8S, R10E, SBM. Continue W along Imperial and Riverside county line to NW corner of T9S, R9E, SBM. Continue S along the boundary between Imperial and San Diego Counties, along the west edge of R9E, SBM to the south boundary of Imperial County/California state line. Follow the California state line west to Arizona state line, then north to Nevada state line, then continuing NW back to start at the point which is the NW corner of Section 1, T17N, R14E, SBM $1.00 additional per hour for portions of SAN LUIS OBISPO, KERN, SANTA BARBARA & VENTURA as defined below: That area within the following Boundary: Begin approximately 5 miles north of the community of Cholame, on the Monterey County EXHIBIT "B" REBID https://sam.gov/ega OMUif Linn/CA20220024/15 10 - 30 3/7/2023 13/25 10118/22, 8:40 AM SAM.gov and San Luis Obispo County boundary at the NW corner of T25S, R16E, Mt. Diablo Meridian. Continue south along the west side of R16E to the SW corner of T30S, R16E, MDM. Continue E to SW corner of T30S, R17E, MDM. Continue 5 to SW corner of T31S, R17E, MDM. Continue E to SW corner of T31S, R18E, MDM. Continue S along West side of R18E, MDM as it crosses into San Bernardino Meridian numbering area and becomes R30W. Follow the west side of R30W, SBM to the SW corner of T9N, R30W, SBM. Continue E along the south edge of T9N, SBM to the Santa Barbara County and Ventura County boundary at that point whch is the SW corner of Section 34.T9N, R24W, SBM, continue S along the Ventura County line to that point which is the SW corner of the SE quarter of Section 32, T7N, R24W, SBM. Continue E along the south edge of T7N, SBM to the SE corner to T7N, R21W, SBM. Continue N along East side of R21W, SBM to Ventura County and Kern County boundary at the NE corner of TBN, R21W. Continue W along the Ventura County and Kern County boundary to the SE corner of T9N, R21W. Continue North along the East edge of R21W, SBM to the NE corner of T12N, R21W, SBM. Continue West along the north edge of T12N, SBM to the SE corner of T32S, R21E, MDM. [T12N SBM is a think strip between T11N SBM and T32S MDM]. Continue North along the East side of R21E, MDM to the Kings County and Kern County border at the NE corner of T25S, R21E, MDM, continue West along the Kings County and Kern County Boundary until the intersection of San Luis Obispo County. Continue west along the Kings County and San Luis Obispo County boundary until the intersection with Monterey County. Continue West along the Monterey County and San Luis Obispo County boundary to the beginning point at the NW corner of T25S, R16E, MDM. $2.00 additional per hour for INYO and MONO Counties and the Northern portion of SAN BERNARDINO County as defined below: That area within the following Boundary: Begin at the intersection of the northern boundary of Mono County and the California state line at the point which is the center of Section 17, T10N, R22E, Mt. Diablo Meridian. Continue S then SE along the entire western boundary of Mono County, until it reaches Inyo County at the point which is the NE corner of the Western half of the NW quarter of Section 2, TBS, R29E, MDM. Continue SSE along the entire western boundary of Inyo County, until the intersection with Kern County at the point which is the SW corner of the SE 1/4 of Section 32, T24S, R37E, MDM. Continue E along the Inyo and Kern County boundary until the intersection with San Bernardino County at that point which is the SE corner of section 34, T24S, R40E, MDM. Continue E along the Inyo and San Bernardino County boundary until the point which is the NE corner of the Western half of the NW quarter of Section 6, T25S, R42E, MDM. Continue S to that point which is the SW corner of the NW quarter of Section 6, T27S, R42E, MDM. Continue E in a straight line to the California and Nevada state border at the point which is the NW corner of Section 1, T17N, R14E, San Bernardino Meridian. Then continue NW along the state line to the starting point, which is the center of Section 18, T10N, R22E, MDM. REMAINING AREA NOT DEFINED ABOVE RECIEVES BASE RATE ENGI0012-004 08/01/2020 EXHIBIT 'B" REBID Rates Fringes hftps://sam.gov"Wceffl]ht! gn/CA20220024/15 10 - 31 3/7/2023 14/25 10/18/22, 8:40 AM OPERATOR: Power Equipment (DREDGING) SAM.gov (1) Leverman................$ 56.40 30.00 (2) Dredge dozer ............ $ 50.43 30.00 (3) Deckmate..... I .......... $ 50.32 30.00 (4) Winch operator (stern winch on dredge) ............ $ 49.77 30.00 (5) Fireman -Oiler, Deckhand, Bargeman, Leveehand...................$ 49.23 30.00 (6) Barge Mate ..............$ 49.84 30.00 IRONO433-006 07/01/2020 Rates Fringes IRONWORKER Fence Erector ...............$ 34.58 24.81 Ornamental, Reinforcing and Structural ..............$ 41.00 33.45 PREMIUM PAY: $6.00 additional per hour at the following locations: China Lake Naval Test Station, Chocolate Mountains Naval Reserve-Niland, Edwards AFB, Fort Irwin Military Station, Fort Irwin Training Center -Goldstone, San Clemente Island, San Nicholas Island, Susanville Federal Prison, 29 Palms - Marine Corps, U.S. Marine Base - Barstow, U.S. Naval Air Facility - Sealey, Vandenberg AFB $4.00 additional per hour at the following locations: Army Defense Language Institute - Monterey, Fallon Air Base, Naval Post Graduate School - Monterey, Yermo Marine Corps Logistics Center $2.00 additional per hour at the following locations: Port Hueneme, Port Mugu, U.S. Coast Guard Station - Two Rock ---------------------------------------------------------------- LAB00300-OO5 08/01/2022 Rates Fringes Asbestos Removal Laborer ......... $ 39.23 23,.28 SCOPE OF WORK: Includes site mobilization, initial site cleanup, site preparation, removal of asbestos -containing material and toxic waste, encapsulation, enclosure and disposal of asbestos- containing materials and toxic waste by hand or with equipment or machinery; scaffolding, fabrication of temporary wooden barriers and assembly of decontamination stations. ---------------------------------------------------------------- LAB00345-OO1 07/01/2022 Rates Fringes EXHIBIT "B" REBID LABORER (GUNITE) https:/lsam.gov/ Srdefjo n/CA20220024/15 10 - 32 3/7/2023 15125 10/18/22, 8:40 AM SAM.gov GROUP 1.....................$ 48.50 21.37 GROUP 2.....................$ 47.55 21.37 GROUP 3.....................$ 44.01 21.37 FOOTNOTE: GUNITE PREMIUM PAY: Workers working from a Bosn'n's Chair or suspended from a rope or cable shall receive 40 cents per hour above the foregoing applicable classification rates. Workers doing gunite and/or shotcrete work in a tunnel shall receive 35 cents per hour above the foregoing applicable classification rates, paid on a portal-to-portal basis. Any work performed on, in or above any smoke stack, silo, storage elevator or similar type of structure, when such structure is in excess of 75'-0"" above base level and which work must be performed in whole or in part more than 75'-0"" above base level, that work performed above the 75'-0"" level shall be compensated for at 35 cents per hour above the applicable classification wage rate. GUNITE LABORER CLASSIFICATIONS GROUP 1: Rodmen, Nozzlemen GROUP 2: Gunmen GROUP 3: Reboundmen LAB00652-001 07/01/2022 Rates Fringes LABORER (TUNNEL) GROUP 1.....................$ 45.68 23.30 GROUP 2.....................$ 46.00 23.30 GROUP 3.....................$ 46.46 23.30 GROUP 4.....................$ 47.15 23.30 LABORER GROUP 1.....................$ 36.39 21.04 GROUP 2.....................$ 36.94 21.04 GROUP 3.....................$ 37.49 21.04 GROUP 4.....................$ 39.04 21.04 GROUP 5.....................$ 39.39 21.04 LABORER CLASSIFICATIONS GROUP 1: Cleaning and handling of panel forms; Concrete screeding for rough strike -off; Concrete, water curing; Demolition laborer, the cleaning of brick if performed by a worker performing any other phase of demolition work, and the cleaning of lumber; Fire watcher, limber, brush loader, piler and debris handler; Flag person; Gas, oil and/or water pipeline laborer; Laborer, asphalt -rubber material loader; Laborer, general or construction; Laborer, general clean-up; Laborer, landscaping; Laborer, jetting; Laborer, temporary water and air lines; Material hose operator (walls, slabs, floors and decks); Plugging, filling of shee bolt holes; Dry packing of concrete; Railroad maintenance, repair track person and road beds; Streetcar and railroad construction track laborers; Rigging and signaling; Scaler; Slip form raiser; Tar and mortar; Tool crib or tool house laborer; Traffic control by any method; Window cleaner; Wire mesh pulling - all concrete pouring operations EXHIBIT 'B" REBID GROUP 2: Asphalt shoveler; Cement dumper (on 1 yd. or larger https://sam.gov/&"ejl3hf!iln/CA20220024/15 10 - 33 3/7/2023 16/25 10/18/22, 8:40 AM SAM.gov mixer and handling bulk cement); Cesspool digger and installer; Chucktender; Chute handler, pouring concrete, the handling of the chute from readymix trucks, such as walls, slabs, decks, floors, foundation, footings, curbs, gutters and sidewalks; Concrete curer, impervious membrane and form oiler; Cutting torch operator (demolition); Fine grader, highways and street paving, airport, runways and similar type heavy construction; Gas, oil and/or water pipeline wrapper - pot tender and form person; Guinea chaser; Headerboard person - asphalt; Laborer, packing rod steel and pans; Membrane vapor barrier installer; Power broom sweeper (small); Riprap stonepaver, placing stone or wet sacked concrete; Roto scraper and tiller; Sandblaster (pot tender); Septic tank digger and installer(lead); Tank scaler and cleaner; Tree climber, faller, chain saw operator, Pittsburgh chipper and similar type brush shredder; Underground laborer, including caisson bellower GROUP 3: Buggymobile person; Concrete cutting torch; Concrete pile cutter; Driller, jackhammer, 2-1/2 ft. drill steel or longer; Dri-pak-it machine; Gas, oil and/or water pipeline wrapper, 6-in. pipe and over, by any method, inside and out; High scaler (including drilling of same); Hydro seeder and similar type; Impact wrench multi -plate; Kettle person, pot person and workers applying asphalt, lay-kold, creosote, lime caustic and similar type materials (""applying"" means applying, dipping, brushing or handling of such materials for pipe wrapping and waterproofing); Operator of pneumatic, gas, electric tools, vibrating machine, pavement breaker, air blasting, come-alongs, and similar mechanical tools not separately classified herein; Pipelayer's backup person, coating, grouting, making of joints, sealing, caulking, diapering and including rubber gasket joints, pointing and any and all other services; Rock clinger; Rotary scarifier or multiple head concrete chipping scarifier; Steel headerboard and guideline setter; Tamper, Barko, Wacker and similar type; Trenching machine, hand -propelled GROUP 4: Asphalt raker, lute person, ironer, asphalt dump person, and asphalt spreader boxes (all types); Concrete core cutter (walls, floors or ceilings), grinder or sander; Concrete saw person, cutting walls or flat work, scoring old or new concrete; Cribber, shorer, lagging, sheeting and trench bracing, hand -guided lagging hammer; Head rock slinger; Laborer, asphalt- rubber distributor boot person; Laser beam in connection with laborers' work; Oversize concrete vibrator operator, 70 lbs. and over; Pipelayer performing all services in the laying and installation of pipe from the point of receiving pipe in the ditch until completion of operation, including any and all forms of tubular material, whether pipe, metallic or non-metallic, conduit and any other stationary type of tubular device used for the conveying of any substance or element, whether water, sewage, solid gas, air, or other product whatsoever and without regard to the nature of material from which the tubular material is fabricated; No -joint pipe and stripping of same; Prefabricated manhole installer; Sandblaster (nozzle person), water blasting, Porta Shot -Blast GROUP 5: Blaster powder, all work of loading holes, placing and blasting of all powder and explosives of whatever type, regardless of method used for such loading and placing; Driller: All power drills, excluding jackhammer, whether core, diamond, wagon, track, multiple unit, and any and all EXHIBIT "B" REBID hftps://sam.gov/@i4g-cot5tgho-gn/CA20220024/15 10 - 34 3/7/2023 17/25 10/18/22, 8:40 AM SAM.gov other types of mechanical drills without regard to the form of motive power; Toxic waste removal TUNNEL LABORER CLASSIFICATIONS GROUP 1: Batch plant laborer; Changehouse person; Dump person; Dump person (outside); Swamper (brake person and switch person on tunnel work); Tunnel materials handling person; Nipper; Pot tender, using mastic or other materials (for example, but not by way of limitation, shotcrete, etc.) GROUP 2: Chucktender, cabletender; Loading and unloading agitator cars; Vibrator person, jack hammer, pneumatic tools (except driller); Bull gang mucker, track person; Concrete crew, including rodder and spreader GROUP 3: Blaster, driller, powder person; Chemical grout jet person; Cherry picker person; Grout gun person; Grout mixer person; Grout pump person; Jackleg miner; Jumbo person; Kemper and other pneumatic concrete placer operator; Miner, tunnel (hand or machine); Nozzle person; Operating of troweling and/or grouting machines; Powder person (primer house); Primer person; Sandblaster; Shotcrete person; Steel form raiser and setter; Timber person, retimber person, wood or steel; Tunnel Concrete finisher GROUP 4: Diamond driller; Sandblaster; Shaft and raise work ---------------------------------------------------------------- LAB00652-003 07/01/2022 Rates Fringes Brick Tender .....................$ 37.32 21.45 ---------------------------------------------------------------- LAB01184-001 07/01/2022 Rates Fringes Laborers: (HORIZONTAL DIRECTIONAL DRILLING) (1) Drilling Crew Laborer...$ 40.69 18.25 (2) Vehicle Operator/Hauler.$ 40.86 18.25 (3) Horizontal Directional Drill Operator ..............$ 42.71 18.25 (4) Electronic Tracking Locator .....................$ 44.71 18.25 Laborers: (STRIPING/SLURRY SEAL) GROUP 1.....................$ 41.90 21.32 GROUP 2.....................$ 43.20 21.32 GROUP 3.....................$ 45.21 21.32 GROUP 4.....................$ 46.95 21.32 LABORERS - STRIPING CLASSIFICATIONS GROUP 1: Protective coating, pavement sealing, including repair and filling of cracks by any method on any surface in parking lots, game courts and playgrounds; carstops; operation of all related machinery and equipment; equipment repair technician GROUP 2: Traffic surface abrasive blaster; pot tender - removal of all traffic lines and markings by any method (sandblasting, waterblasting, grinding, etc.) and EXHIBIT "B" REBID https:/lsam.govt"d@Mirggon/CA20220024/15 10 - 35 3/7/2023 18/25 10/18/22, 8:40 AM SAM.gov preparation of surface for coatings. Traffic control person: controlling and directing traffic through both conventional and moving lane closures; operation of all related machinery and equipment GROUP 3: Traffic delineating device applicator: Layout and application of pavement markers, delineating signs, rumble and traffic bars, adhesives, guide markers, other traffic delineating devices including traffic control. This category includes all traffic related surface preparation (sandblasting, waterblasting, grinding) as part of the application process. Traffic protective delineating system installer: removes, relocates, installs, permanently affixed roadside and parking delineation barricades, fencing, cable anchor, guard rail, reference signs, monument markers; operation of all related machinery and equipment; power broom sweeper GROUP 4: Striper: layout and application of traffic stripes and markings; hot thermo plastic; tape traffic stripes and markings, including traffic control; operation of all related machinery and equipment ---------------------------------------------------------------- LAB01414-001 08/03/2022 Rates Fringes LABORER PLASTER CLEAN-UP LABORER .... $ 38.92 23.32 PLASTER TENDER .............. $ 41.47 23.32 Work on a swing stage scaffold: $1.00 per hour additional. ---------------------------------------------------------------- PAIN0036-O01 07/01/2020 Rates Fringes Painters: (Including Lead Abatement) (1) Repaint (excludes San Diego County) ...............$ 29.59 17.12 (2) All Other Work .......... $ 33.12 17.24 REPAINT of any previously painted structure. Exceptions: work involving the aerospace industry, breweries, commercial recreational facilities, hotels which operate commercial establishments as part of hotel service, and sports facilities. ---------------------------------------------------------------- PAIN0036-OO8 09/01/2022 Rates Fringes DRYWALL FINISHER/TAPER ........... $ 46.28 23.52 ---------------------------------------------------------------- PAIN0036-015 01/01/2020 Rates Fringes GLAZIER...... ....................$ 43.45 23.39 FOOTNOTE: Additional $1.25 per hour for work in a condor, from the third (3rd) floor and up Additional $1.25 per EXHIBIT 'B" REBID https://sam.gov""gilh n/CA20220024/15 10 - 36 3/7/2023 19125 10/18/22, 8:40 AM SAM.gov hour for work on the outside of the building from a swing stage or any suspended contrivance, from the ground up ---------------------------------------------------------------- * PAIN1247-002 08/01/2022 Rates Fringes SOFT FLOOR LAYER .................$ 39.95 15.28 ---------------------------------------------------------------- PLAS0200-009 08/03/2022 Rates Fringes PLASTERER .... ....................$ 47.37 19.64 ---------------------------------------------------------------- PLAS0500-002 07/01/2020 Rates Fringes CEMENT MASON/CONCRETE FINISHER ... $ 38.50 25.91 ---------------------------------------------------------------- PLUM0016-001 09/01/2022 Rates Fringes PLUMBER/PIPEFITTER Work ONLY on new additions and remodeling of bars, restaurant, stores and commercial buildings not to exceed 5,000 sq. ft. of floor space .................$ 53.51 25.28 Work ONLY on strip malls, light commercial, tenant improvement and remodel work ........................$ 40.95 23.61 All other work except work on new additions and remodeling of bars, restaurant, stores and commercial buildings not to exceed 5,000 sq. ft. of floor space and work on strip malls, light commercial, tenant improvement and remodel work ........................$ 55.18 26.26 PLUM0345-001 09/01/2022 Rates Fringes PLUMBER Landscape/Irrigation Fitter.$ 38.20 25.65 Sewer & Storm Drain Work .... $ 42.29 23.03 ---------------------------------------------------------------- ROOF0036-002 08/01/2022 Rates Fringes ROOFER ...........................$ 43.47 19.52 FOOTNOTE: Pitch premium: Work on which employees are exposed to pitch fumes or required to handle pitch, pitch base or EXHIBIT "B" REBID https://sam.gov/0119-�tiglr h n/CA20220024/15 10 - 37 3/7/2023 20/25 10/18/22, 8:40 AM SAM.gov pitch impregnated products, or any material containing coal tar pitch, the entire roofing crew shall receive $1.75 per hour ""pitch premium"" pay. ---------------------------------------------------------------- SFCA0669-008 04/01/2022 DOES NOT INCLUDE SAN CLEMENTE ISLAND, THE CITY OF SANTA ANA, AND THAT PART OF ORANGE COUNTY WITHIN 25 MILES OF THE CITY LIMITS OF LOS ANGELES: Rates Fringes SPRINKLER FITTER .................$ 43.25 26.77 ---------------------------------------------------------------- SFCA0709-003 01/01/2021 SAN CLEMENTE ISLAND, THE CITY OF SANTA ANA, AND THAT PART OF ORANGE COUNTY WITHIN 25 MILES BEYOND THE CITY LIMITS OF LOS ANGELES: Rates Fringes SPRINKLER FITTER (Fire) .......... $ 48.71 29.15 ---------------------------------------------------------------- SHEE0105-003 01/01/2022 LOS ANGELES (South of a straight line drawn between Gorman and Big Pines)and Catalina Island, INYO, KERN (Northeast part, East of Hwy 395), MONO ORANGE, RIVERSIDE, AND SAN BERNARDINO COUNTIES Rates Fringes SHEET METAL WORKER (1) Commercial - New Construction and Remodel work ........................$ 50.23 29.60 (2) Industrial work including air pollution control systems, noise abatement, hand rails, guard rails, excluding aritechtural sheet metal work, excluding A-C, heating, ventilating systems for human comfort ... $ 48.28 29.46 ---------------------------------------------------------------- TEAM0011-002 07/01/2020 Rates Fringes TRUCK DRIVER GROUP 1 ..... .. ...........$ 32.59 30.59 GROUP 2 ....................$ 32.74 30.59 GROUP 3 ....................$ 32.87 30.59 GROUP 4 ....................$ 33.06 30.59 GROUP 5 ....................$ 33.09 30.59 GROUP 6 ........... ......... $ 33.12 30.59 GROUP 7 ....................$ 33.37 30.59 GROUP 8 ....................$ 33.62 30.59 GROUP 9 ....................$ 33.82 30.59 GROUP 10 ....................$ 34.12 30.59 EXHIBIT "B" REBID hftps://sam.gov"17,tfjahtjgn/CA20220024/15 10 — 38 3/7/2023 21/25 10/18/22, 8:40 AM SAM.gov GROUP 11....................$ 34.62 30.59 GROUP 12....................$ 35.05 30.59 WORK ON ALL MILITARY BASES: PREMIUM PAY: $3.00 per hour additional. [29 palms Marine Base, Camp Roberts, China Lake, Edwards AFB, E1 Centro Naval Facility, Fort Irwin, Marine Corps Logistics Base at Nebo & Yermo, Mountain Warfare Training Center, Bridgeport, Point Arguello, Point Conception, Vandenberg AFB] TRUCK DRIVERS CLASSIFICATIONS GROUP 1: Truck driver GROUP 2: Driver of vehicle or combination of vehicles - 2 axles; Traffic control pilot car excluding moving heavy equipment permit load; Truck mounted broom GROUP 3: Driver of vehicle or combination of vehicles - 3 axles; Boot person; Cement mason distribution truck; Fuel truck driver; Water truck - 2 axle; Dump truck, less than 16 yds. water level; Erosion control driver GROUP 4: Driver of transit mix truck, under 3 yds.; Dumperete truck, less than 6-1/2 yds. water level GROUP 5: Water truck, 3 or more axles; Truck greaser and tire person ($0.50 additional for tire person); Pipeline and utility working truck driver, including winch truck and plastic fusion, limited to pipeline and utility work; Slurry truck driver GROUP 6: Transit mix truck, 3 yds. or more; Dumperete truck, 6-1/2 yds. water level and over; Vehicle or combination of vehicles - 4 or more axles; Oil spreader truck; Dump truck, 16 yds. to 25 yds. water level GROUP 7: A Frame, Swedish crane or similar; Forklift driver; Ross carrier driver GROUP 8: Dump truck, 25 yds. to 49 yds. water level; Truck repair person; Water pull - single engine; Welder GROUP 9: Truck repair person/welder; Low bed driver, 9 axles or over GROUP 10: Dump truck - 50 yds. or more water level; Water pull - single engine with attachment GROUP 11: Water pull - twin engine; Water pull - twin engine with attachments; Winch truck driver - $1.25 additional when operating winch or similar special attachments GROUP 12: Boom Truck 17K and above WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. EXHIBIT "B" REBID https://sam.gov"174efjtgh t gn/CA20220024/15 10 - 39 3/7/2023 22/25 10/18/22, 8:40 AM SAM.gov Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis -Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the EO, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health -related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health -related needs, including preventive care; or for reasons resulting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at https://www.dol.gov/agencies/whd/government-contracts. Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of ""identifiers"" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than ""SU"" or ""UAW"' denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUM0198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, 2014. Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the ""SU"" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate includes all rates reported in the survey, it may include both union and EXHIBIT "B" REBID https://sam.gov/ lg-c@Mh;64n/CA20220024/15 10 — 40 3/7/2023 23/25 10/18/22, 8:40 AM SAM.gov non -union rates. Example: SULA2012-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Classification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier. A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based. WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour National Office because National Office has responsibility for the Davis -Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: EXHIBIT "B" REBID hftps:Hsam.gov/eoyd@tyq�fln/CA20220024/15 10 — 41 3/7/2023 24/25 10118/22, 8:40 AM SAM.gov Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. END OF GENERAL DECISIO" EXHIBIT "B" REBID https:Hsam.gov"ll� 513hein/CA20220024/15 10 - 42 3/7/2023 25/25 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET EXHIBIT "C" FHWA-1273 City Council 10 — 43 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual REQUIRED CONTRACT PROVISIONS FEDERAL -AID CONSTRUCTION CONTRACTS Exhibit 12-G Required Federal -Aid Contract Language FHWA-1273 -- Revised July 5, 2022 Page 9 of 28 August 2022 City Council 10 — 44 3/7/2023 Local Assistance Procedures Manual EXHIBIT "C" Exhibit 12-G I. General II. Nondiscrimination III. Non -segregated Facilities IV. Davis -Bacon and Related Act Provisions V. Contract Work Hours and Safety Standards Act Provisions VI. Subletting or Assigning the Contract VII. Safety: Accident Prevention Vill. False Statements Concerning Highway Projects IX. Implementation of Clean Air Act and Federal Water Pollution Control Act X. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion XI. Certification Regarding Use of Contract Funds for Lobbying XII. Use of United States -Flag Vessels: ATTACHMENTS A. Employment and Materials Preference for Appalachian Development Highway System or Appalachian Local Access Road Contracts (included in Appalachian contracts only) L GENERAL 1. Form FHWA-1273 must be physically incorporated in each construction contract funded under title 23, United States Code, as required in 23 CFR 633.102(b) (excluding emergency contracts solely intended for debris removal). The contractor (or subcontractor) must insert this form in each subcontract and further require its inclusion in all lower tier subcontracts (excluding purchase orders, rental agreements and other agreements for supplies or services). 23 CFR633.102(e). The applicable requirements of Form FHWA-1273 are incorporated by reference for work done under any purchase order, rental agreement or agreement for other services. The prime contractor shall be responsible for compliance by any subcontractor, lower -tier subcontractor or service provider. 23 CFR 633.102(e). Form FHWA-1273 must be included in all Federal -aid design - build contracts, in all subcontracts and in lower tier subcontracts (excluding subcontracts for design services, purchase orders, rental agreements and other agreements for supplies or services) in accordance with 23 CFR 633.102. The design - builder shall be responsible for compliance by any subcontractor, lower -tier subcontractor or service provider. Contracting agencies may reference Form FHWA-1273 in solicitation -for -bids or request -for -proposals documents, however, the Form FHWA-1273 must be physically incorporated (not referenced) in all contracts, subcontracts and lower -tier subcontracts (excluding purchase orders, rental agreements anc other agreements for supplies or services related to a construction contract). 23 CFR 633.102(b). 2. Subject to the applicability criteria noted in the following sections, these contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superintendence and to all work performed on the contract by piecework, station work, or by subcontract. 23 CFR 633.102(d). Required Federal -Aid Contract Language 3. A breach of any of the stipulations contained in these Required Contract Provisions may be sufficient grounds for withholding of progress payments, withholding of final payment, termination of the contract, suspension / debarment or any other action determined to be appropriate by the contracting agency and FHWA. 4. Selection of Labor: During the performance of this contract, the contractor shall not use convict labor for any purpose within the limits of a construction project on a Federal -aid highway unless it is labor performed by convicts who are on parole, supervised release, or probation. 23 U.S.C. 114(b).The term Federal -aid highway does not include roadways functionally classified as local roads or rural minor collectors. 23 U.S.C. 101(a). II. NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part 230, Subpart A, Appendix A; EO 11246) The provisions of this section related to 23 CFR Part 230, Subpart A, Appendix A are applicable to all Federal -aid construction contracts and to all related construction subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are not applicable to material supply, engineering, or architectural service contracts. In addition, the contractor and all subcontractors must comply with the following policies: Executive Order 11246, 41 CFR Part 60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633. The contractor and all subcontractors must comply with: the requirements of the Equal Opportunity Clause in 41 CFR 60- 1.4(b) and, for all construction contracts exceeding $10,000, the Standard Federal Equal Employment Opportunity Construction Contract Specifications in 41 CFR 60-4.3. Note: The U.S. Department of Labor has exclusive authority to determine compliance with Executive Order 11246 and the policies of the Secretary of Labor including 41 CFR Part 60, and 29 CFR Parts 1625-1627. The contracting agency and the FHWA have the authority and the responsibility to ensure compliance with 23 U.S.C. 140, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), and Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.), and related regulations including 49 CFR Parts 21, 26, and 27; and 23 CFR Parts 200, 230, and 633. The following provision is adopted from 23 CFR Part 230, Subpart A, Appendix A, with appropriate revisions to conform to the U.S. Department of Labor (US DOL) and FHWA requirements. Page 10 of 28 August 2022 City Council 10 — 45 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual Exhibit 12-G Required Federal -Aid Contract Language 1. Equal Employment Opportunity: Equal Employment Opportunity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (see 28 CFR Part 35, 29 CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR Part 60 and 49 CFR Part 27) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140, shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The provisions of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set forth under 28 CFR Part 35 and 29 CFR Part 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO: a. The contractor will work with the contracting agency and the Federal Government to ensure that it has made every good faith effort to provide equal opportunity with respect to all of its terms and conditions of employment and in their review of activities under the contract. 23 CFR 230.409 (g)(4) & (5). b. The contractor will accept as its operating policy the following statement: "It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, sexual orientation, gender identity, color, national origin, age or disability. Such action shall include: 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, pre - apprenticeship, and/or on-the-job training." 2. EEO Officer: The contractor will designate and make known to the contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active EEO program and who must be assigned adequate authority and responsibility to do so. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action or are substantially involved in such action, will be made fully cognizant of and will implement the contractor's EEO policy and contractual responsibilities to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum: a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer or other knowledgeable company official. b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minorities and women. d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees. e. The contractor's EEO policy and the procedures to implement such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means. 4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed in publications having a large circulation among minorities and women in the area from which the project work force would normally be derived. a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minorities and women. To meet this requirement, the contractor will identify sources of potential minority group employees and establish with such identified sources procedures whereby minority and women applicants may be referred to the contractor for employment consideration. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, the contractor is expected to observe the provisions of that agreement to the extent that the system meets the contractor's compliance with EEO contract provisions. Where implementation of such an agreement has the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Federal nondiscrimination provisions. c. The contractor will encourage its present employees to refer minorities and women as applicants for employment. Information and procedures with regard to referring such applicants will be discussed with employees. 5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age or disability. The following procedures shall be followed: a. The contractor will conduct periodic inspections of project sites to ensure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discriminatory wage practices. c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimination. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons. d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with its obligations under this contract, will attempt to resolve such complaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of their avenues of appeal. Page 11 of 28 August 2022 City Council 10 — 46 3/7/2023 Local Assistance Procedures Manual EXHIBIT "C" Exhibit 12-G 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minorities and women who are applicants for employment or current employees. Such efforts should be aimed at developing full journey level status employees in the type of trade or job classification involved. b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs (i.e., apprenticeship and on-the- job training programs for the geographical area of contract performance). In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision. The contracting agency may reserve training positions for persons who receive welfare assistance in accordance with 23 U.S.C. 140(a). c. The contractor will advise employees and applicants for employment of available training programs and entrance requirements for each. d. The contractor will periodically review the training and promotion potential of employees who are minorities and women and will encourage eligible employees to apply for such training and promotion. 7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use good faith efforts to obtain the cooperation of such unions to increase opportunities for minorities and women. 23 CFR 230.409. Actions by the contractor, either directly or through a contractor's association acting as agent, will include the procedures set forth below: a. The contractor will use good faith efforts to develop, in cooperation with the unions, joint training programs aimed toward qualifying more minorities and women for membership in the unions and increasing the skills of minorities and women so that they may qualify for higher paying employment. b. The contractor will use good faith efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability. c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the contracting agency and shall set forth what efforts have been made to obtain such information. d. In the event the union is unable to provide the contractor with a reasonable flow of referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability; making full efforts to obtain qualified and/or qualifiable minorities and women. The failure of a union to provide sufficient referrals (even though it is obligated to provide exclusive referrals under the terms of a collective bargaining agreement) does not relieve the contractor from the requirements of this paragraph. In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the contracting agency. Required Federal -Aid Contract Language 8. Reasonable Accommodation for Applicants / Employees with Disabilities: The contractor must be familiar with the requirements for and comply with the Americans with Disabilities Act and all rules and regulations established thereunder. Employers must provide reasonable accommodation in all employment activities unless to do so would cause an undue hardship. 9. Selection of subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, sexual orientation, gender identity, national origin, age, or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall take all necessary and reasonable steps to ensure nondiscrimination in the administration of this contract. a. The contractor shall notify all potential subcontractors, suppliers, and lessors of their EEO obligations under this contract. b. The contractor will use good faith efforts to ensure subcontractor compliance with their EEO obligations. 10. Assurance Required: a. The requirements of 49 CFR Part 26 and the State DOT's FHWA-approved Disadvantaged Business Enterprise (DBE) program are incorporated by reference. b. The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT -assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to: (1) Withholding monthly progress payments; (2) Assessing sanctions; (3) Liquidated damages; and/or (4) Disqualifying the contractor from future bidding as non - responsible. c. The Title VI and nondiscrimination provisions of U.S. DOT Order 1050.2A at Appendixes A and E are incorporated by reference. 49 CFR Part 21. 11. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following the date of the final payment to the contractor for all contract work and shall be available at reasonable times and places for inspection by authorized representatives of the contracting agency and the FHWA. a. The records kept by the contractor shall document the following (1) The number and work hours of minority and non -minority group members and women employed in each work classification on the project; (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; and (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minorities and women. Page 12 of 28 August 2022 City Council 10 — 47 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual b. The contractors and subcontractors will submit an annual report to the contracting agency each July for the duration of the project indicating the number of minority, women, and non -minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. The staffing data should represent the project work force on board in all or any part of the last payroll period preceding the end of July. If on-the-job training is being required by special provision, the contractor will be required to collect and report training data. The employment data should reflect the work force on board during all or any part of the last payroll period preceding the end of July. III. NONSEGREGATED FACILITIES This provision is applicable to all Federal -aid construction contracts and to all related construction subcontracts of more than $10,000. 41 CFR 60-1.5. As prescribed by 41 CFR 60-1.8, the contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The contractor's obligation extends further to ensure that its employees are not assigned to perform their services at any location under the contractor's control where the facilities are segregated. The term "facilities" includes waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, washrooms, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. The contractor shall provide separate or single -user restrooms and necessary dressing or sleeping areas to assure privacy between sexes. IV. DAVIS-BACON AND RELATED ACT PROVISIONS This section is applicable to all Federal -aid construction projects exceeding $2,000 and to all related subcontracts and lower -tier subcontracts (regardless of subcontract size), in accordance with 29 CFR 5.5. The requirements apply to all projects located within the right-of-way of a roadway that is functionally classified as Federal - aid highway. 23 U.S.C. 113. This excludes roadways functionally classified as local roads or rural minor collectors, which are exempt. 23 U.S.C. 101. Where applicable law requires that projects be treated as a project on a Federal -aid highway, the provisions of this subpart will apply regardless of the location of the project. Examples include: Surface Transportation Block Grant Program projects funded under 23 U.S.C. 133 [excluding recreational trails projects], the Nationally Significant Freight and Highway Projects funded under 23 U.S.C. 117, and National Highway Freight Program projects funded under 23 U.S.C. 167. The following provisions are from the U.S. Department of Labor regulations in 29 CFR 5.5 "Contract provisions and related matters" with minor revisions to conform to the FHWA-1273 format and FHWA program requirements. Exhibit 12-G Required Federal -Aid Contract Language 1. Minimum wages (29 CFR 5.5) a. All laborers and mechanics employed or working upon the site of the work, will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.d. of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph 1.b. of this section) and the Davis -Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (1) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (i) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (ii) The classification is utilized in the area by the construction industry; and (iii) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (2) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. Page 13 of 28 August 2022 City Council 10 — 48 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual (3) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (4) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs 1.b.(2) or 1.b.(3) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. c. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. d. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. 2. Withholding (29 CFR 5.5) The contracting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor under this contract, or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to Davis - Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the contracting agency may, after written notice to the contractor, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. Exhibit 12-G Required Federal -Aid Contract Language 3. Payrolls and basic records (29 CFR 5.5) a. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (1) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the contracting agency. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the contracting agency for transmission to the State DOT, the FHWA or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the contracting agency. (2) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (i) That the payroll for the payroll period contains the information required to be provided under 29 CFR 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR 5.5(a)(3)(i), and that such information is correct and complete; (ii) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3; Page 14 of 28 August 2022 City Council 10 — 49 3/7/2023 Local Assistance Procedures Manual EXHIBIT "C" Exhibit 12-G (iii) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (3) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph 3.b.(2) of this section. (4) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231. c. The contractor or subcontractor shall make the records required under paragraph 3.a. of this section available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the FHWA may, after written notice to the contractor, the contracting agency or the State DOT, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. 4. Apprentices and trainees (29 CFR 5.5) a. Apprentices (programs of the USDOL). Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Required Federal -Aid Contract Language Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. b. Trainees (programs of the USDOL). Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c. Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. Page 15 of 28 August2022 City Council 10 — 50 3/7/2023 Local Assistance Procedures Manual EXHIBIT "C" Exhibit 12-G d. Apprentices and Trainees (programs of the U.S. DOT). Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal -aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. 23 CFR 230.111(e)(2). The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program. 6. Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract as provided in 29 CFR 5.5. 6. Subcontracts. The contractor or subcontractor shall insert Form FHWA-1273 in any subcontracts and also require the subcontractors to include Form FHWA-1273 in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5. 7. Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. 8. Compliance with Davis -Bacon and Related Act requirements. All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract as provided in 29 CFR 5.5. 9. Disputes concerning labor standards. As provided in 29 CFR 5.5, disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. 10. Certification of eligibility (29 CFR 5.5) a. By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). c. The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Required Federal -Aid Contract Language V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT Pursuant to 29 CFR 5.5(b), the following clauses apply to any Federal -aid construction contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this paragraph, the terms laborers and mechanics include watchmen and guards. 1. Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 29 CFR 5.5. 2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph 1 of this section, the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph 1 of this section, in the sum currently provided in 29 CFR 5.5(b)(2)* for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph 1 of this section. 29 CFR 5.5. * $27 as of January 23, 2019 (See 84 FIR 213-01, 218) as may be adjusted annually by the Department of Labor; pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990). 3. Withholding for unpaid wages and liquidated damages. The FHWA or the contacting agency shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph 2 of this section. 29 CFR 5.5. 4. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs 1 through 4 of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1 through 4 of this section. 29 CFR 5.5. Page 16 of 28 August 2022 City Council 10 — 51 3/7/2023 Local Assistance Procedures Manual EXHIBIT "C" Exhibit 12-G VI. SUBLETTING OR ASSIGNING THE CONTRACT This provision is applicable to all Federal -aid construction contracts on the National Highway System pursuant to 23 CFR 635.116. 1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the contracting agency. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635.116). a. The tern "perform work with its own organization" in paragraph 1 of Section VI refers to workers employed or leased by the prime contractor, and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of a subcontractor or lower tier subcontractor, agents of the prime contractor, or any other assignees. The term may include payments for the costs of hiring leased employees from an employee leasing firm meeting all relevant Federal and State regulatory requirements. Leased employees may only be included it this term if the prime contractor meets all of the following conditions: (based on longstanding interpretation) (1) the prime contractor maintains control over the supervision of the day-to-day activities of the leased employees; (2) the prime contractor remains responsible for the quality of the work of the leased employees; (3) the prime contractor retains all power to accept or exclude individual employees from work on the project; and (4) the prime contractor remains ultimately responsible for the payment of predetermined minimum wages, the submission of payrolls, statements of compliance and all other Federal regulatory requirements. b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid or propose on the contract as a whole and in general are to be limited to minor components of the overall contract. 23 CFR 635.102. 2. Pursuant to 23 CFR 635.116(a), the contract amount upon which the requirements set forth in paragraph (1) of Section VI is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3. Pursuant to 23 CFR 635.116(c), the contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the contracting officer determines is necessary to assure the performance of the contract. 4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the contracting agency has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. (based on long-standing interpretation of 23 CFR 635.116). Required Federal -Aid Contract Language 5. The 30-percent self -performance requirement of paragraph (1) is not applicable to design -build contracts; however, contracting agencies may establish their own self -performance requirements. 23 CFR 635.116(d). VII. SAFETY: ACCIDENT PREVENTION This provision is applicable to all Federal -aid construction contracts and to all related subcontracts. 1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR Part 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 23 CFR 635.108. 2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR Part 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). 29 CFR 1926.10. 3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3704). Vill. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS This provision is applicable to all Federal -aid construction contracts and to all related subcontracts. In order to assure high quality and durable construction in conformity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal -aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, Form FHWA-1022 shall be posted on each Federal -aid highway project (23 CFR Part 635) in one or more places where it is readily available to all persons concerned with the project: 18 U.S.C. 1020 reads as follows: 'Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false statement, false representation, or false report as to the character, quality, quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Page 17 of 28 August 2022 City Council 10 — 52 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual Whoever knowingly makes any false statement, false representation, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connectior with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representation as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal -aid Roads Act approved July 11, 1916, (39 Stat. 355), as amended and supplemented; Shall be fined under this title or imprisoned not more than 5 years or both." IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT (42 U.S.C. 7606; 2 CFR 200.88; EO 11738) This provision is applicable to all Federal -aid construction contracts in excess of $150,000 and to all related subcontracts. 48 CFR 2.101; 2 CFR 200.326. By submission of this bid/proposal or the execution of this contract or subcontract, as appropriate, the bidder, proposer, Federal -aid construction contractor, subcontractor, supplier, or vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251-1387). Violations must be reported to the Federal Highway Administration and the Regional Office of the Environmental Protection Agency. 2 CFR Part 200, Appendix II. The contractor agrees to include or cause to be included the requirements of this Section in every subcontract, and further agrees to take such action as the contracting agency may direct as a means of enforcing such requirements. 2 CFR 200.326. X. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION This provision is applicable to all Federal -aid construction contracts, design -build contracts, subcontracts, lower -tier subcontracts, purchase orders, lease agreements, consultant contracts or any other covered transaction requiring FHWA approval or that is estimated to cost $25,000 or more — as defined in 2 CFR Parts 180 and 1200. 2 CFR 180.220 and 1200.220. 1. Instructions for Certification — First Tier Participants: a. By signing and submitting this proposal, the prospective first tier participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective first tier participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective first tier participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. 2 CFR 180.320. Exhibit 12-G Required Federal -Aid Contract Language c. The certification in this clause is a material representation of fact upon which reliance was placed when the contracting agency determined to enter into this transaction. If it is later determined that the prospective participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the contracting agency may terminate this transaction for cause of default. 2 CFR 180.325. d. The prospective first tier participant shall provide immediate written notice to the contracting agency to whom this proposal is submitted if any time the prospective first tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 2 CFR 180.345 and 180.350. e. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900-180.1020, and 1200. "First Tier Covered Transactions' refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). "Lower Tier Covered Transactions" refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). "First Tier Participant" refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). "Lower Tier Participant" refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). f. The prospective first tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. 2 CFR 180.330. g. The prospective first tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered Transactions," provided by the department or contracting agency, entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 180.300. h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. 2 CFR 180.300; 180.320, and 180.325. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. 2 CFR 180.335. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (htt.:s://www.sam.c:ovi). 2 CFR 180.300, 180.320, and 180.325. i. Nothing contained in the foregoing shall be construed to require the establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of the prospective participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. Page 18 of 28 August 2022 City Council 10 — 53 3/7/2023 Local Assistance Procedures Manual EXHIBIT "C" Exhibit 12-G j. Except for transactions authorized under paragraph (f) of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. 2 CFR 180.325. 2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion — First Tier Participants: a. The prospective first tier participant certifies to the best of its knowledge and belief, that it and its principals: (1) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.335;. (2) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property, 2 CFR 180.800; (3) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (a)(2) of this certification, 2 CFR 180.700 and 180.800; and (4) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2 CFR 180.335(d). (5) Are not a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and (6) Are not a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability (USDOT Order 4200.6 implementing appropriations act requirements). b. Where the prospective participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. 2 CFR 180.335 and 180.340. 3. Instructions for Certification - Lower Tier Participants: (Applicable to all subcontracts, purchase orders, and other lower tier transactions requiring prior FHWA approval or estimated to cost $25,000 or more - 2 CFR Parts 180 and 1200). 2 CFR 180.220 and 1200.220. a. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below. Required Federal -Aid Contract Language b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. c. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. 2 CFR 180.365. d. The terms "covered transaction," "debarred," "suspended," "ineligible," "participant," "person," "principal," and "voluntarily excluded," as used in this clause, are defined in 2 CFR Parts 180, Subpart I, 180.900 — 180.1020, and 1200. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. "First Tier Covered Transactions" refers to any covered transaction between a recipient or subrecipient of Federal funds and a participant (such as the prime or general contract). "Lower Tier Covered Transactions" refers to any covered transaction under a First Tier Covered Transaction (such as subcontracts). "First Tier Participant" refers to the participant who has entered into a covered transaction with a recipient or subrecipient of Federal funds (such as the prime or general contractor). "Lower Tier Participant" refers any participant who has entered into a covered transaction with a First Tier Participant or other Lower Tier Participants (such as subcontractors and suppliers). e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. 2 CFR 1200.220 and 1200.332. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions exceeding the $25,000 threshold. 2 CFR 180.220 and 1200.220. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant is responsible for ensuring that its principals are not suspended, debarred, or otherwise ineligible to participate in covered transactions. To verify the eligibility of its principals, as well as the eligibility of any lower tier prospective participants, each participant may, but is not required to, check the System for Award Management website (httr)s://www.sam.00v/), which is compiled by the General Services Administration. 2 CFR 180.300, 180.320, 180.330, and 180.335. h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. Page 19 of 28 August 2022 City Council 10 — 54 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual i. Except for transactions authorized under paragraph a of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. 2 CFR 180.325. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion --Lower Tier Participants: 1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals: (a) is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in covered transactions by any Federal department or agency, 2 CFR 180.355; (b) is a corporation that has been convicted of a felony violation under any Federal law within the two-year period preceding this proposal (USDOT Order 4200.6 implementing appropriations act requirements); and (c) is a corporation with any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted, or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability. (USDOT Order 4200.6 implementing appropriations act requirements) 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant should attach an explanation to this proposal. A. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING This provision is applicable to all Federal -aid construction contracts and to all related subcontracts which exceed $100,000. 49 CFR Part 20, App. A. 1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. Exhibit 12-G Required Federal -Aid Contract Language 2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 3. The prospective participant also agrees by submitting its bid or proposal that the participant shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly. I:IIR11b1461AI1!It114114C%1*2AWACATl=111141113 This provision is applicable to all Federal -aid construction contracts, design -build contracts, subcontracts, lower -tier subcontracts, purchase orders, lease agreements, or any other covered transaction. 46 CFR Part 381. This requirement applies to material or equipment that is acquired for a specific Federal -aid highway project 46 CFR 381.7. It is not applicable to goods or materials that come into inventories independent of an FHWA funded -contract. When oceanic shipments (or shipments across the Great Lakes) are necessary for materials or equipment acquired for a specific Federal - aid construction project, the bidder, proposer, contractor, subcontractor, or vendor agrees: 1. To utilize privately owned United States -flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States -flag commercial vessels. 46 CFR 381.7. 2. To furnish within 20 days following the date of loading for shipments originating within the United States or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated, 'on -board' commercial ocean bill -of -lading in English for each shipment of cargo described in paragraph (b)(1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills -of - lading) and to the Office of Cargo and Commercial Sealift (MAR- 620), Maritime Administration, Washington, DC 20590. (MARAD requires copies of the ocean carrier's (master) bills of lading, certified onboard, dated, with rates and charges. These bills of lading may contain business sensitive information and therefore may be submitted directly to MARAD by the Ocean Transportation Intermediary on behalf of the contractor). 46 CFR 381.7. Page 20 of 28 August 2022 City Council 10 — 55 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual 12. FEMALE AND MINORITY GOALS Exhibit 12-G Required Federal -Aid Contract Language To comply with Section II, "Nondiscrimination," of "Required Contract Provisions Federal -Aid Construction Contracts," the following are for female and minority utilization goals for Federal -aid construction contracts and subcontracts that exceed $10,000: The nationwide goal for female utilization is 6.9 percent. The goals for minority utilization (45 Fed Reg 65984 (10/3/1980)) are as follows: MINORITY UTILIZATION GOALS Economic Goal —] Area (Percent) Redding CA: 174 Non-SMSA (Standard Metropolitan Statistical Area) Counties: 6.8 CA Lassen; CA Modoc; CA Plumas; CA Shasta; CA Siskiyou; CA Tehama Eureka, CA 175 Non-SMSA Counties: 6.6 CA Del Norte; CA Humboldt; CA Trinity San Francisco -Oakland -San Jose, CA: SMSA Counties: 7120 Salinas -Seaside -Monterey, CA 28.9 CA Monterey 7360 San Francisco -Oakland 25.6 CA Alameda; CA Contra Costa; CA Marin; CA San Francisco; CA San Mateo 7400 San Jose, CA 19.6 176 CA Santa Clara, CA 7485 Santa Cruz, CA 14.9 CA Santa Cruz 7500 Santa Rosa 9.1 CA Sonoma 8720 Vallejo -Fairfield -Napa, CA 17.1 CA Napa; CA Solano Non-SMSA Counties: 23.2 CA Lake; CA Mendocino; CA San Benito Sacramento, CA: SMSA Counties: . 177 6920 Sacramento, CA 16.1 CA Placer; CA Sacramento; CA Yolo Non-SMSA Counties 14.3 CA Butte; CA Colusa; CA El Dorado; CA Glenn; CA Nevada; CA Sierra; CA Sutter; CA Yuba Stockton -Modesto, CA: SMSA Counties: 5170 Modesto, CA 12.3 178 CA Stanislaus 8120 Stockton, CA 24.3 CA San Joaquin Non-SMSA Counties 19.8 CA Alpine; CA Amador; CA Calaveras; CA Mariposa; CA Merced; CA Tuolumne Fresno -Bakersfield, CA SMSA Counties: 179 0680 Bakersfield, CA 19.1 CA Kern 2840 Fresno, CA 26.1 Page 21 of 28 August 2022 City Council 10 — 56 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual Exhibit 12-G Required Federal -Aid Contract Language CA Fresno Non-SMSA Counties: CA Kings; CA Madera; CA Tulare 23.6 Los Angeles, CA: SMSA Counties: 0360 Anaheim -Santa Ana -Garden Grove, CA 11.9 CA Orange 28.3 4480 Los Angeles -Long Beach, CA CA Los Angeles 21.5 180 6000 Oxnard -Simi Valley -Ventura, CA CA Ventura 19.0 6780 Riverside -San Bernardino -Ontario, CA CA Riverside; CA San Bernardino 19.7 7480 Santa Barbara -Santa Maria -Lompoc, CA CA Santa Barbara 24.6 Non-SMSA Counties CA Inyo; CA Mono; CA San Luis Obispo San Diego, CA: SMSA Counties 181 7320 San Diego, CA 16.9 CA San Diego Non-SMSA Counties 18.2 CA Imperial For the last full week of July during which work is performed under the contract, the prime contractor and each non material -supplier subcontractor with a subcontract of $10,000 or more must complete Form FHWA PRA391 (Appendix C to 23 CFR 230). Submit the forms by August 15. 13. TITLE VI ASSURANCES The U.S. Department of Transportation Order No.1050.2A requires all federal -aid Department of Transportation contracts between an agency and a contractor to contain Appendix A and E. Appendix B only requires inclusion if the contract impacts deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein. Appendices C and D only require inclusion if the contract impacts deeds, licenses, leases, permits, or similar instruments entered into by the recipient. APPENDIX A During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONTRACTOR) agrees as follows: a. Compliance with Regulations: CONTRACTOR shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement. b. Nondiscrimination: CONTRACTOR, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub -applicants, including procurements of materials and leases of equipment. CONTRACTOR shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations. c. Solicitations for Sub-a-greements Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONTRACTOR for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, Page 22 of 28 August 2022 City Council 10 — 57 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual Exhibit 12-G Required Federal -Aid Contract Language each potential sub -applicant or supplier shall be notified by CONTRACTOR of the CONTRACTOR'S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. d. Information and Rer)orts: CONTRACTOR shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONTRACTOR is in the exclusive possession of another who fails or refuses to furnish this information, CONTRACTOR shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONTRACTOR has made to obtain the information. e. Sanctions for Noncompliance: In the event of CONTRACTOR's noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: i. withholding of payments to CONTRACTOR under the Agreement within a reasonable period of time, not to exceed 90 days; and/or ii. cancellation, termination or suspension of the Agreement, in whole or in part. f. Incorporation of Provisions: CONTRACTOR shall include the provisions of paragraphs (1) through (6) in every sub -agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. CONTRACTOR shall take such action with respect to any sub -agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONTRACTOR becomes involved in, or is threatened with, litigation with a sub -applicant or supplier as a result of such direction, CONTRACTOR may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONTRACTOR may request the United States to enter into such litigation to protect the interests of the United States. APPENDIX B CLAUSES FOR DEEDS TRANSFERRING UNITED STATES PROPERTY The following clauses will be included in deeds effecting or recording the transfer of real property, structures, or improvements thereon, or granting interest therein from the United States pursuant to the provisions of Assurance 4: NOW THEREFORE, the U.S. Department of Transportation as authorized by law and upon the condition that the recipient will accept title to the lands and maintain the project constructed thereon in accordance with Title 23 U.S.C., the regulations for the administration of the preceding statute, and the policies and procedures prescribed by the FHWA of the U.S. Department of Transportation in accordance and in compliance with all requirements imposed by Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally -assisted programs of the U.S. Department of Transportation pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. § 2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the recipient all the right, title and interest of the U.S. Department of Transportation in and to said lands described in Exhibit A attached hereto and made a part hereof. (HABENDUM CLAUSE) TO HAVE AND TO HOLD said lands and interests therein unto the recipient and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and will be binding on the recipient, its successors and assigns. The recipient, in consideration of the conveyance of said lands and interest in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person Page 23 of 28 August2022 City Council 10 — 58 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual Exhibit 12-G Required Federal -Aid Contract Language will on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on, over, or under such lands hereby conveyed [,] [and]* (2) that the recipient will use the lands and interests in lands and interest in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally -assisted programs of the U.S. Department of Transportation, Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations and Acts may be amended[, and (3) that in the event of breach of any of the above -mentioned non-discrimination conditions, the Department will have a right to enter or re-enter said lands and facilities on said lands, and that above described land and facilities will thereon revert to and vest in and become the absolute property of the U.S. Department of Transportation and its assigns as such interest existed prior to this instruction].* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary in order to make clear the purpose of Title VI.) APPENDIX C CLAUSES FOR TRANSFER OF REAL PROPERTY ACQUIRED OR IMPROVED UNDER THE ACTIVITY, FACILITY, OR PROGRAM The following clauses will be included in deeds, licenses, leases, permits, or similar instruments entered into by the recipient pursuant to the provisions of Assurance 7(a): A. The (grantee, lessee, permittee, etc. as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add "as a covenant running with the land"] that: 1. In the event facilities are constructed, maintained, or otherwise operated on the property described in this (deed, license, lease, permit, etc.) for a purpose for which a U.S. Department of Transportation activity, facility, or program is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permittee, etc.) will maintain and operate such facilities and services in compliance with all requirements imposed by the Acts and Regulations (as may be amended) such that no person on the grounds of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities. B. With respect to licenses, leases, permits, etc., in the event of breach of any of the above Non- discrimination covenants, the recipient will have the right to terminate the (lease, license, permit, etc.) and to enter, re-enter, and repossess said lands and facilities thereon, and hold the same as if the (lease, license, permit, etc.) had never been made or issued.* C. With respect to a deed, in the event of breach of any of the above Non-discrimination covenants, the recipient will have the right to enter or re-enter the lands and facilities thereon, and the above described lands and facilities will there upon revert to and vest in and become the absolute property of the recipient and its assigns.* (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) Page 24 of 28 August2022 City Council 10 — 59 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual Exhibit 12-G Required Federal -Aid Contract Language APPENDIX D CLAUSES FOR CONSTRUCTION/USE/ACCESS TO REAL PROPERTY ACQUIRED UNDER THE ACTIVITY, FACILITY OR PROGRAM The following clauses will be included in deeds, licenses, permits, or similar instruments/agreements entered into by the recipient pursuant to the provisions of Assurance 7(b): A. The (grantee, licensee, permittee, etc., as appropriate) for himself/herself, his/her heirs, personal representatives, successors in interest ,and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds and leases add, "as a covenant running with the land") that (1) no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land, and the furnishings of services thereon, no person on the ground of race, color, or national origin, will be excluded from participation in, denied the benefits or, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permittee, etc.) will use the premises in compliance with all other requirements imposed by or pursuant to the Acts and Regulations, as amended, set forth in this Assurance. B. With respect to (licenses, leases, permits, etc.) in the event of breach of any of the above of the above Non-discrimination covenants, the recipient will have the right to terminate the (license, permits, etc., as appropriate) and to enter or re-enter and repossess said land and the facilities thereon, and hold the same as if said (license, permit, etc., as appropriate) had never been made or issued.* C. With respect to deeds, in the event of breach of any of the above Non-discrimination covenants, the recipient will there upon revert to and vest in and become the absolute property of the recipient and its assigns. (*Reverter clause and related language to be used only when it is determined that such a clause is necessary to make clear the purpose of Title VI.) APPENDIX E During the performance of this contract, the contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the "contractor") agrees to comply with the following non-discrimination statutes and authorities, including, but not limited to: Pertinent Non -Discrimination Authorities: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex; • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); Page 25 of 28 August 2022 City Council 10 — 60 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual Exhibit 12-G Required Federal -Aid Contract Language • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131—12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). 14. USE OF UNITED STATES -FLAG VESSELS (CARGO PREFERENCE ACT) The CONTRACTOR agrees: 1. To utilize privately owned United States -flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carries, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States -flag commercial vessels. 2. To Furnish within 20 days following the date of loading for shipments originating within the United State or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated "on -board" commercial ocean bill -of -lading in English for each shipment of cargo described in paragraph (1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills -of -lading) and to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590. 3. To insert the substance of the provisions of this clause in all subcontracts issued pursuant to this contract. Federal Trainee Program Special Provisions (to be used when applicable) 15. FEDERAL TRAINEE PROGRAM For the Federal training program, the number of trainees orapprentices is_. This section applies if a number of trainees or apprentices is specified in the special provisions. As part of the prime contractor's equal opportunity affirmative action program, provide on-the-job training to develop full journeymen in the types of trades or job classifications involved. The prime contractor has primary responsibility for meeting this training requirement. If the prime contractor subcontracts a contract part, they shall determine how many trainees or apprentices are to be trained by the subcontractor. Include these training requirements in each subcontract. Where feasible, 25 percent of apprentices or trainees in each occupation must be in their 1 st year of apprenticeship or training. Distribute the number of apprentices or trainees among the work classifications on the basis of the prime contractor's needs and the availability of journeymen in the various classifications within a reasonable recruitment area. Before starting work, the prime contractor shall submit to the City/County of_ 1. Number of apprentices or trainees to be trained for each classification 2. Training program to be used Page 26 of 28 August 2022 City Council 10 — 61 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual Exhibit 12-G Required Federal -Aid Contract Language 3. Training starting date for each classification The prime contractor shall obtain the City/County of approval for this submitted information before the prime contractor starts work. The City/County of credits the prime contractor for each apprentice or trainee the prime contractor employs on the job who is currently enrolled or becomes enrolled in an approved program. The primary objective of this section is to train and upgrade minorities and women toward journeyman status. The prime contractor shall make every effort to enroll minority and women apprentices or trainees, such as conducting systematic and direct recruitment through public and private sources likely to yield minority and women apprentices or trainees, to the extent they are available within a reasonable recruitment area and show that they have made the efforts. In making these efforts, the prime contractor shall not discriminate against any applicant for training. The prime contractor shall not employ as an apprentice or trainee an employee: 1. In any classification in which the employee has successfully completed a training course leading to journeyman status or in which the employee has been employed as a journeyman 2. Who is not registered in a program approved by the US Department of Labor, Bureau of Apprenticeship and Training The prime contractor shall ask the employee if the employee has successfully completed a training course leading to journeyman status or has been employed as a journeyman. The prime contractor's records must show the employee's answers to the questions. In the training program, the prime contractor shall establish the minimum length and training type for each classification. The City/County of and FHWA approves a program if one of the following is met: 1. It is calculated to: • Meet the your equal employment opportunity responsibilities • Qualify the average apprentice or trainee for journeyman status in the classification involved by the end of the training period 2. It is registered with the U.S. Department of Labor, Bureau of Apprenticeship and Training, and it is administered in a way consistent with the equal employment responsibilities of Federal -aid highway construction contracts The prime contractor shall obtain the State's approval for their training program before they start work involving the classification covered by the program. The prime contractor shall provide training in the construction crafts, not in clerk -typist or secretarial -type positions. Training is allowed in lower level management positions such as office engineers, estimators, and timekeepers if the training is oriented toward construction applications. Training is allowed in the laborer classification if significant and meaningful training is provided and approved by the division office. Off -site training is allowed if the training is an integral part of an approved training program and does not make up a significant part of the overall training. The City/County of reimburses the prime contractor 80 cents per hour of training given an employee on thiscontract under an approved training program: 1. For on -site training 2. For off -site training if the apprentice or trainee is currently employed on a Federal -aid project and prime contractor does at least one of the following: a. Contribute to the cost of the training b. Provide the instruction to the apprentice or trainee c. Pay the apprentice's or trainee's wages during the off -site training period 3. If the prime contractor complies with this section. Each apprentice or trainee must: 1. Begin training on the project as soon as feasible after the start of work involving the apprentice's or trainee's skill 2. Remain on the project as long as training opportunities exist in the apprentice's or trainee's work classification or until the apprentice or trainee has completed the training program Page 27 of 28 August 2022 City Council 10 — 62 3/7/2023 EXHIBIT "C" Local Assistance Procedures Manual Exhibit 12-G Required Federal -Aid Contract Language The prime contractor shall furnish the apprentice or trainee with a copy of the program that the prime contractor will comply with in providing the training. 16. PROHIBITION OF CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE EQUIPMENT AND SERVICES In response to significant national security concerns, the agency shall check the prohibited vendor list before making any telecommunications and video surveillance purchase because recipients and subrecipients of federal funds are prohibited from obligating or expending loan or grant funds to: • Procure or obtain; • Extend or renew a contract to procure or obtain; or • Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. The prohibited vendors (and their subsidiaries or affiliates) are: • Huawei Technologies Company; • ZTE Corporation; • Hytera Communications Corporation; • Hangzhou Hikvision Digital Technology Company; • Dahua Technology Company; and • Subsidiaries or affiliates of the above -mentioned companies. In implementing the prohibition, the agency administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained. The contractors should furnish telecommunications and video surveillance equipment with a certificate of compliance. The certificate must state telecommunications and video surveillance equipment was not procured or obtained from manufacturers identified in the above list. Page 28 of 28 August2022 City Council 10 — 63 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET EXHIBIT "D" FEDERAL -AID CONTRACT PROVISIONS 1. DISADVANTAGED BUSINESS ENTERPRISES (DBE) The CONTRACTOR, subrecipient or subcontractor shall take necessary and reasonable steps to ensure that DBEs have opportunity to participate in the contract (49CFR26). To ensure equal participation of DBEs provided in 49CFR26.5, the CITY shows a Contract goal for DBEs. The CONTRACTOR shall make work available to DBEs and select work parts consistent with available DBE subcontractors and suppliers. The CONTRACTOR shall meet the DBE goal shown in the Instruction to Bidders or demonstrate that you made adequate good faith efforts to meet this goal. It is the CONTRACTOR's responsibility to verify that at date of bid opening the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes and work code applicable to the type of work the firm will perform on the contract. Additionally, the prime contractor is responsible to document the verification record by printing out the California Unified Certification Program (CUCP) data for each DBE firm. A list of DBEs certified by the CUCP can be found at: https:Hdot.ca.gov/programs/civil-rights/dbe-search. All DBE participation will count toward the California Department of Transportation's federally mandated statewide overall DBE goal. Credit for materials or supplies the CONTRACTOR purchases from DBEs counts towards the goal in the following manner: 100 percent counts if the materials or supplies are obtained from a DBE manufacturer. 60 percent counts if the materials or supplies are obtained from a DBE regular dealer. • Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that is neither a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer." The CONTRACTOR receives credit towards the goal if they employ a DBE trucking company that performs a commercially useful function as defined in 49CFR26.55(d)(1) as follows: • The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals. • The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the Contract. • The DBE receives credit for the total value of the transportation services it provides on the Contract using trucks it owns, insures, and operates using drivers it employs. • The DBE may lease trucks from another DBE firm, including an owner -operator who is certified as a DBE. The DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee DBE provides on the Contract. City Council 10 — 64 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET • The DBE may lease trucks without drivers from a non -DBE truck leasing company. If the DBE leases trucks from a non -DBE truck leasing company and uses its own employees as drivers, it is entitled to credit for the total value of these hauling services. • A lease must indicate that the DBE has exclusive use of and control over the truck. This does not preclude the leased truck from working for others during the term of the lease with the consent of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must display the name and identification number of the DBE. Nondiscrimination Statement The CONTRACTOR, subrecipient or subcontractor will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the CITY components of the DBE Program Plan, the CONTRACTOR, subrecipient or subcontractor will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin. Contract Assurance Under 49 CFR 26.13(b): The CONTRACTOR, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The CONTRACTOR shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal -aid contracts. Failure by the CONTRACTOR to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to: • Withholding monthly progress payments; • Assessing sanctions; • Liquidated damages; and/or • Disqualifying the CONTRACTOR from future bidding as non -responsible. Prompt Progress Payment The CONTRACTOR or subcontractor shall pay to any subcontractor, not later than seven days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed the contractor on account of the work performed by the subcontractors, to the extent of each subcontractor's interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from the CONTRACTOR or subcontractor to a subcontractor, the CONTRACTOR or subcontractor may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee City Council 10 — 65 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT :PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET to a penalty, payable to the subcontractor, of 2 percent of the amount due per month for every month that payment is not made. In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney's fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non -DBE subcontractors. Prompt Payment of Withheld Funds to Subcontractors The CITY shall hold retainage from the CONTRACTOR and shall make prompt and regular incremental acceptances of portions, as determined by the CITY of the Contract work and pay retainage to the prime CONTRACTOR based on these acceptances. The CONTRACTOR or subcontractor shall return all monies withheld in retention from all subcontractors within seven (7) days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the Contract work by the CITY. Any delay or postponement of payment may take place only for good cause and with the CITY's prior written approval. Any violation of these provisions shall subject the violating CONTRACTOR or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to the CONTRACTOR or subcontractor in the event of a dispute involving late payment or nonpayment by the CONTRACTOR; deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non -DBE subcontractors. Any violation of these provisions of Prompt Progress Payment and Prompt Payment of Withheld Funds to Subcontractors shall subject the violating CONTRACTOR or subcontractor to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the CONTRACTOR or subcontractor in the event of a dispute involving late payment or nonpayment by CONTRACTOR, deficient subcontract performance, or noncompliance by a subcontractor. Termination and Substitution of DBE Subcontractors The CONTRACTOR shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless the CONTRACTOR obtains the CITY's written consent. The CONTRACTOR shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without prior written authorization from the CITY. Unless the CITY's prior written consent is provided, the CONTRACTOR shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 15-G Construction Contract DBE Commitment form, included in the Bid. The CITY authorizes a request to use other forces or sources of materials if the bidder shows any of the following justifications: 1.Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project. 2.The CITY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet your bond requirements. City Council 10 — 66 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET 3.Work requires a contractor's license and listed DBE does not have a valid license under Contractors License Law. 4.Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination). 5.Listed DBE's work is unsatisfactory and not in compliance with the Contract. 6.Listed DBE is ineligible to work on the Project because of suspension or debarment. 7.Listed DBE becomes bankrupt or insolvent. 8.Listed DBE voluntarily withdraws with written notice from the Contract 9.Listed DBE is ineligible to receive credit for the type of work required. 10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract. 11. The CITY determines other documented good cause. The CONTRACTOR shall notify the original DBE of your intent to use other forces or material sources and provide the reasons, allowing the DBE 5 days to respond to the notice and advise the CONTRACTOR and the CITY of the reasons why the use of other forces or sources of materials should not occur. 1. One or more of the reasons listed in the preceding paragraph. 2.Notices from the CONTRACTOR to the DBE regarding the request. 3.Notices from the DBEs to the CONTRACTOR regarding the request. If the CITY authorizes the termination or substitution of a listed DBE, the CONTRACTOR must make good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must (1) perform at least the same amount of work as the original DBE under the Contract to the extent needed to meet or exceed the DBE goal, and (2) be certified as a DBE with the most specific available NAICS codes and work codes applicable to the type of work the DBE will perform on the Contract at the time of the CONTRACTOR's request for substitution. The CONTRACTOR shall submit their documentation of good faith efforts within 7 days of their request for authorization of the substitution. The CITY may authorize a 7-day extension of this submittal period at the CONTRACTOR's request. More guidance can be found at 49 CFR 26 app A regarding evaluation of good faith efforts to meet the DBE goal. Commitment and Utilization Note: In the CITY's reports of DBE participation to Caltrans, the CITY must display both commitments and attainments. The CITY's DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization. The bidder shall submit the Exhibit 15-G Construction Contract DBE Commitment, included in the Bid book. This exhibit is the bidder's DBE commitment form. If the form is not submitted with the bid, the bidder must remove the form from the Bid book before submitting their bid. The bidder shall complete and sign Exhibit 15-G Construction Contract DBE Commitment included in the Contract Documents regardless of whether DBE participation is reported. The bidder shall provide written confirmation from each DBE that the DBE is participating in the Contract. A copy of a DBE's City Council 10 — 67 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET quote serves as written confirmation. If a DBE is participating as a joint venture partner, the bidder shall submit a copy of the joint venture agreement. If the DBE Commitment form, Exhibit 15-G, is not submitted with the bid, it must be completed and submitted by all bidders to the CITY within five (5) days of bid opening. If the bidder does not submit the DBE Commitment form within the specified time, the CITY will find the bidder's bid nonresponsive. The CONTRACTOR shall use each DBE subcontractor as listed on Exhibit 12-B Bidder's List of Subcontractors (DBE and Non -DBE), and Exhibit 15-G Construction Contract DBE Commitment form unless they receive authorization for a substitution. The CITY shall request the CONTRACTOR to: 1. Notify the Resident Engineer or Inspector of any changes to its anticipated DBE participation 2. Provide this notification before starting the affected work 3. Maintain records including: • Name and business address of each 1 st-tier subcontractor • Name and business address of each DBE subcontractor, DBE vendor, and DBE trucking company, regardless of tier • Date of payment and total amount paid to each business (see Exhibit 9-F Monthly Disadvantaged Business Enterprise Payment) If the CONTRACTOR is a DBE contractor, they shall include the date of work performed by their own forces and the corresponding value of the work. Before the 15th of each month, the CONTRACTOR shall submit a Monthly DBE Trucking Verification (LAPM Exhibit 16-Z 1) form. If a DBE is decertified before completing its work, the DBE must notify the CONTRACTOR in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify the prime contractor in writing of the certification date. The CONTRACTOR shall submit the notifications. Upon work completion, the CONTRACTOR shall complete a Disadvantaged Business Enterprises (DBE) Certification Status Change, Exhibit 17-0, form and submit the form within 30 days of contract acceptance. DBE Running Tally of Attainments After submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the loth of the following month, the CONTRACTOR shall complete and email the Exhibit 9- F: Disadvantaged Business Enterprise Running Tally of Payments to business.support.unit@dot.ca.gov with a copy to the CITY. 2. BID OPENING The CITY publicly opens and reads bids at the time and place shown in the Notice Inviting Bids. 3. BID RIGGING City Council 10 — 68 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT ]PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET See the Special Instructions to Bidders for Federally Funded Projects in the Instruction to Bidders. 4. CONTRACT AWARD If the CITY awards the Construction Contract, the award is made to the lowest responsible and responsive bidder. 5. CONTRACTOR LICENSE The CONTRACTOR must be properly licensed from Construction Contract award through Construction Contract acceptance (Public Contract Code § 10164). 6. CHANGED CONDITIONS Differing Site Conditions Section 2-9 of the Standard Specifications includes provisions for differing site conditions. Suspensions of Work Ordered by the Engineer If the performance of all or any portion of the Work is suspended or delayed by the CITY in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the CONTRACTOR believes that additional compensation and/or contract time is due as a result of such suspension or delay, the CONTRACTOR shall submit to the CITY in writing a request for adjustment within seven (7) calendar days of receipt of the notice to resume work. The request shall set forth the reasons and support for such adjustment. Upon receipt, the CITY will evaluate the CONTRACTOR's request. If the CITY agrees that the cost and/or time required for the performance of the Contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the CONTRACTOR, its suppliers, or subcontractors at any approved tier, and not caused by weather, the CITY will make an adjustment (excluding profit) and modify the Contract in writing accordingly. The CONTRACTOR will be notified of the CITY's determination whether or not an adjustment of the Contract is warranted. No Contract adjustment will be allowed unless the CONTRACTOR has submitted the request for adjustment within the time prescribed. Significant Changes in the Character of Work The CITY reserves the right to make, in writing, at any time during the Work, such changes in quantities and such alterations in the Work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations shall not invalidate the Contract nor release the surety, and the CONTRACTOR agrees to perform the Work as altered. If the alterations or changes in quantities significantly change the character of the Work under the Contract, whether such alterations or changes are in themselves significant changes to the character of the Work or by affecting other work cause such other work to become significantly different in character, an City Council 10 — 69 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT ]PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET adjustment, excluding anticipated profit, will be made to the Contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the CONTRACTOR in such amount as the CITY may determine to be fair and equitable. If the alterations or changes in quantities do not significantly change the character of the work to be performed under the Contract, the altered work will be paid for as provided elsewhere in the Contract. The term "significant change" shall be construed to apply only to the following circumstances: When the character of the Work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or When a major item of Work, as defined elsewhere in the Contract, is increased in excess of 125 percent or decreased below 75 percent of the original Contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original Contract item quantity, or in case of a decrease below 75 percent, to the actual amount of Work performed. 7. BEGINNING OF WORK, TIME OF COMPLETION AND LIQUIDATED DAMAGES The Bid Proposal includes provisions for the beginning of Work, time of completion, and liquidated damages. 8. BUY AMERICA Furnish steel and iron materials to be incorporated into the Work with certificates of compliance and certified mill test reports. Mill test reports must indicate where the steel and iron were melted and manufactured. Steel and iron materials must be produced in the U.S. except: • Foreign pig iron and processed, pelletized, and reduced iron ore may be used in the domestic production of the steel and iron materials [60 Fed Reg 15478 (03/24/1995)]; • If the total combined cost of the materials does not exceed the greater of 0.1 percent of the total bid or $2,500, materials produced outside the U.S. may be used. Production includes: Processing steel and iron materials, including smelting or other processes that alter the physical form or shape (such as rolling, extruding, machining, bending, grinding, and drilling) or chemical composition; • Coating application, including epoxy coating, galvanizing, and painting, that protects or enhances the value of steel and iron materials. 9. QUALITY ASSURANCE City Council 10 — 70 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET The CITY uses a Quality Assurance Program (QAP) to ensure a material is produced to comply with the Contract. You may examine the records and reports of tests the CITY performs if they are available at the job site. Schedule Work to allow time for QAP in accordance with the Contract Documents. 10. PROMPT PAYMENT FROM THE AGENCY TO THE CONTRACTORS The CITY shall make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from the CONTRACTOR. If the CITY fails to pay promptly, the CITY shall pay interest to the CONTRACTOR, which accrues at the rate of 10 percent per annum on the principal amount of a money judgment remaining unsatisfied. Upon receipt of a payment request, the CITY shall act in accordance with both of the following: • Each payment request shall be reviewed by the CITY as soon as practicable after receipt for the purpose of determining that it is a proper payment request. • Any payment request determined not to be a proper payment request suitable for payment shall be returned to the CONTRACTOR as soon as practicable, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall be accompanied by a document setting forth in writing the reasons why the payment request is not proper. 11. FORM FWHA-1273 REQUIRED CONTRACT PROVISIONS FEDERAL -AID CONTRACTS See Exhibit `B" of the Construction Contract. 12. FEMALE AND MINORITY GOALS To comply with Section II, "Nondiscrimination," of 'Required Contract Provisions Federal -Aid Construction Contracts," the following are for female and minority utilization goals for Federal -aid construction contracts and subcontracts that exceed $10,000: • The nationwide goal for female utilization is 6.9 percent. The goals for minority utilization [45 Fed Reg 65984 (10/3/1980)] are as follows: MINORITY UTILIZATION GOALS Economic Goal Area (Percent) Redding CA: 174 Non-SMSA (Standard Metropolitan Statistical Area) Counties: CA Lassen; CA Modoc; CA Plumas; CA Shasta; CA Siskiyou; CA Tehama Eureka, CA 175 Non-SMSA Counties: 6.6 CA Del Norte; CA Humboldt; CA Trinity San Francisco -Oakland -San Jose, CA: City Council 10 — 71 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET SMSA Counties: 7120 Salinas -Seaside -Monterey, CA 28.9 CA Monterey 7360 San Francisco -Oakland 25.6 CA Alameda; CA Contra Costa; CA Marin; CA San Francisco; CA San Mateo 7400 San Jose, CA CA Santa Clara, CA 19.6 176 7485 Santa Cruz, CA CA Santa Cruz 14.9 7500 Santa Rosa CA Sonoma 9.1 8720 Vallejo -Fairfield -Napa, CA CA Napa; CA Solano 17.1 Non-SMSA Counties: CA Lake; CA Mendocino; CA San Benito Sacramento, CA: 23.2 SMSA Counties: 6920 Sacramento, CA 16.1 177 CA Placer; CA Sacramento; CA Yolo Non-SMSA 14.3 Counties CA Butte; CA Colusa; CA El Dorado; CA Glenn; CA Nevada; CA Sierra; CA Sutter; CA Yuba c, . r.,,, AR o + 0n. SMSA Counties: 5170 Modesto, CA 12.3 CA Stanislaus 178 8120 Stockton, CA 24.3 CA San Joaquin Non-SMSA Counties 19.8 CA Alpine; CA Amador; CA Calaveras; CA Mariposa; CA Merced; CA Tuolumne Fresno-B,Aersfield, CA SMSA Counties: 179 0680 Bakersfield, CA 19.1 CA Kern 2.840 Fresno, CA 6.1 CA Fresno Non-SMSA Counties: 23.6 CA Kings; CA Madera; CA Tulare Los Angeles, CA: SMSA Counties: 0360 Anaheim -Santa Ana -Garden Grove, CA 11.9 CA Orange 4480 Los Angeles -Long Beach, CA 28.3 CA Los Angeles City Council 10 — 72 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET 180 6000 Oxnard -Simi Valley -Ventura, CA CA Ventura 6780 Riverside -San Bernardino -Ontario, CA CA Riverside; CA San Bernardino 7480 Santa Barbara -Santa Maria -Lompoc, CA CA Santa Barbara Non-SMSA Counties CA Inyo; CA Mono; CA San Luis Obispo San Diego, CA: SMSA Counties 181 7320 San Diego, CA CA San Diego Non-SMSA Counties CA Imperial 21.5 19.0 19.7 24.6 16.9 18.2 For the last full week July during which work is performed under the contract, you and each non material - supplier subcontractor with a subcontract of $10,000 or more must complete Form FHWA PR-1391 (Appendix C to 23 CFR 230). Submit the forms by August 15. 13. TITLE VI ASSURANCES Appendix A During the performance of this Contract, the CONTRACTOR, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONTRACTOR) agrees as follows: • Compliance with Regulations: CONTRACTOR shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Contract. Nondiscrimination: CONTRACTOR, with regard to the Work performed by it during the Contract, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub -applicants, including procurements of materials and leases of equipment. CONTRACTOR shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations. • Solicitations for Sub -agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONTRACTOR for work to be performed under a sub- agreement, including procurements of materials or leases of equipment, each potential sub -applicant or supplier shall be notified by CONTRACTOR of the CONTRACTOR's obligations under this Contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. City Council 10 — 73 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET Information and Reports: CONTRACTOR shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the California Department of Transportation or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONTRACTOR is in the exclusive possession of another who fails or refuses to furnish this information, CONTRACTOR shall so certify to the California Department of Transportation or the FHWA as appropriate, and shall set forth what efforts CONTRACTOR has made to obtain the information. • Sanctions for Noncompliance: In the event of CONTRACTOR's noncompliance with the nondiscrimination provisions of this Contract, the California Department of Transportation shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: o withholding of payments to CONTRACTOR under the Contract within a reasonable period of time, not to exceed 90 days; and/or o cancellation, termination or suspension of the Contract, in whole or in part. • Incorporation of Provisions: CONTRACTOR shall include the provisions of paragraphs (A) through (F) in every sub -agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. CONTRACTOR shall take such action with respect to any sub -agreement or procurement as the California Department of Transportation or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONTRACTOR becomes involved in, or is threatened with, litigation with a sub -applicant or supplier as a result of such direction, CONTRACTOR may request the California Department of Transportation enter into such litigation to protect the interests of the State, and, in addition, CONTRACTOR may request the United States to enter into such litigation to protect the interests of the United States. Appendix E During the performance of this Contract, the CONTRACTOR, for itself, its assignees, and successors in interest (hereinafter referred to as the "CONTRACTOR") agrees to comply with the following non- discrimination statutes and authorities, including, but not limited to: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex; City Council 10 — 74 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27; • The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 — 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); • Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). 14. USE OF UNITED STATES FLAG VESSELS (CARGO PREFERENCE ACT) The CONTRACTOR agrees: • To utilize privately owned United States -flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carries, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to this contract, to the extent such vessels are available at fair and reasonable rates for United States -flag commercial vessels. City Council 10 — 75 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET To furnish within 20 days following the date of loading for shipments originating within the United State or within 30 working days following the date of loading for shipments originating outside the United States, a legible copy of a rated "on -board" commercial ocean bill -of -lading in English for each shipment of cargo described in paragraph (1) of this section to both the Contracting Officer (through the prime contractor in the case of subcontractor bills -of -lading) and to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590. • To insert the substance of the provisions of this clause in all subcontracts issued pursuant to this Contract. 15. FEDERAL TRAINEE PROGRAM For the Federal training program, the number of trainees or apprentices is This section applies if a number of trainees or apprentices is specified in Special Conditions. As part of the CONTRACTOR's equal opportunity affirmative action program, provide on-the-job training to develop full journeymen in the types of trades or job classifications involved. The CONTRACTOR primary responsibility for meeting this training requirement. If the CONTRACTOR subcontracts a Contract part, determine how many trainees or apprentices are to be trained by the subcontractor. Include these training requirements in each subcontract. Where feasible, 25 percent of apprentices or trainees in each occupation must be in their 1 st year of apprenticeship or training. Distribute the number of apprentices or trainees among the work classifications on the basis of the CONTRACTOR's needs and the availability of journeymen in the various classifications within a reasonable recruitment area. Before starting Work, the CONTRACTOR shall submit to the CITY: • Number of apprentices or trainees to be trained for each classification • Training program to be used • Training starting date for each classification The CONTRACTOR shall obtain the CITY's approval for this submitted information before the CONTRACTOR starts Work. The CITY credits the CONTRACTOR for each apprentice or trainee the CONTRACTOR employs on the Work who is currently enrolled or becomes enrolled in an approved program. The primary objective of this section is to train and upgrade minorities and women toward journeyman status. The CONTRACTOR shall make every effort to enroll minority and women apprentices or trainees, such as conducting systematic and direct recruitment through public and private sources likely to yield City Council 10 — 76 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET minority and women apprentices or trainees, to the extent they are available within a reasonable recruitment area and show that they have made the efforts. In making these efforts, the CONTRACTOR shall not discriminate against any applicant for training. The CONTRACTOR shall not employ as an apprentice or trainee an employee: • In any classification in which the employee has successfully completed a training course leading to journeyman status or in which the employee has been employed as a journeyman Who is not registered in a program approved by the US Department of Labor, Bureau of Apprenticeship and Training The CONTRACTOR shall ask the employee if the employee has successfully completed a training course leading to journeyman status or has been employed as a journeyman. The CONTRACTOR's records must show the employee's answers to the questions. In the training program, the CONTRACTOR shall establish the minimum length and training type for each classification. The CITY and FHWA approves a program if one of the following is met: • It is calculated to: o Meet the your equal employment opportunity responsibilities o Qualify the average apprentice or trainee for journeyman status in the classification involved by the end of the training period • It is registered with the U.S. Department of Labor, Bureau of Apprenticeship and Training, and it is administered in a way consistent with the equal employment responsibilities of Federal -aid highway construction contracts The CONTRACTOR shall obtain the State's approval for your training program before they start Work involving the classification covered by the program. The CONTRACTOR shall provide training in the construction crafts, not in clerk -typist or secretarial - type positions. Training is allowed in lower level management positions such as office engineers, estimators, and timekeepers if the training is oriented toward construction applications. Training is allowed in the laborer classification if significant and meaningful training is provided and approved by the division office. Off -site training is allowed if the training is an integral part of an approved training program and does not make up a significant part of the overall training. The CITY reimburses you 80 cents per hour of training given an employee on this Contract under an approved training program: • For on -site training • For off -site training if the apprentice or trainee is currently employed on a Federal -aid project and you do at least one of the following: City Council 10 — 77 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT ]PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET o Contribute to the cost of the training o Provide the instruction to the apprentice or trainee o Pay the apprentice's or trainee's wages during the off -site training period • If the CONTRACTOR complies with this section. Each apprentice or trainee must: • Begin training on the project as soon as feasible after the start of work involving the apprentice's or trainee's skill • Remain on the project as long as training opportunities exist in the apprentice's or trainee's work classification or until the apprentice or trainee has completed the training program The CONTRACTOR shall furnish the apprentice or trainee with a copy of the program that the CONTRACTOR will comply with in providing the training. 16. PROHIBITION OF CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE EQUIPMENT AND SERVICES In response to significant national security concerns, the CITY shall check the prohibited vendor list before making any telecommunications and video surveillance purchase because recipients and subrecipients of federal funds are prohibited from obligating or expending loan or grant funds to: • Procure or obtain; • Extend or renew a contract to procure or obtain; or • Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. The prohibited vendors (and their subsidiaries or affiliates) are: • Huawei Technologies Company; • ZTE Corporation; • Hytera Communications Corporation; • Hangzhou Hikvision Digital Technology Company; • Dahua Technology Company; and • Subsidiaries or affiliates of the above -mentioned companies. City Council 10 — 78 3/7/2023 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT 19-6948 (ATPSBIL-5063(195)) WEST WILLITS PROTECTED BIKE LANES FROM FAIRVIEW STREET TO RAITT STREET In implementing the prohibition, the agency administering loan, grant, or subsidy programs shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained. City Council 10 — 79 3/7/2023 EXHIBIT 4 COST ANALYSIS CONSTRUCTION OF PROJECT NO. 19-6948 (ATPSBL-5063(195)): West Willits Protected Bike Lanes from Fairview Street to Raitt Street Construction Contract $ 1,798,800.00 Contract Administration, Inspection and Testing $ 270,000.00 Contingencies $ 208,200.00 TOTAL ESTIMATED CONSTRUCTION COSTS 1 $ 2,277,000.00 City Council 10 — 80 3/7/2023 LO H _m x W Re O pa m W .Z Z CO Ha U � w .Z O O a CL N O ro J U_ m a U 0 � o Q N W J CO H a H ° •- U °� "2 a c� U ai U W W o ~ ~ o a a y @II II III I LO N N N }N LL LL N N N N L}L LL N N CN N N N N N N L}L LL N N N N C o a o N r r N ti rn v_ IT � } } LL LL Q a CO O L O U LL 0 U W W U U L O a 0 c Q KFw�PN # x5 p3%fgg i51^ffWS , 3$N++uPS ;� n+McaS y L } M rn 0 N N MS CO �co IZ) O O M i Public Works Agency www.santa-ana.org/public-works Item # 11 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Saddleback View Neighborhood Street Lighting Project AGENDA TITLE Approve an Amendment to the FY 2022-23 Capital Improvement Program for $752,471.25 and Award a Construction Contract to International Line Builders, Inc. in the Amount of $601,977.00 for the Saddleback View Neighborhood Street Lighting Project, with an Estimated Project Delivery Cost of $752,471.25 (Project No. 22-6017) (General Fund) RECOMMENDED ACTION 1. Approve an amendment to the FY 2022-23 Capital Improvement Program to include $752,471.25 in construction funds for the Saddleback View Neighborhood Street Lighting Project (Project No. 22-6017). 2. Award a construction contract to International Line Builders, Inc., the lowest responsible bidder, in accordance with the base bid in the amount of $601,977.00, for construction of the Saddleback View Neighborhood Street Lighting Project, for the term beginning March 7, 2023, and ending upon project completion, and authorize the City Manager to execute the contract subject to non -substantive changes approved by the City Manager and the City Attorney. 3. Approve the Project Cost Analysis for a total estimated construction delivery cost of $752,471.25, which includes $601,977.00 for the construction contract, $90,296.55 for contract administration, inspection and testing, and a $60,197.70 project contingency for unanticipated or unforeseen work. DISCUSSION The City has identified the need to undertake lighting improvements within the Saddleback View Neighborhood along McClay Street, Linwood Avenue, 4th Street, Palm Street, and Mabury Street (Exhibit 1). The scope of work includes installation of new street light poles, LED lights, underground conduits and wiring, and new electrical meter pedestals. Once completed, the newly installed street lighting will provide a safer and welcoming environment for pedestrians and motorists in Saddleback View Neighborhood. Public Outreach and Contractor Participation To provide an opportunity for local vendors to submit bids, the City notified a total of 365 regional vendors via PlanetBids, many of which are Santa Ana based. Six vendors City Council 11 — 1 3/7/2023 Award Construction Contract with International Line Builders, Inc. March 7, 2023 Page 2 requested bidding documents and a total of six bids were received. Bids were not received from any Santa Ana contractors. As legally required, a Notice Inviting Bids was advertised in the Orange County Register newspaper on December 14, 2022 and December 21, 2022. The project was also advertised in PlanetBids from December 14, 2022 through January 4, 2023. Bids were received electronically via PlanetBids on January 4, 2023. Bid Results Summary RANK BIDDER'S NAME LOCATION BASE BID 1 International Line Builders, Inc. Corona, CA $601,977.00 2 MSL Electric, Inc. Anaheim, CA $713,800.00 3 Inter -Pacific, Inc. Tustin, CA $749,885.02 4 Servitek Electric, Inc. Walnut, CA $755,643.00 5 Elecnor Belco Electric, Inc. Chino, CA $788,450.00 6 California Professional Engineering, Inc. La Puente, CA $849,410.00 A total of six bids were received, and all were deemed responsive. International Line Builders, Inc. submitted the lowest responsive base bid in the amount of $601,977.00 (Exhibit 2). As specified in the bid documents, the lowest bid shall be determined on the basis of the Base Bid. Based on the bid analysis and a contractor's reference check, staff recommends awarding the construction contract to International Line Builders, Inc., in the amount of the base bid totaling $601,977.00 (Exhibit 3). International Line Builders, Inc. has successfully completed various projects for the City of Santa Ana throughout the last several years. The most recent projects are 1st Street at Jackson Street & 5th Street at Euclid Street Traffic Signal Modification, Euclid Street at Hazard Avenue Traffic Signal Modification, and Citywide Traffic Signal Vehicle Head Upgrades. Project Delivery To deliver a complete project, in addition to the construction contract, the estimated total project delivery cost includes construction administration, inspection, and testing, along with an allowance for contingencies to account for unexpected or unforeseen conditions. Construction administration and inspection includes construction management; inspection of the Contractor's work to ensure contract compliance, workmanship, and quality; and materials testing. As indicated in the Cost Analysis City Council 11 —2 3/7/2023 Award Construction Contract with International Line Builders, Inc. March 7, 2023 Page 3 (Exhibit 4) and as summarized in the table below, the estimated total construction delivery cost of the project is $752,471.25. Project Item Total Construction Contract $601,977.00 Construction Administration, Inspection, Testing $90,296.55 Contingencies $60,197.70 TOTAL CONSTRUCTION DELIVERY COST $752,471.25 Approval of this item will amend the FY 2022-23 Capital Improvement Program to include the Saddleback View Neighborhood Street Lighting Project (Exhibit 5). ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended actions are exempt from further review. Categorical Exemption Environmental Review No. ER- 2023-1 was filed for the project. FISCAL IMPACT As indicated in the Cost Analysis, the estimated total construction delivery cost of the project is $752,471.25, which includes construction, contract administration, inspection, testing, and an authorized contingency. The following table summarizes the funds budgeted and available in current FY 22-23 for expenditure to deliver construction of this project. Any remaining balances not expended at the end of the fiscal year will be presented to City Council for approval of carryovers to FY 23-24. Accounting Accounting Unit - Fiscal Unit - Account Fund Account No. Amount Year No. Description Description Project No. PW-ST Light 01117630- General Fund - Maintenance 2022-23 66220 PWA Street Service $752,471.25- $752,471.25 (22-6017) Lighting Improvements Other Than Buildings Total $752,471.25 EXHIBIT(S) 1. Location Map 2. Bid Proposal City Council 11 — 3 3/7/2023 Award Construction Contract with International Line Builders, Inc. March 7, 2023 Page 4 3. Construction Contract 4. Cost Analysis 5. CIP Project Sheet Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency Approved By: Kristine Ridge, City Manager City Council 11 — 4 3/7/2023 City Council Exhibit 1 11 — 5 3/7/2023 Exhibit 2 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6017 SADDLEBACK VIEW NEIGHBORHOOD STREET LIGHTING BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: International Line Builders, Inc. dba ILB Electric REQUIREMENT: The undersigned bidder declares that they have carefully examined the location of the proposed work, that they have examined the Contract Documents in its entirety and hereby proposes to furnish all material and do all the work required to complete the said work in accordance with said plans (if any) and the specifications for the unit price(s) or lump sum(s) set forth in the following schedule: Item Description Qty Unit Unit Price Amount 1 Install Street Light Pole 23 EA $ L119,15.00 $159't'5& j. 2 Install Electrical Meter Pedestal 2 EA $ t,33 xv $1 l U u %.00 3 * Install 3#8 AWG Conductor Wires 5500 LF $ U U095 $3tp,�j}�j.00 4 * Install 2" PVC Conduit 5400 LF $ 5ci .60 S3 6W - 00 5 * Install 3" PVC Conduit 50 LF $106-W $5iarpo cc 6 * Install No. 3 1/2 Pull Box 10 EA $ t'Os l .00 $10'5go-co 7 Install No. 5 Pull Box 2 EA $ 1,3kjq ,00 $a,tygk.u0 8 * Remove and Replace Concrete Pad 100 SF $ t46, $t-i 65A,.00 9 Pothole Street Light Pole Location 23 EA S1,E3U.U0 S-16; .Uo 10 Pothole Utilities Not Shown on Plan 5 EA $ �+l .vo $ b1,al.415.010 I 1 Construction Permit I LS $6,200 $ L9,a00.00 City Council ` 1 — 6 3/7/2023 Exhibit 2 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6017 SADDLEBACK VIEW NEIGHBORHOOD STREET LIGHTING TOTAL BASE BID S U01 , 11T OO The lowest responsible bidder shall be selected based on the total base bid. The City reserves the right to award the Base Bid, and any, all, or none of the add -alternate bid items (if any). * The quantity for this bid item is shown for bid comparison only. This bid item shall not be subject to the "25%" limit as stated in Section 3-2 of the Standard Specifications. The actual amount for this item will be dictated by the actual quantity used, and the Agency reserves the right to increase or decrease the quantity of this item accordingly. t This bid item is considered a Specialty Item per Section 3-2 of the Standard Specifications. TIME FOR COMPLETION OF IMPROVEMENTS AND LIQUIDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within sixty (60) working days after the commencement date stated in the Notice to Proceed. The liquidated damages amount, in lieu of the amount specified in Subsection 6-9 of the Standard Specifications, shall be $3,500 per calendar day. Name of Firm International Line Builders. Inc. dba ILB Electric Signature of BIDDER Title Vice President — unEwranj EjJ rardJ (If an individual, so state. If a firm or co -partnership, state the firm name and give the names of all individual co-partners composing the firm. If a corporation, state legal name of corporation, and names of President, Secretary, Treasurer and Manager, thereof.) City Council 11 — 7 3/7/2023 Exhibit 3 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT 22-6017 SADDLEBACK VIEW NEIGHBORHOOD STREET LIGHTING PROJECT This CONSTRUCTION CONTRACT is made and entered into this 7 h day of March, 2023 by and between the City of Santa Ana, California, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "CITY"), and International Line Builders, Inc. (hereinafter "CONTRACTOR"). WITNESSETH: The CITY and the CONTRACTOR, for the consideration hereinafter named, mutually agree as follows: 1. CONTRACTOR agrees to perform all the work and furnish all the materials at its own cost and expense necessary to construct and complete in a good and workmanlike manner and to the satisfaction of the City Engineer of the CITY, the Saddleback View Neighborhood Street Lighting Project (hereinafter referred to as the "WORK OF IMPROVEMENT") identified in and in accordance with the Contract Documents prepared by the City's Public Works Agency and approved by the City Council. 2. The complete Construction Contract consists of the "Contract Documents" as defined by the Standard Specifications for Public Works Construction and which include the following: • Notice Inviting Bids • Information to Bidders • Bid Proposal • Bid Bond • Contract Form • Contract Bonds • General Provisions • Special Provisions • Technical Provisions and Project Plans • Community Workforce Agreement • Appendices In case of conflict between the Contract Documents, the precedence of documents shall be as established in the Standard Specifications for Public Works Construction. 3. CITY agrees to pay and CONTRACTOR agrees to accept in full payment to complete the WORK OF IMPROVEMENT the sum total amount not to exceed Six Hundred and One Thousand, Nine Hundred and Seventy Seven Dollars and Zero Cents ($601,977.00), as set forth and identified in the BID PROPOSAL, which is attached hereto and incorporated herein as Exhibit "A." The BID PROPOSAL contains a schedule of unit price(s) or lump sum(s) based on approximate quantities only, and the City does not expressly or by implication agree that the actual amount of work will correspond therewith, but reserves the right to increase or decrease the amount of any class or portion of the work or to omit portions of the work as may be deemed necessary or advisable. City Council 11 — 8 —3/7/J o2f83 4. CONTRACTOR agrees to complete the WORK OF IMPROVEMENT within the time specified in the Time for Completion of Improvements section of the BID PROPOSAL (Exhibit "A") including commencing construction within the timeframe therein specified after issuance of a Notice to Proceed. 5. The CONTRACTOR will pay, and will require all subcontractors to pay, all employees on the WORK OF IMPROVEMENT a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations for this work in accordance with applicable State and Federal law. 6. If applicable, the CONTRACTOR shall adhere to the CITY'S Community Workforce Agreement (CWA), a pre -hire collective bargaining agreement, which establishes the labor relations policies and procedures for CONTRACTOR to follow in the crafts persons employed to complete the WORK OF IMPROVEMENT as more fully described in the CWA. The CWA may be found on the City's website at: http://www.santa-ana.org[pwa/documents/CWA.pdf 7. CONTRACTOR shall, after award of this Contract, furnish two bonds to be approved by the CITY, one in the amount of One Hundred Percent (100%) of the Contract price, to guarantee the faithful performance of the work (Performance Bond), and one in the amount of One Hundred Percent (100%) of the Contract price to guarantee payment of all claims for labor and materials furnished (Payment Bond). This Contract shall not become effective until such bonds are supplied to and approved by the CITY. 8. CONTRACTOR shall, prior to the release of the performance and payment bonds or the retention payment, furnish a warranty performance and payment bond (Warranty Bond). Said Warranty Bond shall also be required as a condition of project acceptance. For projects up to Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of Ten Thousand Dollars ($10,000) or Twenty Percent (20%) of the final contract price. For projects above Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of One Hundred Thousand Dollars ($100,000) or Ten Percent (10%) of the final contract price. 9. CONTRACTOR shall, after award of this Contract, furnish Certificates of Liability Insurance and Worker's Compensation Insurance as outlined in the General Provisions, to be approved by the CITY. 10. INDEMNIFICATION. To the fullest extent allowed by law, CONTRACTOR and its Subcontractors hereby agree to defend, indemnify, and hold harmless CITY, its City Council, boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel acceptable to CITY, from and against any liability, claims, actions, costs, damages or losses, including reasonable costs and attorney's fees, for injury, including death to any person or damage to any property, arising directly or indirectly from, or in any manner relating to, any of the following: (i) Performance or nonperformance of the Work of Improvement by CONTRACTOR or its Subcontractors of any lower tier; (ii) Performance or nonperformance by CONTRACTOR or its Subcontractors of any lower tier, of any of the obligations under the Contract Documents; (iii) The construction activities of CONTRACTOR or its Subcontractors of any lower tier, either on the project site or on other properties; (iv) The payment or nonpayment by CONTRACTOR of any of its Subcontractors of any lower tier, for Work of Improvement performed on or off the project site; and (v) Any personal injury, property damage or economic loss to third persons related to and arising from the performance or nonperformance by CONTRACTOR or its Subcontractors of any City Council 11 — 9 -3/7J o2f33 (vi) The indemnity obligations of Subcontractors provided by this Section shall be included in all subcontract documents issued by CONTRACTOR. Nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in favor of CONTRACTOR against CITY or any other Indemnitee. IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract on the day and year first above written. ATTEST: Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney JOHN FUNK Chief Assistant City Attorney RECOMMENDED FOR APPROVAL: NABIL SABA, PE Executive Director Public Works Agency CITY OF SANTA ANA KRISTINE RIDGE City Manager CONTRACTOR: International Line Builders, Inc. NAME:' Matthew Edwards TITLE: Vice President City Council 11 — 10 7J2(: 3, a� EXHIBIT A CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6017 SADDLEBACK VIEW NEIGHBORHOOD STREET LIGHTING BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: International Line Builders. Inc. dba ILB Electric REQUIREMENT: The undersigned bidder declares that they have carefully examined the location of the proposed work, that they have examined the Contract Documents in its entirety and hereby proposes to furnish all material and do all the work required to complete the said work in accordance with said plans (if any) and the specifications for the unit price(s) or lump sum(s) set forth in the following schedule: Item Description Qty Unit Unit Price Amount 1 Install Street Light Pole 23 EA $14. t6l5. oo S _(x7 2 Install Electrical Meter Pedestal 2 EA $ ?, 334.uo $ l (y U u fk oc 3 * Install 3#8 AWG Conductor Wires 5500 LF S (p106 $W.cj-}b.00 4 * Install 2" PVC Conduit 5400 LF S .5ti bo S3 ,300 00i 5 * Install 3" PVC Conduit 50 LF $106.00 $6;a6bc cc 6 *Install No. 3 1/2 Pull Box 10 EA S y,(16q.00 slob o-co 7 Install No. 5 Pull Box 2 EA S 1;3LA .pa $a.utik- o i 8 * Remove and Replace Concrete Pad 100 SF S 11447.3k SL4.1j3,V. W 9 Pothole Street Light Polc Location 23 EA St.CjNS.&0 S3,953t LX' 10 Pothole Utilities Not Shown on Plan 5 EA $ kt,`lI .VO S U,3u5 W 11 Construction Permit 1 LS $6,200 S Lp. 3W UO n I ._en 16 City Council 11 —11 3/7/2023 EXHIBIT A CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6017 SADDLEBACK VIEW NEIGHBORHOOD STREET LIGHTING TOTAL BASE B!D - (yp ` "}T Vp The lowest responsible bidder shall be selected based on the total base bid. The City reserves the right to award the Base Bid, and any, all. or none of the add -alternate bid items (if any). * The quantity for this bid item is shown for bid comparison only. This bid item shall not be subject to the "25%" limit as stated in Section 3-2 of the Standard Specifications. The actual amount for this item will be dictated by the actual quantity used, and the Agency reserves the right to increase or decrease the quantity of this item accordingly. t This bid item is considered a Specialty Item per Section 3-2 of the Standard Specifications. TIME FOR COMPLETION OF IMPROVEMENTS AND LIQUIDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within sixty (60) working days after the commencement date stated in the Notice to Proceed. The liquidated damages amount, in lieu of the amount specified in Subsection 6-9 of the Standard Specifications, shall be S3,500 per calendar day. Name of Firni International Line Builders, Inc. dba ILB Electric Signature of BIDDER Title Vice President — ►.tr�rl.�,rur[.t, (If an individual, so state. If a firm or co -partnership, state the firm name and give the names of all individual co-partners composing the firm. If a corporation, state legal name of corporation. and names of President, Secretary, Treasurer and Manager, thereof.) 2-� 'it, P- I f. City Council 11 — 12 3/7/2023 EXHIBIT 4 COST ANALYSIS CONSTRUCTION OF PROJECT NO. 22-6017: Saddleback View Neighborhood Street Lighting Project Construction Contract $ 601,977.00 Contract Administration, Inspection and Testing $ 90,296.55 Contingencies $ 60,197.70 TOTAL ESTIMATED CONSTRUCTION COSTS 1 $ 752,471.25 City Council 11 — 13 3/7/2023 m � m 2 k W F- LU w _ m a� QE qu >.LU zw «a R zLU %w > 0w a F-2 U� k a « Q !2 §e /( /{ \\ a§ \) )\ %& /\ \\2 p3:§ w % .0 w/\/ 2�// w§#2 Q33a LU Z �2ao 0$$3 � u CL /2 \\� /)\ z\\/ OJ{f 0- LU �7\3 L) /;� w,»/ �*§{ U2a� LLI 0 CL m ( CL � \ \ � � O V \ V \m w w.2 0 0 amm IL § , . § � § , . C*4 � 2 � § m � � \ , . C%j � § � § \ OD N cli 0(.0 N LL Gp q q Q c § o L / � 7 / w \ \ IL F- 0 R F- cn O 2 LL / 0 2 q } u 0 \ Cl) 0 I a / \ z \ o Q n q D C\l � n q j U � Al Public Works Agency www.santa-ana.org/public-works Item # 12 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Construction Contract for Bristol Street and Santa Clara Avenue Traffic Signal Modification AGENDA TITLE Approve an Appropriation Adjustment, and Award a Construction Contract to Elecnor Belco Electric, Inc., in the Amount of $493,244.76 for the Bristol Street and Santa Clara Avenue Traffic Signal Installation Project with an Estimated Project Delivery Cost of $616,555.95 (Project No. 22-6995) (Non -General Fund) RECOMMENDED ACTION 1. Approve an appropriation adjustment recognizing $297,100 in FY 2022-23 Highway Safety Improvement Program, State Grant -Direct funds into the Public Services Street Safety Projects, Improvements Other Than Building expenditure account. (Requires five affirmative votes) 2. Award a construction contract to Elecnor Belco Electric, Inc., the lowest responsible bidder, in accordance with the base bid in the amount of $493,244.76, for construction of the Bristol Street and Santa Clara Avenue Traffic Signal Installation Project, for the term beginning March 7, 2023, and ending upon project completion, subject to non -substantive changes approved by the City Manager and City Attorney. 3. Approve the Project Cost Analysis for a total estimated construction delivery cost of $616,555.95, which includes $493,244.76 for the construction contract; $73,986.71 for contract administration, inspection and testing; and a $49,324.48 project contingency for unanticipated or unforeseen work. 4. Approve an amendment to the FY 2022-23 Capital Improvement Program to include $297,100 in construction funding from Highway Safety Improvement Program grant funds and $320,000 in construction funding from General Funds approved in FY 22- 23 proposed budget for the Bristol Street and Santa Clara Avenue Traffic Signal Modification. DISCUSSION The Public Works Agency's Traffic Engineering Staff received numerous safety concerns from residents regarding the history of vehicle collisions that have occurred at the intersection of Bristol Street and Santa Clara Avenue (Exhibit 1). Engineering staff conducted an analysis of the location, which included review of traffic collision history City Council 12 — 1 3/7/2023 Bristol Street and Santa Clara Avenue Traffic Signal March 7, 2023 Page 2 and a left turn traffic signal warrant analysis. Based on staff's findings, it was determined that the installation of left -turn signal indications for the northbound to westbound and southbound to eastbound directions on the current traffic signal are needed to increase vehicle and pedestrian safety at this intersection. Following the analysis, the location was placed on a traffic signal priority list for funding. In October 2020, the Public Works Agency (PWA) submitted a grant application requesting funding from the Highway Safety Improvement Program (HSIP) grant that is administered by the State of California Department of Transportation. On March 2021, the PWA received confirmation that the application had been successful and that the agency was awarded $297,100 in Highway Safety Improvement Program (HSIP) grant for the project. The grant funds were recognized by the City Council and approved in the FY 2022-23 Capital Improvement Program (CIP). The recommended actions are required to proceed with the traffic signal modification at the Bristol Street and Santa Clara Avenue intersection (Exhibit 2). The scope of work includes installation of asphalt concrete pavement, signage, striping, and new traffic signal systems. Public Outreach and Contractor Participation To provide an opportunity for local vendors to submit bids, a Notice Inviting Bids was advertised in the Orange County Register newspaper on December 20 and December 27, 2022. The project was also advertised on PlanetBids on December 20, 2022, and bids were received electronically via PlanetBids on January 17, 2023. The City notified a total of 346 regional vendors via PlanetBids and 41 vendors requested bidding documents. Bid Results Summary A total of seven bids were received, with all bids being deemed responsive. No bids were received from Santa Ana contractors. RANK BIDDER'S NAME LOCATION BASE BID 1 Elecnor Belco Electric, Inc. Chino, CA $493,244.76 2 Select Electric, Inc. Vista, CA $524,425.00 3 California Professional Engineering, Inc. La Puente, CA $535,358.00 4 MSL Electric, Inc. Anaheim, CA $539,750.00 5 Crosstown Electrical & Data Irwindale, CA $578,779.00 6 DBX, Inc. Temecula, CA $654,012.00 7 International Line Builders, Inc Corona, CA $671,178.00 City Council 12 — 2 3/7/2023 Bristol Street and Santa Clara Avenue Traffic Signal March 7, 2023 Page 3 Elecnor Belco Electric, Inc., submitted the lowest responsive base bid in the amount of $493,244.76 (Exhibit 3). Based on the bid analysis and a contractor's reference check, staff recommends awarding the construction contract to Elecnor Belco Electric, Inc., in the amount bid (Exhibit 4). Elecnor Belco Electric, Inc. has successfully completed work for the City dating back to 2015 and most recently in 2020 when they completed the bike lane project on Flower Street from Warner Avenue to Civic Center, and associated traffic signal modifications. Other projects completed by Elecnor Belco Electric, Inc. include traffic signal installation, modifications at various locations, and crosswalk upgrades throughout the City. Staff is confident that this contractor will continue to perform and produce quality work for the City. Project Delivery To deliver a complete project, in addition to the construction contract, the estimated total project delivery cost includes construction administration, inspection, and testing, along with an allowance for contingencies to account for unexpected or unforeseen conditions. Construction administration and inspection includes the following: construction management; implementation of the City's Community Workforce Agreement; inspection of the Contractor's work to ensure contract compliance, workmanship, and quality; and material testing. As indicated in the Cost Analysis (Exhibit 5) and as summarized in the table below, the estimated total construction delivery cost of the project is $616,555.95. Construction Contract $493,244.76 Construction Administration, Inspection, and Testing $73,986.71 Contingencies $49,324.48 ESTIMATED CONSTRUCTION DELIVERY COST $616,555.95 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended actions are exempt from further review. Categorical Exemption Environmental Review No. ER- 2022-67 was filed for this project. FISCAL IMPACT As indicated in the Cost Analysis, the estimated total construction delivery cost of the project is $616,555.95, which includes construction, contract administration, inspection, testing, and an authorized contingency. With the approval of the appropriation adjustments, the total funding needed to deliver the project will be available for expenditure (Exhibit 6) in FY 22-23. City Council 12 — 3 3/7/2023 Bristol Street and Santa Clara Avenue Traffic Signal March 7, 2023 Page 4 Approve an appropriation adjustment recognizing $297,100 in FY 2022-23 Highway Safety Improvement Program, State Grant -Direct funds (No. 14717002-52025) Highway into the Public Services Street Safety Projects, Improvements Other Than Building expenditure (No. 14717611-66220). Fiscal Year Accounting Unit- Fund Accounting Unit, Amount Account # Description Account Description APPROPRIATION ADJUSTMENT Federal Aid Public Services —Street 2022-23 14717612-66220 Safety Safety Projects, $297,100 (Prof. 22-6995) Improvement Improvements Other Program Than Building Existing Budget PW-Traffic/Trans — 2022-23 01117620-66220 General Service Enhancement, $320,000 (Proj. 22-6995) Fund Improvements Other Than Building Total: $617,100 EXHIBIT(S) 1. Location Map 2. Construction Plans 3. Bid Proposal 4. Construction Contract 5. Cost Analysis 6. CIP Worksheet Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency Approved By: Kristine Ridge, City Manager City Council 12 — 4 3/7/2023 EXHIBIT 1 SANTA ANA PW1 Project No. 22-6995: Bristol Street and Santa Clara Avenue Traffic Signal Modification PUBLIC WORKS AGENCY City Council 12 — 5 3/7/2023 uj Q J Q d r 0 a 0 a N a N a N a N a C' W Z a V) V) N N N N Z Q W ULLI N N N N N N 2 W N N N z z LL13 3 W J aM N rn Q N N Z p W v Q I i v p J v m p m � t v LA v N W Q Z W J W J W J W J W J W J J Q J U M N M N a Z Q O O N ~ O Q N ~ N d , O , O a U Q w a M w a Q w7 a M w a N w v N H ti — > H v N r I--ti — r H p z de (ale �000 vi w J O a c� z W p O O cr O_ a' a N U_ J LL Z VI O Z U o } VI r � J O a' a J O Q Z w 2 a g CA W I O W (, a w 0 � N W z V) O N a a m O W O J 2 Z Z W O O W p p o a W Z J Z O Q U O W N m J Ld p W = J J W Z J m r � Q O J a 3 N J Q Z V) N Q N W N N H = LLJ E cr z Z Q O W Q Z V) J O W � W p p Z J W W O J a J U 0 z J CA J ffW cce) v co x OD � v I v Ln EXHIBIT 3 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: Elecnor Belco Electric, Inc. REQUIREMENT: The undersigned bidder declares that they have carefully examined the location of the proposed work, that they have examined the Contract Documents in its entirety and hereby proposes to furnish all material and do all the work required to complete the said work in accordance with said plans (if any) and the specifications for the unit price(s) or lump sum(s) set forth in the following schedule: Item Description Qty Unit Unit Price Amount 1 Traffic Signal Modification 1 LS $ $ ZG,3,000 24.3,E 2 Install Video Detection System at Bristol St Santa Clara Ave 1 LS $ yZ,goo $ yZI300 and 3 * Install 2" PVC Conduit per Plan 100 LF $ $ '7� 7.000 4 * Install 3" PVC Conduit per Plan 100 LF $ $ 100 10,000 5 * Install 4" PVC Conduit per Plan 500 LF S� S y D, 000 6 * Install No. 6 Pull Box 6 EA $I,ZOrJ 7 * Install No. 6E Pull Box 2 EA $sgs ' $ 110 ' 8 * Remove and Replace Concrete 100 SF $ $ Sidewalk o .50 (0q 50 9 Cold Mill (2") 5900 SF $ $(p 5 ZZS 10 Asphalt Rubber Hot Mix (ARHM) 74 TN $ 703•24 11 Temporary Overhead Wiring at 1 LS $ $ Bristol St and Santa Clara Ave t(v'soo ((p' S00 12 Pothole Pole Locations for Utility Conflicts 8 EA $ �� $�' g� 13 Pothole Utility Not Shown on Plans 4 EA $ Q SO $ 400 IV] P-1 of 2-16 City Council 12 — 8 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) Item Description Qty Unit Unit Price Amount 14 Signing and Striping 1 LS $ 16, 130 $ to, k30 15 Project Advertising Sign(s) 2 EA $ 11000 $ 2,000 16 Construction Permit(s) 1 LS $6,500 $ b 500 TOTAL BASE BID — BID ITEMS 1-16 The lowest responsible bidder shall be selected based on the total base bid. The City reserves the right to award the Base Bid, and any, all, or none of the add -alternate bid items (if any). * The quantity for this bid item is shown for bid comparison only. This bid item shall not be subject to the "25%" limit as stated in Section 3-2 of the Standard Specifications. The actual amount for this item will be dictated by the actual quantity used, and the Agency reserves the right to increase or decrease the quantity of this item accordingly. f This bid item is considered a Specialty Item per Section 3-2 of the Standard Specifications. TIME FOR COMPLETION OF IMPROVEMENTS AND LIQUIDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within sixty (60) working, days after the commencement date stated in the Notice to Proceed. The liquidated damages amount, in lieu of the amount specified in Subsection 6-9 of the Standard Specifications, shall be $3,200 per calendar day. Name of Firm Elecnor Belco Electric, I Signature of BIDDER Title Vice President , John Wont; (If an individual, so state. If co -partnership, state the firm name and give the names of all individual co-partners composing the firm. If a corporation, state legal name of corporation, and names of President, Secretary, Treasurer and Manager, thereof.) Alberto Garcia De Los Angeles / President John Wong / Vice President Pedro Enrile / Secretary Jeroni Gervilla / Treasurer '*13,2-`(y .% 12_7 of 12_ 1 6. City Council 12 — 9 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) BIDDER'S STATEMENT BIDDER understands and agrees that this Bid Proposal, Contract Documents and subsequent Construction Contract Agreement shall constitute the entire agreement between BIDDER and the AGENCY only after it has been accepted by the City Council, endorsed by the Clerk of the Council with her signature and official seal noting hereon the action of approval of the Council, signed by the Public Works Agency Executive Director or his/her duly authorized agent, and signed by the City Attorney, denoting his approval of the form of this document, and its execution, and when it or an exact copy of it has been either delivered to BIDDER or deposited with the United States Postal Service properly addressed to the BIDDER with the correct postage affixed thereto. BIDDER further agrees that upon delivery (as defined above) of the accepted agreement he/she will furnish AGENCY all required bonds and certificate of liability insurance within ten (10) business days or the funds, check, draft, or BIDDERS bond substituted in lieu thereof accompanying this proposal shall become the property of the AGENCY and shall be considered as payment of damages due to the delay and other causes suffered by AGENCY because of the failure to furnish the necessary bonds and because it is distinctly agreed that the proof of damages actually suffered is difficult to ascertain; otherwise said funds, check, drafts, or BIDDER'S bond substituted in lieu thereof shall be returned to the undersigned. BIDDER understands that a bid is required for the entire work, the estimated quantities set forth in the bid schedule are solely for the purpose of comparing bids, and that final compensation under the contract will be based upon the actual quantities of work satisfactorily completed. The BIDDER also certifies that the bid is a balanced bid. In accordance with Section 7028.15 of the California Business and Professions Code, the undersigned certifies under penalty of perjury that the foregoing is true and correct. Name of Firm Elecnor Belco Electric. Inc. Signature of BIDDER Title Vice President (If an individual, so state. I fi all individual co-partners compost and names of President, Secretary, , John Wong or -partnership, state the firm name and give the names of ig a firm. If a corporation, state legal name of corporation, Treasurer and Manager, thereof.) Alberto Garcia De Los Angeles / President John Wong / Vice President Pedro Enrile / Secretary Jeroni Gervilla / Treasurer P 3 ofP i6 City Council 12 - 10 3/7/2023 UNANIMOUS WRITTEN CONSENT IN LIEU OF 2021 ANNUAL MEETING OF THE BOARD OF DIRECTORS OF ELECNOR BELCO ELECTRIC, INC. January 1, 2021 The undersigned, being all of the members of the Board of Directors (the "Board") of Elecnor Belco Electric, Inc., a California corporation (the "Company"), in lieu of holding a meeting of the Board, hereby take the following actions and adopt the following resolutions by unanimous written consent: WHEREAS, the Board has determined that it is in the Company's best interests to appoint a revised slate of Officers of the Company. NOW, THEREFORE, BE IT RESOLVED, that the following persons be, and hereby are, elected to the offices set forth opposite their respective names, to hold such offices until their respective successors are elected and qualified at or before the next annual meeting of the Board, or until their earlier respective deaths, resignations or removals: NAMES Alberto Garcia De Los Angeles Jeroni Gervilla Roger DeVito Pedro Enrile Leonardo Sancho Frances John Wong OFFICE President and Chief Executive Officer Chief Financial Officer Senior Vice President, General Counsel and Assistant Secretary Secretary Vice President Vice President for Construction FURTHER RESOLVED, that Alberto Garcia De Los Angeles, Jeroni Gervilla, Alberto Garcia and Roger DeVito in their respective capacities (listed above) subject to such supervisory powers of the Board of Directors, hereby are authorized and directed to perform all the duties commonly incident to that office; shall have authority to execute in the name of the Company contracts, leases and other written instruments to be executed by the Company; and, shall perform such other duties as the Board of Directors may from time to time determine. FURTHER RESOLVED, that the President and Chief Executive Officer may delegate authority to any Chief Financial Officer or Chief Operating Officer or Senior Vice President or Vice President as and within their authority levels as set forth in the Company's Bylaws, as the same may be amended from time to time; FURTHER RESOLVED, that Roger DeVito, in his capacity of Senior Vice President, or Leonardo Sancho Frances in his capacity of Vice President are hereby authorized and directed to: 1. Negotiate, sign, amend and terminate agreements in connection with the purpose of the Company, for all contracts up to $250,000.00, and acting jointly with Alberto Garcia De Los Angeles or Jeroni Gervilla for all contracts in amounts greater than $250,000.00. City Council 12 —11 3/7/2023 2. Execute, amend and finalize bid proposals in connection with the purpose of the Company, for all proposals up to $1,000,000.00, and acting jointly with Alberto Garcia De Los Angeles or Jeroni Gervilla for all proposals in amounts greater than $1,000,000.00. 3. Acting jointly with Alberto Garcia De Los Angeles or Jeroni Gervilla, execute, amend and finalize purchase orders for materials and equipment in connection with the purpose of the Company. 4. Acting jointly with Alberto Garcia De Los Angeles or Jeroni Gervilla, execute, amend and terminate agreements for the lease of real estate to be used as offices or job related temporary yards. 5. Acting jointly with Alberto Garcia De Los Angeles or Jeroni Gervilla, execute, amend and terminate insurance and/or bid bonds arrangements in connection with the purpose of the Company. 6. Acting jointly with Alberto Garcia De Los Angeles or Jeroni Gervilla, hire, suspend, impose sanctions and dismiss the administrative personnel of the Company, setting forth their employment terms and conditions, obligations and remuneration. 7. Acting jointly with Alberto Garcia De Los Angeles or Jeroni Gervilla, settle and claims on behalf of the Company. AND IT IS FURTHER RESOLVED, that all actions heretofore taken by the officers of the Company on behalf of and in the name of the Company, relating to the conduct of the business of the Company, the expenditure of money, the making of contracts and all other acts taken or omitted in the performance of their duties to the Company be, and the same hereby are, in all respects, approved, ratified and affirmed, as of the date taken, done or omitted, respectively. The actions taken by the Board Consent shall have the same force and effect as if taken by the undersigned at a meeting of the Board of Directors, duly called and constituted pursuant to the Bylaws of the Company and the laws of the State of California. This Board Consent may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. IN WITNESS WHEREOF, the undersigned, being all of the members of the Board of Directors of Elecnor Belco Electric, Inc,, have executed these actions by written consent as of the date first written ---- 1 Luis Alcibar, Director Alexander Arrola, Director City Council 12 — 12 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) CONTRACTOR'S LICENSING AND REGISTRATION STATEMENT The undersigned contractor, or corporate officer, declares under penalty of perjury that he/she and all his/her subcontractors are registered with the State of California Department of Industrial Relations (DIR), and that the following is true and correct. Contractor's Name: Elecnor Belco Electric. Inc. Business Address: 14320 Albers Way Chino, CA 91710 Business E-Mail Address: jwong@elecnor.com Telephone: (909) 993-5470 State Contractor's License No. and Class: 738518 A, B, C-10 License Expiration Date: 7/31/2023 State Dept. of Industrial Relations (DIR) Registration No.: 1000004804 State Dept. of Industrial Relations (DIR) Registration Expiration.Date: 6/30/2023 Signed: Title: Vi ,John W City Council 2 — 13 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) PREVAILING WAGE COMPLIANCE AND MONITORING STATEMENT Contractor is aware of the requirements of California Labor Code Section 1720, et seq., as well as California Code of Regulations, Title 8, Section 16,000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. Since the services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Contractor agrees to fully comply with such Prevailing Wage Laws. City shall provide Contractor with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Contractor shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the services available to interested parties upon request, and shall post copies at the Contractor's principal place of business and at the project site. Contractor shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. The undersigned certifies that the foregoing is true and correct. Name of Firm Elecnor Belco Electric. Inc. Signature of BIDDER John Wong Title Vice President (if an individual, so state) City Council 12 — 14 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) LIST OF SUB -CONTRACTORS Section 4100 et. seq. of the Public Contract Code requires listing of all subcontractors with the bid for all subcontract work exceeding the following amount: o Streets, highways including bridge projects: '/2% of the bid or $10,000, whichever is greater o Buildings, parks, or other projects: '/z% of the bid Section 1725.5 of the Public Contract Code requires all Subcontractors be registered with the State Department of Industrial Relations (DIR). BIDDER proposes to subcontract certain portions of the work to the firms listed below: Name )9P&-9,It4C. License #/Exp. , $ ,SC J ExP : S I S I / 2'i DIR Reg. #/Exp. loopm353 J vo ia!''3012-5 Location ,CA Phone [ SG2) Type Of Work C iy«�StOENAt.�c,Co�,�L. Amount $ U'Lcb Name QCS License #/Exp tUftl `l l544o e?A? = 7/Jt 1Z3 DIR Reg. #/Exp. 1OG=E4-g`1 J CY•Q : G1$4fZ3 License # Location Up Phone ('%Z)Vt-050'1 Type Of Work a&rx.�C� 4-1,mwo(i Amount $ po Name License #/Exp. DIR Reg. #/Exp. License # Location Phone Type Of Work Amount $ W/ , John Wong / Vice President Si atu Bidder Name License #/Exp. DIR Reg. #/Exp. Location Phone Type Of Work Amount $ Name License #/Exp. DIR Reg. #/Exp. License # _ Location Phone Type Of Work Amount $ Name License #/Exp. DIR Reg. #/Exp. License # Location Phone Type Of Work Amount $ City Council 12 — 15 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) REFERENCES The following are the names, addresses, and telephone numbers for THREE public agencies for which the BIDDER has performed similar work within the past three years. 1. City of Glendale / 633 E Broadway Room 205 Glendale, CA 91206 Name and Address of Owner. Sarkis Oganesyan / (818) 548-3945 Name and Telephone Number of person familiar with project. $2,844,613 Signal Modifications February 2021 Contract Amount Type of Work 2. City of Palm Desert / 73-510 Fred Waring Dr Palm Desert, CA 92260 Date Completed Name and Address of owner. Randy Brown / (760) 346-0611 Name and Telephone Number of person familiar with project. $602,259 Traffic Signal Modifications August 2020 Contract Amount Type of Work 3. City of Huntington Park / 6550 Miles Ave, Huntington Park, CA 90255 Name and Address of owner. Cesar Roldan / (323) 584-6320 Date Completed Name and Telephone Number of person familiar with project. $1,013,928 Signal Synchronization & Bus Improvements April 2020 Contract Amount Type of Work Date Completed The following are the names, addresses, and telephone numbers of all brokers and sureties from whom BIDDER intends to procure insurance and bonds. Willis Towers Watson 10 State House Square Floor 11 Hartford, CT 06103 Erin Kiernan / (860) 843-5404 Liberty Mutual Insurance Company 175 Berkeley Street Boston, MA 02116 (610)832-8240 City Council ° - 2 — 16 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) ADDITIONAL REFERENCES The following are the names, addresses, and telephone numbers for THREE public agencies for which the BIDDER or Subcontractor has performed similar work in the past five years. City of Palmdale / 38250 Sierra Hwy Palmdale, CA 93550 Name and Address of Owner. Mike Shahbakhti / (661) 267-5310 Name and Telephone Number of person familiar with project. $360,815 Traffic Modifications Contract Amount Type of Work 2. City of Rancho Cucamonga / 10500 Civic Center Dr Rancho Cucamonga, CA 91730 June 2021 Date Completed Name and Address of owner. Sandra Salazar / (909) 774-4068 Name and Telephone Number of person familiar with project. $101,307 Traffic Signal Modifications November 2020 Contract Amount Type of Work Date Completed 3. City of Fontana / 8353 Sierra Avenue Fontana, CA 92335 Name and Address of owner. Sid Lambert / (909) 350-7678 Name and Telephone Number of person familiar with project. $1,215,629 Traffic Signal & Fiber Optic Installations Contract Amount Type of Work September 2020 Date Completed The following are the names, addresses, and telephone numbers of all brokers and sureties from whom BIDDER intends to procure insurance and bonds. Willis Towers Watson 10 State House Square Floor 11 Hartford, CT 06103 Erin Kiernan / (860) 843-5404 Liberty Mutual Insurance Company 175 Berkeley Street, Boston, MA 02116 (610)832-8240 City Council of - 2 — 17 3/7/2023 F •F �i O tl� ++,N p d � C Iaa.�o d G M A d. p H� o P N 6 M o o0 .� T T N v,�„ov°�o„`O, O, N �r a� O ^ O pO +Y oN. 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O 1O 00 O �D 01 O �D M �O G o0 �--� �D 01 �D G M N ID �O N �O N 110 M �O M M M M -,t r- 7 GN � O kn -,t kn n In O �O N 1,0 kn �D �'D �O l- �O l� O O i O O O O O O O O i O O i O i.999R.9.9999.999999999999999 O O O O City Council 12 — 38 3/7/2023 o 00 CD o O O O o O o o o Wn o O O O M �D �--� O O O O O O O O 00 O O O 0 0 O, N 0 0 0 0 0 00 m O m O N 0 O O O O N Vl O 00 0 0 0 7 N 00 T O [- O H O O O O�00 00 t O Vl l'N p 00 �D N M "O Q 0O 00 (V p [� N tt I vl � ,--� O �D N N C; 00 4� M kn N M �--� l0 b4 N -It00 N --� 6A 64 64 64 64 64 69 64 6A 6A 6A 6A W.)69 69 ¢ Z z a z w H H a U¢ x U O O W w1:4 gel �wUp Zd UUUF~��U�¢dzawUaa. d ¢OO 40404 w P4 WwQ U Q OU„UzF"j1 a UUUa UwF"w�0 Uzz UawdUp;w W W C4OCaw aaaU w z wwwUP4UwwwU WW4in¢wW W-- a w � --� a0� W 'nxa04°xxz> x°¢wk'°0 �W Wz > w z U w w w U w Q w a a 0> O x W O �codo�aawwF axoaPwzzxw¢¢ o03U-� wax x ¢¢w � � 04 ] H xx Aa GHQ Wwz z¢ aazz�w o w 9 0 OQ =Oz Oz—adzwWQ z w °Q¢>`�a�zzz0Q°zaw�zoa¢ •a a, 1:4 Z Orx w0.w aOw Hx°� x U�p4F w wH wad�"z3z z wW H dH�dxowzH raid daaw3�114>0z zz z ��EFa �OowOH H W.- zzU w> - w�O�,,nGC�z x UQOOdr�v� Ux ¢ a E" a W x x~ x d- z a w ti xx ¢ ¢ �"ooawwHc? Uaow O w O j• 0 C7 w U U> o xHCaHz H-U x�? wv,Waw�� w ° o��z¢~ wd¢ > U aCU UU ll UQU WQ�IZQOa'rs:d'I) R>QO�QZ zz�xa a <z >�"A U ¢ O qa wQ0 wUa UW odUaxrxz`nozZv�`�' Qa:w w W W W W W F OzdF p4(� zF- > �F QdUv��wz W z wQ l I OQ Qa a �-C3: �U �? °o Uv�ZC) -w : x i UU -I�IrIf11lilinlalaI(El(lolololololololololololo 0 0 0 0 0 0 0 0 0 0 0 tMI�MI7I�t,ItI�II1'ImI-!ItI-tI-!I�I�I"I� City Council 12 - 39 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) NON-DISCRIMINATION CERTIFICATE The undersigned contractor or corporate officer, during the performance of this contract, certifies as follows: 1. The Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment without, regard to their race, color, religion, sex, or national origin. Such action shall include, 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 Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2. The Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. 3. The Contractor shall send to each labor union or representative of workers with which he/she has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Contractor shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 5. The Contractor shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his/her books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation, to ascertain compliance with such rules, regulations, and orders. 6. In the event of the Contractor's non-compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, the contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Execution Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law. City Council — 40 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) 7. The Contractor shall include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontract or purchase order as the administering agency may direct as means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event the Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request that the United States enter into such litigation to protect the interests of the United States. 8. Pursuant to California Labor Code Section 1735, as added by Chapter 643 Stats. 1939, and as amended, no discrimination shall be made in the employment of persons upon public works because of race, religious creed, color, national origin, ancestry, physical handicaps, mental condition, marital status, or sex of such persons, except as provided in Section 1420, and any contractor of public works violating this Section is subject to all the penalties imposed for a violation of the Chapter. Z Signed: 1A,John Wong "� Title: Vice 41 �'v Firm: Elecnor Be LZ 7. ectric, Inc. Date: 1-9-2023 City Council — 41 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) STATEMENT REGARDING APPRENTICESHIP REQUIREMENTS TIREMENTS The undersigned BIDDER is familiar with the requirements of Section 1777.5 of the State Labor Code regarding employment of apprentices, and understands that contractors on contracts exceeding $30,000 or 20 working days shall: 1. Apply to the joint apprenticeship committee administering the apprenticeship standards of the craft or trade in the area of the site of the public work for a certificate approving the contractor under the apprenticeship standards for the employment and training of apprentices in the area or industry affected. 2. Employ the number of apprentices or the ratio of apprentices to journeymen stipulated in the apprenticeship standards. 3. Contribute to the fund or funds in each craft or trade in which he/she employs journeymen or apprentices on the public work, in the same amount or upon the same basis and in the same manner as the other contractors, except contractors not signatory to the trust agreement shall pay a like a unt to the California Apprenticeship Council. Signed: John Wong Title: V Firm: Elecnor Belco Electric, Inc. Date: 1-9-2023 City Council — 42 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) STATEMENT REGARDING "ANTI -KICKBACK" RE UIREMENTS The undersigned is submitting this proposal for performing by contract the work required by these bid documents, agrees to comply with the Copeland "Anti -Kickback" Act (18 USC 74) as supplemented in the Department of Labor regulations (29 CFR, Part 3). This act provides that each contractor or subcontractor shall be prohibited from inducing, by any means, any person employed in the construction or repair of public work, to give up any part of the compensation to which he/she is otherwiseent . Signed: / V , John Wong Title: Vice Firm: Elecnor Bc1caL-k0ric, Inc. Date: 1-9-2023 City Council — 43 3/7/2023 CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) PUBLIC CONTRACT CODE SECTION 10162 OUESTIONNAIRE In conformance with Public Contract Code Section 10162, the BIDDER shall complete, under penalty of perjury, the following questionnaire: Has the BIDDER, any officer of the BIDDER, or any employee of the BIDDER who has a proprietary interest in the BIDDER, ever been disqualified, removed, or otherwise prevented from bidding on, or completing a federal, state, or local government project because of a violation of law or a safety regulation? Yes No X If the answer is yes, explain the circumstances in the following space. City Council 12 — 44 3/7/2023 EXHIBIT 4 CITY OF SANTA ANA CONSTRUCTION CONTRACT PROJECT 22-6995 BRISTOL STREET AND SANTA CLARA AVENUE TRAFFIC SIGNAL MODIFICATION This CONSTRUCTION CONTRACT is made and entered into this 7'4 day March, 2023 by and between the City of Santa Ana, California, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "CITY"), and Elecnor Belco Electric, Inc. (hereinafter "CONTRACTOR"). WITNESSETH: The CITY and the CONTRACTOR, for the consideration hereinafter named, mutually agree as follows: 1. CONTRACTOR agrees to perform all the work and furnish all the materials at its own cost and expense necessary to construct and complete in a good and workmanlike manner and to the satisfaction of the City Engineer of the CITY, the Bristol Street and Santa Clara Avenue Traffic Signal Modification Project (hereinafter referred to as the "WORK OF IMPROVEMENT") identified in and in accordance with the Contract Documents prepared by the City's Public Works Agency and approved by the City Council. 2. The complete Construction Contract consists of the "Contract Documents" as defined by the Standard Specifications for Public Works Construction and which include the following: • Notice Inviting Bids • Information to Bidders • Bid Proposal • Bid Bond • Contract Form • Contract Bonds • General Provisions • Special Provisions • Technical Provisions and Project Plans • Community Workforce Agreement • Appendices In case of conflict between the Contract Documents, the precedence of documents shall be as established in the Standard Specifications for Public Works Construction. 3. CITY agrees to pay and CONTRACTOR agrees to accept in full payment to complete the WORK OF IMPROVEMENT the sum total amount not to exceed Four Hundred Ninety-three Thousand Two Hundred Forty -Four Dollars and Seventy-six Cents ($493,244.76), as set forth and identified in the BID PROPOSAL, which is attached hereto and incorporated herein as Exhibit "A." The BID PROPOSAL contains a schedule of unit price(s) or lump sum(s) based on approximate quantities only, and the City does not expressly or by implication agree that the actual amount of work will correspond therewith, but reserves the right to increase or decrease the amount of any class or portion of the work or to omit portions of the work as may be deemed necessary or advisable. City Council 12 — 45 3/7/2023 rev. 09/01/2017 Page 1 of 3 4. CONTRACTOR agrees to complete the WORK OF IMPROVEMENT within the time specified in the Time for Completion of Improvements section of the BID PROPOSAL (Exhibit "A") including commencing construction within the timefraine therein specified after issuance of a Notice to Proceed. 5. The CONTRACTOR will pay, and will require all subcontractors to pay, all employees on the WORK OF IMPROVEMENT a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations for this work in accordance with applicable State and Federal law. 6. If applicable, the CONTRACTOR shall adhere to the CITY'S Community Workforce Agreement (CWA), a pre -hire collective bargaining agreement, which establishes the labor relations policies and procedures for CONTRACTOR to follow in the crafts persons employed to complete the WORK OF IMPROVEMENT as more fully described in the CWA. The CWA may be found on the City's website at: hqp://www.santa-ana.org/pwa/documents/CWA.pdf 7. CONTRACTOR shall, after award of this Contract, furnish two bonds to be approved by the CITY, one in the amount of One Hundred Percent (100%) of the Contract price, to guarantee the faithful performance of the work (Performance Bond), and one in the amount of One Hundred Percent (100%) of the Contract price to guarantee payment of all claims for labor and materials furnished (Payment Bond). This Contract shall not become effective until such bonds are supplied to and approved by the CITY. 8. CONTRACTOR shall, prior to the release of the performance and payment bonds or the retention payment, furnish a warranty performance and payment bond (Warranty Bond). Said Warranty Bond shall also be required as a condition of project acceptance. For projects up to Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of Ten Thousand Dollars ($10,000) or Twenty Percent (20%) of the final contract price. For projects above Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of One Hundred Thousand Dollars ($100,000) or Ten Percent (10%) of the final contract price. 9. CONTRACTOR shall, after award of this Contract, furnish Certificates of Liability Insurance and Worker's Compensation Insurance as outlined in the General Provisions, to be approved by the CITY. 10. INDEMNIFICATION. To the fullest extent allowed by law, CONTRACTOR and its Subcontractors hereby agree to defend, indemnify, and hold harmless CITY, its City Council, boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel acceptable to CITY, from and against any liability, claims, actions, costs, damages or losses, including reasonable costs and attorney's fees, for injury, including death to any person or damage to any property, arising directly or indirectly from, or in any manner relating to, any of the following: (i) Performance or nonperformance of the Work of Improvement by CONTRACTOR or its Subcontractors of any lower tier; (ii) Performance or nonperformance by CONTRACTOR or its Subcontractors of any lower tier, of any of the obligations under the Contract Documents; City Council 12 — 46 3/7/2023 Page 2 of 3 (iii) The construction activities of CONTRACTOR or its Subcontractors of any lower tier, either on the project site or on other properties; (iv) The payment or nonpayment by CONTRACTOR of any of its Subcontractors of any lower tier, for Work of Improvement performed on or off the project site; and (v) Any personal injury, property damage or economic loss to third persons related to and arising from the performance or nonperformance by CONTRACTOR or its Subcontractors of any lower tier, of the Work of Improvement. (vi) The indemnity obligations of Subcontractors provided by this Section shall be included in all subcontract documents issued by CONTRACTOR. Nothing in the Contract Documents shall be construed to give rise to any implied right of indemnity in favor of CONTRACTOR against CITY or any other Indemnitee. IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract on the day and year first above written. ATTEST: Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By; �' �. JOHN FUNK Chief Assistant City Attorney RECOMMENDED FOR APPROVAL: NABIL SABA, PE Executive Director Public Works Agency CITY OF SANTA ANA KRISTINE RIDGE City Manager City Council 12 — 47 Pam/ 3 Exhibit A CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) BID PROPOSAL TO: CITY COUNCIL OF THE CITY OF SANTA ANA FROM: Fleenor Belco Electric, Inc. REQUIREMENT: The undersigned bidder declares that they have carefully examined the location of the proposed work, that they have examined the Contract Documents in its entirety and hereby proposes to furnish all material and do all the work required to complete the said work in accordance with said plans (if any) and the specifications for the unit price(s) or lump sum(s) set forth in the following schedule: Item Description Qty Unit Unit Price Amount 1 Traffic Signal Modification 1 LS $ $ Z(.3,000 2.3,000 2 Install Video Detection System at Bristol St Santa Clara Ave 1 LS $ y2,3oo $ 42 'Do and 3 * Install 2" PVC Conduit per Plan 100 LF $ $ 'jp 7,000 4 * Install 3" PVC Conduit per Plan 100 LF $ $ l00 10,000 5 * Install 4" PVC Conduit per Plan 500 LF S� S 000 yD, 6 * Install No. 6 Pull Box 6 EA $1�205 'I,Z30 7 * Install No. 6E Pull. Box 2 EA $ Sgs it $ 110 ' 8 * Remove and Replace Concrete 100 SF $ $ Sidewalk (oq .50 (or{SO 9 Cold Mill (2") 5900 SF $ $ 2 •�5 1GAS 10 Asphalt Rubber Hot Mix (ARHM) 74 TN $ 70 -24 Abr� 11 Temporary Overhead Wiring at 1 LS $ $ Bristol St and Santa Clara Ave k(o'Soo ((o,S� 12 Pothole Pole Locations for Utility Conflicts 8 EA $ o� $(o,g00 13 Pothole Utility Not Shown on Plans 4 EA $QS) $ 400 City Council 12 - 48 3/7/2023 Exhibit A CITY OF SANTA ANA PROPOSAL PROJECT NO.: 22-6995 BRISTOL ST AND SANTA CLARA AVE TRAFFIC SIGNAL MODIFICATION FEDERAL PROJECT NO.: HSIPL 5063(204) Item Description Qty Unit Unit Price Amount 14 Signing and Striping 1 LS $ 16, t3o $ to, k30 15 Project Advertising Sign(s) 2 EA $ 11000 $ 2,000 16 Construction Permit(s) 1 LS $6,500 $ b s00 TOTAL BASE BID — BID ITEMS 1-16 �t"1 The lowest responsible bidder shall be selected based on the total base bid. The City reserves the right to award the Base Bid, and any, all, or none of the add -alternate bid items (if any). * The quantity for this bid item is shown for bid comparison only. This bid item shall not be subject to the "25%" limit as stated in Section 3-2 of the Standard Specifications. The actual amount for this item will be dictated by the actual quantity used, and the Agency reserves the right to increase or decrease the quantity of this item accordingly. f This bid item is considered a Specialty Item per Section 3-2 of the Standard Specifications. TIME FOR COMPLETION OF IMPROVEMENTS AND LIQUIDATED DAMAGES The undersigned bidder hereby proposes to complete the Work for the total base bid amount shown above, within sixty (60) working days after the commencement date stated in the Notice to Proceed. The liquidated damages amount, in lieu of the amount specified in Subsection 6-9 of the Standard Specifications, shall be $3,200 per calendar day. Name of Firm Elecnor Belco Electric, Signature of BIDDER Title Vice President ,John W (If an individual, so state. If fi�co-partnership, state the firm name and give the names of all individual co-partners composing the firm. If a corporation, state legal name of corporation, and names of President, Secretary, Treasurer and Manager, thereof.) Alberto Garcia De Los Angeles / President John Wong / Vice President Pedro Enrile / Secretary Jeroni Gervilla / Treasurer Pz OCR 16 City Council 12 — 49 3/7/2023 EXHIBIT 5 COST ANALYSIS CONSTRUCTION OF PROJECT NO. 22-6995: Bristol ST. and Santa Clara Ave Traffic Signal Modification Construction Contract $ 493,244.76 Contract Administration, Inspection and Testing $ 73,986.71 Contingencies $ 49,324.48 TOTAL ESTIMATED CONSTRUCTION COSTS 1 $ 616,555.95 City Council 12 — 50 3/7/2023 co _H _m 2 X w w y 0 m O N y N .0 a m U G L N Lu .2 LU Z H q) LU —) .q) 0 O� IL Y U OT M N F N H NC* uJ LL O 4 Q 0 Z Q Z c LU ZLL 0 z LU >� 1 O OC 01 r a H ~ _d i � Vw U c IL w .s Q � 1 V L [ V LU O m c m Q cB U � � O O w w J a o w z a� a� F— F- OO OO i LU c LiJ Q Q i 7 U U O ° O QY (E (E amcn CL -.KZ J H O M O O O N O O O O N O 1- n } N a) LL Cl)N <O 0 _ J LL w O oH N w a m w ~ Z CDa LL LL O w U O Z 0) O W N O N ti M U C O U b� Community Development Agency santa-ana.org/community-development Item # 13 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Affordable Housing Project at 1411 N Broadway AGENDA TITLE: Approve a Loan Agreement with North Broadway Housing Partners LP (C/O Jamboree Housing Corporation and WISEPIace) for a total of $5,256,327 for the Development of the WISEPIace Permanent Supportive Housing Project Located at 1411 N Broadway; Approve a Subordination Agreement with Bank of America as the Senior Lender; Approve Two (2) Subordination Agreements with the County of Orange and the Orange County Housing Finance Trust, Respectively, as Junior Lenders (Non -General Fund) RECOMMENDED ACTION 1. Authorize the City Manager to execute a Loan Agreement with North Broadway Housing Partners LP (c/o Jamboree Housing Corporation and WISEPIace) for $5,256,327 in HOME Investment Partnerships Program - American Rescue Plan ("HOME -ARP") funds for the development of the WISEPIace Permanent Supportive Housing project located at 1411 N. Broadway, Santa Ana, CA 92701, APN 398-523- 04 ("Site") subject to non -substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager to execute a Subordination Agreement with Bank of America to subordinate the City's Loan Agreement to a senior loan, subject to non - substantive changes approved by the City Manager and City Attorney. 3. Authorize the City Manager to execute two (2) Subordination Agreements with the County of Orange ("County") and Orange County Housing Finance Trust ("OCHFT), respectively, to subordinate the County and OCHFT's junior loan agreements to the City's HOME -ARP Loan Agreement, subject to non -substantive changes approved by the City Manager and City Attorney. 4. Authorize the City Manager to execute a future Subordination Agreement with Jamboree Housing Corporation, WISEPIace, Bank of America and/or any other senior lender as needed after the WISEPIace Permanent Supportive Housing project is complete, subject to approval as to form by the City Attorney. EXECUTIVE SUMMARY On June 21, 2022, the City Council (attached as Exhibit 1) authorized the City Manager to execute a pre -commitment letter (attached as Exhibit 2) for an award of $5,256,327 in HOME Investment Partnerships Program - American Rescue Plan ("HOME -ARP") funds, and an award of twenty-five (25) U. S. Department of Housing and Urban City Council 13 — 1 3/7/2023 Loan Agreement for WISEPIace Permanent Supportive Housing March 7, 2023 Page 2 Development Project -Based Vouchers ("PBVs") from the Housing Authority for the development of Permanent Supportive Housing (PSH) at the Site by Jamboree Housing Corporation and WISEPIace. The project will have 47 new affordable studio units and 1 managers unit. These 47 units are specifically designated for permanent supportive housing for persons who are experiencing chronic homelessness at extremely low- income levels (at or below 30% of the Area Median Income). Fourteen (14) units will serve individuals experiencing chronic homelessness with a mental illness, financed by the Mental Health Services Act ("MHSA"), and these services will be provided on site by WISEPIace and the Orange County Health Care Agency. As a condition of the City's award of funds, staff is now returning to the City Council for approval of their Loan Agreement. In addition, staff is recommending approval of a Subordination Agreement to subordinate the City's Loan Agreement to a senior loan from Bank of America; two (2) Subordination Agreements with the County of Orange and Orange County Housing Finance Trust, respectively, to subordinate their two (2) junior loans to the City's Loan Agreement; and a future Subordination Agreement with any other senior lender as needed after the project is complete. DISCUSSION After the City Council approved the pre -commitment of funding Jamboree Housing Corporation and WISEPIace applied for 9% Low -Income Housing Tax Credits with additional funding through the County of Orange, and Orange County Housing Finance Trust. In September of 2022, Jamboree Housing Corporation and WISEPIace secured all of their financial commitments including 9% Tax Credits and are prepared to close on their financing and begin construction of the Project. In accordance with the pre - commitment letter, staff is now recommending approval of a Loan Agreement for $5,256,327 in HOME -ARP funds, a Subordination Agreement with Bank of America as the senior lender, and two (2) Subordination Agreements with the County of Orange and OCHFT, respectively, as junior lenders, for the development of the Project. HOME -ARP Loan Agreement The HOME -ARP Loan Agreement is attached as Exhibit 3. The following loan terms are incorporated into the Loan Agreement: • Borrower: North Broadway Housing Partners LP (c/o Jamboree Housing Corporation and WISEPIace). • Loan Amount: $5,256,327 principal amount from the HOME -ARP funds. • Interest Rate: 3% simple interest per year. • Term: fifty-five (55) years from the date of issuance of the Certificate of Completion for the Project. • Terms of Repayment: Repaid from fifty percent (50%) of residual receipts (pro- rata with payments due in connection with other financing provided) calculated by taking the Annual Project Revenues from the Property for each year, less deductions for Annual Operating Expenses. City Council 13 — 2 3/7/2023 Loan Agreement for WISEPIace Permanent Supportive Housing March 7, 2023 Page 3 • Disbursement Schedule: o One hundred percent (100%) (up to $4 million) of the Construction Component of the City/HOME-ARP Loan proceeds will be disbursed by City to Developer after execution and recording of the Agreement. o One hundred percent (100%) of the HOME -ARP Subsidy Reserve Component will be disbursed to the Developer after completion of construction of the Project and issuance of a Certificate of Completion. Selection of Tenants: North Broadway Housing Partners LP shall give preference in leasing units to households who qualify as chronically homeless that live in the City of Santa Ana. The Loan Agreement has been signed by Jamboree Housing Corporation on behalf of North Broadway Housing Partners LP to acknowledge their acceptance of the terms. Subordination Agreements The City's loan is $5,256,327 compared to Bank of America's larger construction loan of approximately $16 million (the exact amount of Bank of America's loan will be determined at construction loan closing). It is standard practice for a private market senior lender to request a Subordination Agreement for the City's smaller loan in order to permit the senior lender to complete their underwriting and commit their private market financing. The Subordination Agreement will ensure the senior lender will be paid back before the City's loan (attached as Exhibit 4). The City's loan for $5,256,327 is larger than the County's junior loan for $1,500,000; therefore, the City is seeking to subordinate the County's junior loan (attached as Exhibit 5). The City's total loan for $5,256,327 is larger than the Orange County Housing Finance Trust (OCHFT) junior loan for $2,480,030; therefore, the City is seeking to subordinate the OCHFT's junior loan (attached as Exhibit 6). Staff will not know if another Subordination Agreement is required until after the Project is complete. However, given the various sources of financing and structure of the loans for this Project, staff is seeking approval to authorize the City Manager to enter into any future Subordination Agreement if one is required for the permanent loan closing of the Project. Project Description To preserve the landmark status of the existing building the project consists of the adaptive reuse of the one-story east -west wing of WISEPIace facing Broadway Street. The existing north -south wing facing Sycamore Street will be demolished to accommodate the new construction of a four-story building, with a podium -parking garage on the ground floor and three levels of wood frame construction above. The building architecture is complementary to the existing building's Spanish Colonial Revival style, while being differentiated and distinguishable from the existing architecture. The sight lines along Broadway Street are preserved to maintain the City Council 13 — 3 3/7/2023 Loan Agreement for WISEPIace Permanent Supportive Housing March 7, 2023 Page 4 historic character from that street frontage. The ground floor amenities include a community garden, barbeque area with seating, dog run, and renovation of the existing patio and planters. The indoor amenities include two community rooms, a community kitchen, laundry rooms on each floor, a computer room, and a fitness center. Resident Services WISEPIace will coordinate the delivery of all services, including those services to be provided through the Orange County Health Care Agency. A comprehensive range of services will be offered to assist residents achieve and maintain self-sufficient, healthy and purposeful lives. Working under the Housing First model and the "WISEPIace Way" WISEPIace will utilize strategies from an array of evidence -based models and practices to ensure residents have access to all required services. WISEPlace's comprehensive, wrap around services, achieve personal self-sufficiency. In CY 2021 WISEPIace achieved the following outcomes: • 77% of clients transitioned into stable housing. • 72% of clients increased their savings. • 39% of clients decreased their mental health symptoms. • 100% of clients were linked with benefits and resources. • 95% of clients retained housing. An on -site Resident Clinical Services Coordinator will provide case management services for the MHSA units and create a Supportive Services Plan ensuring residents have access to needed services to maintain housing, on -site community building activities, and links to partner organizations. Community Inclusion The Project team held two community outreach meetings in February and March 2022. The team also met with the Willard, Downtown, and Floral Park Neighborhood Associations. The development also received letters of support from several community organizations including but not limited to Santa Ana Rotary, Dr. Snow of the University of California at Irvine, Santa Ana Elks, Orange County United Way, United to End Homelessness, Providence, Assistance League, Mariposa, Working Wardrobes, Santa Ana Kiwanis, and Justice League. The one-story adaptive reuse project will include commercial in the existing community room space facing Broadway. A museum displaying the history of the Y.W.C.A. and landmark building will be open to the public during regular business hours. WISEPIace plans to partner with community organizations such as the Orange County School of the Arts for periodic art installations as well. WISEPIace will continue to serve the broader community and maintain its headquarters at the Site. City Council 13 — 4 3/7/2023 Loan Agreement for WISEPlace Permanent Supportive Housing March 7, 2023 Page 5 Parking The proposed site plan includes 20 covered parking spaces in the gated parking garage with an entrance on Sycamore Street. The parking ratio is 0.42 spaces per PSH unit. While the development team has included 20 parking stalls, PSH located near transit is not required to provide any parking under State law. The developer has agreed to provide a Parking Management Plan as part of the Density Bonus Agreement. FISCAL IMPACT Funds for the HOME Investment Partnerships Program - American Rescue Plan Loan Agreement in the amount of $5,256,327 are available in the HOME Investment Partnerships Program — American Rescue Plan, Loans and Grants account (no. 18218780-69152) for expenditure in the current fiscal year. Up to $4 million will be expended in this current fiscal year for the Project's construction loan closing. Any remaining balances not expended at the end of the fiscal year will be presented to City Council for approval of carryovers to FY 23-24. EXHIBIT(S) 1. Staff Report from June 21, 2022 2. Pre -Commitment Letter 3. HOME Investment Partnerships Program - American Rescue Plan Loan Agreement 4. Subordination Agreement with Bank of America 5. Subordination Agreement with the County of Orange 6. Subordination Agreement with the Orange County Housing Finance Trust Submitted By: Michael L. Garcia, Executive Director of Community Development Approved By: Kristine Ridge, City Manager City Council 13 — 5 3/7/2023 A-2022-130 EXHIBIT 2 MAYOR Vicente Sarmiento MAYOR PRO TEM Phil Bacerra C-4 COUNCILMEMBERS o Johnathan Ryan Hernandez C�' Jessie Lopez Nelida Mendoza David Penaloza Thai Viet Phan INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL DATEf June 21, 2022 CITY OF SANTA ANA COMMUNITY DEVELOPMENT AGENCY 20 Civic Center Plaza M-25 Santa Ana, California 92702 www.santa-ana.orq Tish Kelly Vice President, Development Jamboree Housing Corporation Brateil Aghasi Chief Executive Officer WISEPIace CITY MANAGER Kristine Ridge CITY ATTORNEY Sonia R. Carvalho CLERK OF THE COUNCIL Daisy Gomez Sent via E-mail Re: WISEPIace Permanent Supportive Housing 1411 N. Broadway, Santa Ana, CA 92706 Pre -Commitment Letterfor HOME —American Rescue Plan ("HOME —ARP") Loan, Inclusionary Housing Funds Loan, Twenty -Five (25) Project -Based Vouchers, and CDBG Loan Forgiveness Dear Mses. Kelly and Aghasi, Jamboree Housing Corporation ("Jamboree"), in partnership with the fee owner of the WISEPIace apartment development ("Owner," and collectively with Jamboree, the "Developer"), requested financial assistance in connection with the proposed development of a forty-eight (48) unit affordable housing complex, with forty-seven (47) units restricted for chronically homeless individuals, to be located at 1411 N. Broadway, Santa Ana, CA 92706 (APN 398-523-04) (the "Project"). The Project will be an adaptive reuse of the existing one-story structure and the demolition of the existing two-story gym structure along Sycamore. The new construction component will include one story within the existing building along Broadway and a four- story new building along Sycamore. The Project requires a Density Bonus Agreement to be approved by the City Council. The City of Santa Ana ("City") and the Housing Authority of the City of Santa Ana ("Housing Authority") have reviewed the Developer's request for assistance, and at the SANTA ANA CITY COUNCIL Vicente Sanniento Phil Bacena Thai Viet Phan Nelida Mendoza Jessie Lopez Johnathan Ryan Hernandez David Penaloza Mayor Mayor Pro Tern, Ward 4 Ward 1 Ward 2 Ward 3 Ward 5 Ward 6 vsarmienlo(o)sanla-anaom ohacenaa(olsanla-ana.ora lohannasanla-ana.ore nm nr+doze2asanta-ana.org iessielooez(a)santa-ana.orQ nvanhemandezaAsanta-ana.oro dnenaloza ot7.canta-a na nm City Council 13 — 6 3/7/2023 EXHIBIT 2 12 City Council / Special Housing Authority meeting on June 21, 2022, the City Council and Housing Authority Board authorized and approved issuance of this pre -commitment letter evidencing the preliminary award of (collectively, the "City Assistance"): A loan in the maximum amount of $5,256,327 funded from the HOME Investment Partnerships Program — American Rescue Plan ("HOME —ARP") funds held by the City of Santa Ana for the Project ("HOME -ARP Loan"); A loan in the maximum amount of $484,000 from the Inclusionary Housing Fund held by the City for the Project ("Inclusionary Loan") to be used for relocation purposes only if necessary; Twenty -Five (25) U.S. Department of Housing and Urban Development Project -Based Vouchers ("PBV") from the Housing Authority of the City of Santa Ana. This letter shall evidence the City's pre -commitment of the City Assistance to the Developer for the Project subject to the conditions described below. City Assistance: The amount of the proposed City Assistance has been determined based upon the City's review of the Developer's request for the receipt of the City Assistance and the development proforma and projected cash flows for the Project submitted by the Developer to the City ("Proforma"). The City Manager has authority to approve revised development proformas and projected cash flows for the Project; provided, however, that the City Assistance is not increased or extended. The City Assistance shall include the following loan terms: • The HOME -ARP Loan shall be for a maximum principal amount of $5,256,327, or as much thereof as is disbursed for hard and soft costs in constructing the Project, provided from the HOME Investment Partnerships Program — American Rescue Plan fund: o A portion of the $5,256,327 will be in the form of capital funds, repayable from residual receipts. o The remaining portion of the $5,256,327 will be in the form of capitalized operating subsidy reserve. o The exact amounts may be determined at construction closing. • 3% simple interest per annum. • Repayment from 50% of Residual Receipts (pro-rata with payments due in connection with other financing provided by other public agencies) (after payment of operating expenses, including social services expenses and monitoring fees, debt service, any deferred developer fee, and partnership fees to be described in the Agreement), with the remaining 50% to be disbursed to the Developer. City Council 13 — 7 3/7/2023 EXHIBIT 2 13 o Any repayments to the soft loans must be based on the pro rata share of all the soft loan balances (the same as the residual receipts splits). Remaining principal and accrued interest due upon the 55th anniversary of the issuance of Certificate of Occupancy or earlier upon sale, refinancing or an uncured default. On that date, the City agrees to review the performance of the Property and consider in good faith any reasonable request by Developer to modify the terms or extend the term of the City Promissory Note. Additionally, the City will receive 50% of the net proceeds received from any sale or refinancing of the Project in order to repay any outstanding principal or interest due on the City Promissory Note, after payment of outstanding conventional debt, payment in full of any deferred developer fee, payment for any necessary repairs, and establishment of any reserves and transaction costs. Cost savings from the Project, if any, will be applied first to pay down the City Assistance, subject to compliance with the Tax Credit Allocation Committee ("TCAC") Regulations and California Health and Safety Code, as applicable. After all other funding sources have been secured through enforceable funding commitments, a HOME Subsidy Layering Review is required in order to confirm the eligible amount of HOME -ARP funds committed to the Project. • An environmental review in compliance with the National Environmental Policy Act is required prior to entering into a Loan Agreement for the HOME -ARP funds committed to the Project. The HOME -ARP Loan shall also require specific HOME -ARP designated units in the Project. The City's preliminary HOME -ARP Cost Allocation Analysis suggests that approximately nine (9) units in the Project will be designated as HOME -ARP assisted - units. The Inclusionary Loan shall have the same terms above and be for a maximum principal amount of $484,000, or as much thereof as is disbursed for relocation benefits for current WISEPIace residents in the event the residents are not matched with an alternative housing or shelter option prior to the start of construction and would need to vacate the site, provided from the Inclusionary Housing Fund. If relocation assistance is to be provided to the site occupants per the same requirements as the Uniform Relocation Act ("URA") or California Relocation Regulations, the Owner will also contribute an equal amount, dollar for dollar, in matching funds to the Inclusionary Loan. For example, if the twenty (20) current WISEPIace residents are provided relocation assistance as calculated per the requirements of the URA and California State Relocation Regulations, the estimated total for relocation payments will be $968,000, to be paid equally by the Inclusionary Loan and the Owner. The Owner will work with staff to relocate their 20 WISEPIace residents prior to the start of construction of the project. The Inclusionary Loan is for relocation purposes only, so if the Owner is able to relocate residents prior to the start of construction of the project, then the Inclusionary Loan funds shall be City Council 13 — 8 3/7/2023 EXHIBIT 2 4 proportionately reduced, or will not be required at all if all residents are relocated prior to the commencement of the project. Project -Based Vouchers: The basic terms of the award are as follows: • Funding Source: The twenty-five (25) PBVs will be funded exclusively out of the tenant -based voucher program annual budget authority received by the Housing Authority from the U.S. Department of Housing and Urban Development (HUD). • Rents: The PBV Housing Assistance Payments (HAP) Contract rents below are preliminary and contingent upon a reasonable rent determination to be conducted by the Housing Authority at the time of execution of the HAP Contract: o Studio: $1,682 In accordance with HUD regulations and SAHA's Administrative Plan, these rents are subject to review prior to the execution of a HAP contract. • Annual Amount: The Project will receive PBVs for twenty-five (25) units: 30% AMI Unit Size -- No. Units Proposed Rent Studio 25 $1,682 The estimated maximum annual amount received under this award is $560,100. These estimates assume 100% occupancy of the units over the twelve-month period with contract rent amounts limited to the current applicable Santa Ana Housing Authority Payment Standard. Term: The HAP Contract will have a term of twenty (20) years. Any time before the expiration of the HAP Contract, the Developer may request an additional twenty (20) years, subject to a determination by the Housing Authority that it is appropriate to continue providing permanent supportive housing for chronically homeless individuals or to expand housing opportunities and HUD funding. Subsequent extensions are subject to the same requirements. • Units Receiving Assistance: The maximum number of units receiving PBV assistance will be twenty-five (25). • Local Preference: o All individuals and families shall be chronically homeless individuals with, subject to compliance with applicable fair housing laws, a preference for City Council 13 — 9 3/7/2023 EXHIBIT 2 Page 15 local residents from the City of Santa Ana based on the City's local residency screening criteria. o An absolute preference shall be for current WISEPIace residents who are unable to be relocated prior to the start of construction and who qualify for relocation assistance paid for by the Inclusionary Loan and the Owner until the completion of the project. The "absolute" nature of this preference means that these current WISEPIace shelter residents will be selected if determined eligible for occupancy at the project before any other applicants are to be determined eligible. CDBG Loan Forgiveness: In 1996, the City provided the Owner a $900,000 loan of Community Development Block Grant ("CDBG") funds ("CDBG Loan") to finance the rehabilitation of the site for the purposes of providing permanent affordable rental housing. The CDBG Loan was structured with a 55-year term and a 1 % simple interest rate. The loan repayments were to be made from 50% of the project's residual receipts. In 2001, the City amended the terms of the CDBG Loan. At that time, the outstanding principal balance of the loan was set at $916,265, which consisted of two components: (1) a $250,000 component, and (2) a $666,616 component. The amended promissory note set the loan term at 55 years — starting in 2002 and ending in 2056. The current outstanding CDBG Loan balance is currently $723,446.41. Per the terms of the amended promissory note, the Owner is required to continue paying annual interest only payments until the end of the loan term in 2056. The entire balance of the CDBG Loan ($723,446.41 plus interest) will become due and payable at that time. Following the fulfillment of the conditions provided herein, the entirety of the CDBG Loan will be forgiven by the City, including any interest that may have accrued since the date of this letter. General Provisions: The City's obligation to provide the City Assistance and CDBG Loan Forgiveness to the Project is subject to each of the following conditions: Developer must provide proof that it has secured all of its remaining financing for the development of the Project in the form of enforceable funding commitments, which may include 9% or 4% Federal Low Income Housing Tax Credits, State Housing Tax Credits, a commitment of affordable housing funds from the County of Orange or State of California, Section 8 project -based vouchers from the Orange County Housing Authority, or any other funding source needed in the Project's capital stack to develop the Project before staff will return to the City Council for consideration of the HOME -ARP Loan Agreement and Inclusionary Loan Agreement. City Council 13 — 10 3/7/2023 EXHIBIT 2 L. • 100% of the affordable units (less one (1) manager's unit) in the Project will be restricted to extremely low-income, chronically homeless households at 30% of the Area Median Income. • The Project consists of forty-seven (47) permanent supportive housing units for chronically homeless individuals and families. All individuals and families shall be referred from the Orange County Coordinated Entry System except for those current WISEPlace residents who qualify for an absolute preference. • The rent standards for the Project must comply with the strictest of the standards imposed by TCAC and the HOME Program regulations, or other funding sources contributed to the Project, as applicable and with respect to the units assisted by each applicable funding source. • All provided funding and Project requirements shall conform to the City's most recently adopted Affordable Housing Funds Policies and Procedures, unless alternative requirements are expressly provided in the executed Loan Agreements for the City Assistance or any other documents related to the development of the Project. • Approval of all required entitlements and discretionary actions, to allow the adaptive reuse and construction (as applicable) of a forty-eight (48) unit affordable housing complex, with forty-seven (47) units restricted for chronically homeless individuals, to be located at 1411 N. Broadway, Santa Ana, CA 92706 (APN 398- 523-04). • The City's obligation to provide the City Assistance and CDBG Loan Forgiveness is and shall remain subject to all covenants, conditions, and restrictions set forth in the Loan Agreements, and in particular the City's analysis of the available funding sources and development and operating costs of the Project and the overall economic feasibility of the Project. • Review and approval of the Loan documents evidencing the City Assistance by the City Council including the Loan Agreement(s), Promissory Note(s), Affordability Restrictions and Deed(s) of Trust. • Developer must provide proof that it has received and reviewed three general contractor bids, and that all subcontractors are competitively bid out. Specifically, the Developer must obtain three general contractor bids; all subcontractors must be competitively bid out; and the City must review and approve the final general contractor's contract. • Execution of HAP Contracts and all necessary documents for the PBV's. • Compliance with applicable federal regulations set forth in 24 Code of Federal Regulations (CFR) Part 570 and 24 CFR Part 983, applicable HOME -ARP requirements, and all otherfederal, state, and local laws and regulations. City Council 13 —11 3/7/2023 EXHIBIT 2 17 Developer, at its sole cost and expense, will be responsible for securing any and all permits and discretionary approvals that may be required for the Project by the City or any other federal, state, or local governmental entity having jurisdiction over the Property or Project. Notably, this pre -commitment letter shall not obligate the City or any department thereof to approve any application or request for or take any other action in connection with any planning approval, permit or other action necessary for the construction, rehabilitation, installation or operation of the Project. This pre -commitment letter for the Project will expire on June 21, 2024. If you have any questions or require any additional information regarding this pre - commitment letter, please contact Judson Brown, Housing Division Manager, by telephone at (714) 667-2241 or by e-mail at 'brown(@santa-ana.org. Sincerely, On behalf of the City of Santa Ana: On behalf of the Housing Authority of the City of Santa Ana: Kristine Ridge Steven A. Mendoza City Manager E-xeca.. re Director Attest: aisy Gomez AV Clerk of the Council / R J Secretary APPROVED AS TO FORM Sonia R. Carvalho Authority General Counsel By: Ryoq O.�Hodge Assistant City Attorney City Council 13 — 12 3/7/2023 EXHIBIT 3 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 6103 & 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council 'E ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] HOME-AMERICAN RESCUE PLAN (HOME -ARP) LOAN AGREEMENT by and between the CITY OF SANTA ANA And NORTH BROADWAY HOUSING PARTNERS LP a California limited partnership (1411 North Broadway, Santa Ana, California (APN 398-523-04)) Dated: [March 7], 2023 City Council 13 — 13 3/7/2023 EXHIBIT 3 TABLE OF CONTENTS Section 1. DEFINITIONS AND INTERPRETATION ............................................. 2 1.1. Defined Terms.................................................................................................... 2 1.2. Singular and Plural Terms.................................................................................... 9 1.3. References and Other Terms................................................................................ 9 1.4. Exhibits Incorporated........................................................................................... 9 Section 2. [RESERVED]............................................................................................ 9 Section 3. SCOPE OF WORK/ PROJECT BUDGET ............................................... 9 Section 4. [RESERVED].......................................................................................... 10 Section5. LOANS.................................................................................................... 10 Section 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS........... 11 Section 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OFTHE PROPERTY....................................................................................................... 16 Section8. RESERVED............................................................................................ 22 Section 9. GENERAL PROVISIONS AND WARRANTIES ................................. 22 Section 10. CONDITIONS FOR CONSTRUCTION ................................................ 25 Section 11. FEDERAL (HOME PROGRAM) COVENANTS ................................. 28 Section 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY....................................................................................... 33 Section 13. NONDISCRIMINATION COVENANTS .............................................. 37 Section 14. ENVIRONMENTAL MATTERS.......................................................... 38 Section 15. OTHER AFFIRMATIVE COVENANTS .............................................. 39 Section 16. OTHER NEGATIVE COVENANTS..................................................... 41 Section 17. CERTIFICATE OF COMPLETION...................................................... 42 Section 18. INDEMNIFICATION............................................................................. 42 Section 19. INSURANCE, CASUALTY AND CONDEMNATION ....................... 45 Section 20. DEFAULTS AND REMEDIES.............................................................. 50 Section 21. MISCELLANEOUS................................................................................ 53 1 WlSSEPlace Pennanent Supportive Housing l It�/ ouncan greemen 13 — 14 3/7/2023 EXHIBIT 3 LOAN AGREEMENT HOME -ARP PROGRAM THIS LOAN AGREEMENT (the "Agreement") dated, for identification purposes only, as of [March 7], 2023, is made and entered into by and between the City of Santa Ana, a charter city and municipal corporation (referred to herein as "City") and North Broadway Housing Partners LP, a California limited partnership (referred to herein as "Developer"), with reference to the following: RECITALS: A. City has received an allocation of HOME -American Rescue Plan (HOME -ARP) funds from the United States Department of Housing and Urban Development ("HUD") under Section 3205 of the American Rescue Plan Act of 2021 (P.L. 117-2)) ("ARP) to be implemented through the HOME Investment Partnerships Program (the "HOME Program") (42 U.S.C. §12701, et seq.,) and to be used in accordance with applicable statutory requirements, regulations, and guidance, including but not limited to HUD Notice CPD-21-10, and its appendices, inclusive of the Waivers and Alternative Requirements for HOME Investment Partnerships (collectively, the "HOME -ARP Notice") and the HOME Regulations (24 CFR Part 92); B. WISEPlace, a California nonprofit public benefit corporation ("WISEPlace"), is the owner of fee simple title to certain property located at 1411 North Broadway (APN 398- 523-04), in the City of Santa Ana, totaling approximately 0.60 acres of land area ("the Property"). WISEPlace intends to ground lease the Property to the Developer (the "Ground Lease") for [sixty-five (65) years] from the Commencement Date of the Ground Lease. C. The Developer is a limited partnership, whose sole general partner is JHC-North Broadway LLC, a California limited liability company (the "General Partner"). WISEPIace and Jamboree Housing Corporation ("JHC"), a California non-profit public benefit corporation, are the sole members of the General Partner. The Developer will adaptively reuse one existing building on the Property and construct, own and operate an additional building on the Property to accommodate a forty-eight (48) unit multifamily affordable housing project ("Project"). D. In furtherance of the HOME -ARP Program, the Developer has applied to the City for a loan with which to: 1. provide deeper affordability for a longer term, as well as to construct the Property, and 2. thereafter to maintain, operate and professionally manage the Property as decent, safe, sanitary and affordable rental housing. E. City, on certain terms and conditions, desires to make such loan to Developer in order to make possible the construction of the Property, to expand the supply of decent, safe, sanitary and affordable housing. 1 WlSSEPlace Pennanent Supportive Housing Itan Agreement Round13 — 15 3/7/2023 EXHIBIT 3 F. If there is any discrepancy between Federal and State guidelines with regard to any of the terms and conditions contained herein, the more stringent shall apply. G. This Agreement and all of its attachments shall be enforceable by City in accordance with the terins thereof. Each of the Agreement, the Affordability Restrictions on Transfer of Property, the City/HOME-ARP Loan Note and the City/HOME-ARP Loan Deed of Trust provide a means of enforcement by the City if Developer is in breach of its obligations hereunder and thereunder, including liens on the Property, use and deed restrictions and covenants running with the land [24 CFR 92.504]. NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, City and Developer agree as follows: Section 1. DEFINITIONS AND INTERPRETATION I.I. Defined Terms. All capitalized terms used herein, including, without limitation, in the Recitals above and in all other Loan Documents, unless otherwise expressly defined, are defined where first used in this Agreement and/or as set forth in this Section 1. "Affordable Housing" means housing operated in accordance with the requirements of 24 CFR 92.252 and the rents governed by HUD. "Affordability Period" means the period beginning upon the issuance of the Certificate of Completion and ending on the date which is fifty-five (55) years after the issuance of the Certificate of Completion during which the Affordability Restrictions on Transfer of Property remain in effect. "Affordability Restrictions on Transfer of Property" means that certain document affecting real property benefiting the City, attached hereto as Exhibit F. "Affordable Rent" means the monthly rents that are set forth in more detail in Section 7 of this Agreement. "Building Permit" means the building permit(s) issued by City and required for the construction, if any. "Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday on which Santa Ana City Hall is open to the public to conduct City affairs. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Certificate of Completion" has the meaning set forth in Article 17. 2 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 16 3/7/2023 EXHIBIT 3 "Chronically Homeless" means an individual or family who meets the definition of "chronically homeless" under HUD regulations and guidance, including 24 C.F.R. § 578.3. "City" means the City of Santa Ana, California, a charter city and municipal corporation. "City/HOME-ARP Loan" means the loan to be made to Developer by City from HOME -ARP funds pursuant to Article 5 of this Agreement. "City/HOME-ARP Loan Deed of Trust" means the deed of trust encumbering the Property, in the form attached hereto as Exhibit D, to be executed by Developer pursuant to Section 5.B.2 in order to secure the City/HOME-ARP Loan Note. "City/HOME-ARP Loan Note" means that certain promissory note in the original principal amount of $5,256,327.00, in the form attached hereto as Exhibit E, to be executed by Developer in favor of City to evidence the obligation of Developer to repay the City/HOME-ARP Loan. "City Restriction Period" shall mean a period of fifty-five (55) years after date on which a Certificate of Completion is issued. "Close of Escrow" shall mean the date upon which the City/HOME Loan Deed of Trust is recorded in the Official Records of the County. "Closing Statement" means the final statement of Developer's Escrow account for the ground leasee of the Property pursuant to the Ground Lease. "Construction Period" means the period of time commencing with the Close of Escrow and ending on the Conversion Date. "Conversion Date" means the date on which the Senior Construction Loan is paid in full in accordance with the Senior Loan Documents. "County" means the County of Orange, California. "Developer" means North Broadway Housing Partners LP, a California limited partnership, its successors and assigns. "Developer's Representative" shall mean any of Laura Archuleta, Michael Massie, or Tish Kelly or his/her designee. "Environmental Reports" [list to be provided under separate cover] "Escrow Holder" means Commonwealth Land Title Company. "Event of Default" has the meaning set forth in Section 20.1. 3 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 17 3/7/2023 EXHIBIT 3 "Executive Director" means the Executive Director of the Community Development Agency, or his/her designee. "Extremely Low Income" means an adjusted income that does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Extremely Low Income Household" means an individual or family whose income qualifies as Extremely Low Income, adjusted for household size, as published by HUD. "General Partner" means the General Partner of Developer, JHC-North Broadway LLC (the "Managing General Partner") a California limited liability company, , and its successors and assigns. "Governmental Authority" means any governmental or quasi -governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility. "Hazardous Materials" means any flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including without limitation the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et sec., and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601, et seq., as amended including: (i) poses a hazard to the Project or to persons on the Project or (ii) causes the Project to be in violation of any Hazardous Substance Law; (iii) asbestos in any form; (iv) urea formaldehyde foam insulation; (v) transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls; (vi) radon gas; (vii) any chemical, material, or substance defined as or included in the definition of "hazardous substance," "hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous waste," "restricted hazardous waste," or "toxic substances" or words of similar import under any applicable local, state, or federal law or under the regulations adopted or publications promulgated pursuant to those laws, including, but not limited to, any Hazardous Substance Law, Code of Civil Procedure § 564, as amended from time to time, Code of Civil Procedure § 726.5, as amended from time to time, Code of Civil Procedure §736, as amended from time to time, and Civil Code § 2929.5, as amended from time to time; (viii) any other chemical, material, or substance, exposure to which is prohibited, limited, or regulated by any governmental authority or which may pose a hazard to the health and safety of the occupants of the Project or the owners or occupants of property 4 WlSSEPlace Permanent Supportive Housing Itan Agreement Round13 — 18 3/7/2023 EXHIBIT 3 adjacent to or surrounding the Project, or any other person coming on the Project or any adjacent property; and (ix) any other chemical, material, or substance that may pose a hazard to the environment flammable materials, explosives, radioactive materials, hazardous wastes, toxic substances and similar substances and materials, including all substances and materials defined as hazardous or toxic wastes, substances or materials under any applicable law, including, without limitation the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et. seq., as amended. The term Hazardous Substance shall not include materials or substances commonly used in the construction and operation of an apartment complex in accordance with applicable Hazardous Substance Law. "Hazardous Substance Law" means any federal, state, or local law, ordinance, regulation, or policy relating to the environment, health, and safety, any Hazardous Materials (including, without limitation, the use, handling, transportation, production, disposal, discharge, or storage of the substance), industrial hygiene, soil, groundwater, and indoor and ambient air conditions or the environmental conditions on the Project, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 [42 USCS §§ 9601 et seq.], as amended from time to time; the Hazardous Substances Transportation Act [49 USCS §§ 1801 et seq.], as amended from time to time; the Resource Conservation and Recovery Act [42 USCS §§ 6901 et seq.], as amended from time to time; the Federal Water Pollution Control Act [33 USCS §§ 1251 et seq.], as amended from time to time; the Hazardous Substance Account Act [Health and Safety Code §§ 25300 et seq.], as amended from time to time; the Hazardous Waste Control Law [Health and Safety Code §§ 25100 et seq.], as amended from time to time; the Medical Waste Management Act [Health and Safety Code §§ 25015 et seq.], as amended from time to time; and the Porter -Cologne Water Quality Control Act [Water Code §§ 13000 et seq.], as amended from time to time. "HOME -ARP Compliance Period" is for a period of twenty (20) years from the issuance of the Certificate of Completion, unless a shorter period is required by HUD or the HOME -ARP Program. "HOME -ARP Operating Expense Deficit" is the amount by which operating costs of the HOME -ARP Units as defined in the HOME -ARP Notice exceed the rent payments of qualifying households of the HOME -ARP Units for any period. "HOME -ARP Program" has the meaning set forth in Recital "A" above. "HOME -ARP Qualifying Population" means any individual or family who meets the eligibility criteria of a "qualifying population" of the HOME -ARP Program. "HOME -ARP Subsidy Reserve" has the meaning set forth in Section 12.10 and complies with the requirements for payment of "operating cost assistance" under the HOME -ARP Program. 5 WlSSEPlace Permanent Supportive Housing It�/ oundTan greemen 13 — 19 3/7/2023 EXHIBIT 3 "HOME -ARP Subsidy Reserve Compliance Period" is for a minimum period of fifteen (15) years from the issuance of the Certificate of Completion during which withdrawals can be made from the HOME -ARP Subsidy Reserve to cover operating cost deficits of the HOME -ARP Units, subject to any requirements of HUD or the HOME -ARP Program. "HOME -ARP Regulations" has the meaning set forth in Recital "A" above and summarized in Exhibit G. HOME -ARP Units" means the sixteen (16) units assisted under the HOME -ARP Program and available for rental to HOME -ARP Qualifying Populations during the HOME -ARP Compliance Period. "HOME Program" has the meaning set forth in Recital "A" above. "HOME Regulations" has the meaning set forth in Recital "A" above and summarized in Exhibit G. "HUD" means the United States Department of Housing and Urban Development and any successors or assigns thereof. "Improvements" means all improvements and fixtures now and hereafter comprising any portion of the Property, including, without limitation, landscaping, trees and plant materials; and offsite improvements (including, without limitation, streets, curbs, storm drains, and adjacent street lighting). "Indemnitees" has the meaning set forth in Section 14.5. "Laws" means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Authority. "Lien" means any lien, mortgage, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any lien or security interest). "Limited Partner" means the Tax Credit Investor and any other Limited Partner(s) or Special Limited Partner(s) of Developer, and their successors and assigns. "Loan Documents" means, collectively, this Agreement, the City/HOME-ARP Loan Note, the City/HOME-ARP Loan Deed of Trust, the Affordability Restrictions on Transfer of Property, and any other agreement, document, or instrument that the City requires in connection with the execution of this Agreement or from time to time to effectuate the purposes of this Agreement. 6 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 20 3/7/2023 EXHIBIT 3 "Low HOME Rent" means rent that does not exceed thirty percent (30%) of the adjusted income of a household whose annual income is equal to or less than fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD for the HOME -ARP rent limits. "Median Income for the Area" means the median income for the Orange County, California PMSA as most recently determined by HUD. Also may be referred to interchangeably in the Loan Documents as "Area Median Income" or "AMI". In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the City shall provide the Developer with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by HUD and the State. "Operating Reserves" shall mean reserves maintained during the Term of Agreement and funded out of Residual Receipts, loan advances, equity, or other sources and set aside for taxes and assessments, insurance premiums, operating expenses, and debt service. Operating Reserves shall not exceed the amount required to pay three (3) months of operating expenses and three (3) months of mandatory debt service, or such higher amount required by a project lender or by the Tax Credit Investor. "Partnership Agreement" means the Amended and Restated Agreement of Limited Partnership of Developer, dated on or about the same date hereof March _, 2023, as said Partnership Agreement may be amended from time to time. "Permitted Encumbrances for the Affordable Housing Restrictions" means, collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Permitted Encumbrances for the City Loan Deed of Trust" means, collectively, the Senior Loan Deed of Trust and all other title exceptions and limitations with respect to the Property hereafter approved by the Executive Director in writing. "Project" means the possession of a leasehold interest and construction and ownership of improvements on the Property by Developer pursuant to this Agreement. "Project Budget" means the line -item development cost budget for the Project attached hereto as Exhibit C, as modified from time to time in accordance with this Agreement. "Project Costs" means all costs of any nature incurred in connection with the Project in accordance with generally accepted accounting principles. "Property" means the Property that is located at 1411 North Broadway (APN 398- 523-04), within the City of Santa Ana, and is more fully described in the "Legal Description" of the Property attached hereto as Exhibit A and incorporated herein by reference. 7 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 21 3/7/2023 EXHIBIT 3 "Replacement Reserves" shall mean reserves maintained during the Term of Agreement and funded out of Residual Receipts, loan advances, equity, or other sources and set aside for replacement of roofing, furniture, fixtures, equipment and other capital expenditures. The annual amount set aside for Replacement Reserves shall be a minimum of two hundred fifty dollars ($250) per unit but shall not exceed five hundred dollars ($500) per unit and may increase by 3% per year, or such higher amount as may be required by the Tax Credit Investor and approved by City (such approval not to be unreasonably withheld or delayed). "Residual Receipts" has the meaning set forth in the City/HOME-ARP Loan Note. "Restricted Units" means the forty-seven (47) units restricted to Extremely Low Income Households during the City Restriction Period, which includes the sixteen (16) HOME -ARP Units assisted under the HOME -ARP Program and available for rental to HOME -ARP Qualifying Populations during the HOME -ARP Compliance Period. "Senior Construction Lender" means Bank of America, N.A., or such senior construction lender designated by the Developer and approved in advance by the City for the Project. "Senior Construction Loan" means the construction loan made by Senior Construction Lender to Developer. "Senior Lender" means the Senior Construction Lender or any other holder of a Senior Loan Note(s) approved by the City or any refinancing of a Senior Loan Note(s) as approved by the City. "Senior Loan" shall mean the Senior Construction Loan being made by Senior Lender concurrent to the City Loan for payment of a portion of the construction costs, and any subsequent loan that refinances the initial Senior Loan as approved by the City. "Senior Loan Deed of Trust" means the deed of trust securing the Senior Loan by encumbering the Property, as the same may be amended and restated from time to time. "Senior Loan Documents" means, collectively, the loan agreement governing the Senior Loan, the Senior Loan Note, the Senior Loan Deed of Trust, and any other agreement, document or instrument that the Senior Lender requires in connection with the Senior Loan, as the same may be amended and restated from time to time. "Senior Loan Note" means the promissory note evidencing the Senior Loan from Senior Lender, as the same may be amended and restated from time to time. "Tax Credit Investor" means Bank of America, N.A. and its permitted successor(s) and assign(s). "Tax Credit Rules" means the provisions of Section 42 of the Internal Revenue Code and/or, if applicable, California Revenue and Taxation Code Sections 17057.5, WlSSEPlace Permanent Supportive Housing Itan Agreement Round13 — 22 3/7/2023 EXHIBIT 3 17058, 23610.4 and 23610.5, et seq., as the foregoing may be amended from time to time, to the extent applicable to the Project and the rules and regulations implementing the foregoing, including the regulations set forth in Title 4 Cal. Code Regs. Section 10300, et seq. "Term of Agreement" means the term of this Agreement, which shall commence upon the date first written above and remain in effect for fifty-five (55) years from the issuance of the Certificate of Completion. "Very Low Income" means an adjusted income that does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Very Low Income Household" means an individual or family whose annual income qualifies as Very Low Income, adjusted for household size, as published by HUD. 1.2. Singular and Plural Terms. Any defined term used in the plural in this Agreement or any other City Loan Document shall refer to all members of the relevant class and any defined term used in the singular shall refer to any number of the members of the relevant class. 1.3. References and Other Terms. Any reference to this Agreement or any Loan Document shall include such document both as originally executed and as it may from time to time be modified. References herein to Articles, Sections and Exhibits shall be construed as references to this Agreement unless a different document is named. References to subparagraphs shall be construed as references to the same Section in which the reference appears. The term "document" is used in its broadest sense and encompasses agreements, certificates, opinions, consents, instruments and other written material of every kind. The terms "including" and "include" mean "including (include) without limitation." 1.4. Exhibits Incorporated. All attachments and exhibits to this Agreement, as now existing and as the same may from time to time be modified, are incorporated herein by this reference. Section 2. [RESERVED] Section 3. SCOPE OF WORK/ PROJECT BUDGET Developer shall comply with this Section until the Certificate of Completion is issued. A "Scope of Work" for the Property is attached hereto as Exhibit B. Any change to the Scope of Work requested by the Developer, which would result in a change to the development costs in the Project Budget in excess of ten percent (10%) of any individual development cost line item or in excess of five percent (5%) of the aggregate development cost budget, shall be subject to the prior written approval of the Executive Director. 9 WlSSEPlace Permanent Supportive Housing Itan Agreement Round13 — 23 3/7/2023 EXHIBIT 3 A line -item development cost budget for the Project, including a summary statement of sources and uses of funds, is incorporated into Exhibit C (the "Project Budget"). Any material change to the development costs in the Project Budget in excess of ten percent (10%) of any individual development cost line item or in excess of five percent (5%) of the aggregate development cost budget shall be subject to the prior written approval of the Executive Director which approval will not be unreasonably withheld, conditioned or delayed and if not granted or denied within five (5) Business Days, shall be deemed approved; provided, however, that in all events, Developer shall at all times obtain and maintain all required permits and approvals from the City's Planning and Building Agency. Notwithstanding the foregoing, the City's approval of a change order shall not be required unless the approval of the Senior Lender is required with respect to such change order. Section 4. [RESERVED] Section 5. LOANS 5.1. CITY LOAN: (a) Amount and Purpose. Subject to the terms and conditions of this Agreement, City agrees to make a loan of HOME -ARP funds to Developer in the principal amount of up to Five Million Two Hundred Fifty -Six Thousand Three Hundred Twenty - Seven Dollars ($5,256,327) (the "City/HOME-ARP Loan") to the Developer. The City/HOME-ARP Loan will be utilized for the following components: (i) Construction Component. Approximately Three Million Four Hundred Fifty -Six Thousand and Three Hundred Twenty -Seven Dollars [$3,456,327] of the City/HOME-ARP Loan (the "Construction Component") will be utilized to fund a portion of the Project's construction costs; and (ii) HOME -ARP Subsidy Reserve Component. Approximately One Million Eight Hundred Thousand Dollars [$1,800,000] of the City/HOME-ARP Loan (the "HOME -ARP Subsidy Reserve Component") will be utilized to fund a HOME -ARP Subsidy Reserve as further described in Section 12.10. (iii) The final allocation of the City/HOME-ARP Loan as between the Construction Component and HOME -ARP Subsidy Reserve Component shall be subject to review and approval by the City prior to Close of Escrow, subject to the requirements of the HOME -ARP Program, and provided that in no event shall the sum of the Construction Component and the HOME -ARP Subsidy Reserve Component exceed the total City/HOME-ARP Loan principal amount of $5,256,327. (b) City/HOME-ARP Loan Note and Deed of Trust. The City/HOME-ARP Loan shall be evidenced by the City/HOME-ARP Loan Note in the form attached hereto as Exhibit E. The City/HOME-ARP Loan shall be secured by the City/HOME-ARP Loan Deed of Trust in the form attached hereto as Exhibit D. The City/HOME-ARP Loan Deed of Trust shall be a deed of trust encumbering the fee simple 10 WlSSEPlace Permanent Supportive Housing Itan Agreement Round13 — 24 3/7/2023 EXHIBIT 3 interest and the leasehold interest under the Ground Lease in the Property, subordinate to the Senior Loan(s) made to Developer and the Senior Loan Documents. (c) City/HOME-ARP Loan Terms. The terms and conditions of the City/HOME-ARP Loan are as set forth in the City/HOME-ARP Loan Note, which is a residual receipts note. The HOME -ARP Compliance Period will end twenty (20) years from the issuance of the Certificate of Completion. Section 6. CONDITIONS TO DISBURSEMENT OF LOAN PROCEEDS Developer shall comply with this Section until the Certificate of Completion is issued. 6.1. Conditions Precedent. City's obligation to disburse the City/HOME-ARP Loan is subject to the satisfaction, or waiver by the Executive Director, of the following conditions precedent: (a) Loan Documents. Developer shall have delivered to the Escrow Holder, signed by the authorized officer or officers of Developer, with such signature(s) acknowledged where necessary, each of the following documents: (i) this Agreement; (ii) The City/HOME-ARP Loan Note; (iii) The City/HOME-ARP Loan Deed of Trust; (iv) The Affordability Restrictions on Transfer of Property; (v) The Project Budget; and (vi) All other documents and instruments reasonably required by the City to be executed and delivered, all in form and substance reasonably satisfactory to the City. The City has received and approved all required Environmental Reports. (b) Title Insurance. City shall have received an LP-10 ALTA Lender's loan policy of title insurance (2006 edition), or evidence of a commitment therefor satisfactory to City, issued by Commonwealth Land Title Company and in form and substance satisfactory to City, together with all endorsements and binders required, naming City as the insured, in a policy amount of not less than the City/HOME-ARP Loan Amount, showing Developer as the ground lessee of the Property under the Ground Lease and insuring the City/HOME-ARP Loan Deed of Trust to be a valid lien on the Property. This Agreement, the City/HOME-ARP Loan Note, and City/HOME-ARP Loan Deed of Trust shall be subordinate to the Senior Loan Note, Senior Loan Deed of Trust and the other Senior Loan Documents. The Affordability Restrictions on Transfer of Property and City/HOME-ARP Loan Deed of Trust shall be reflected as an encumbrance on the fee simple interest and the leasehold interest of the Property. 11 WlSSEPlace Permanent Supportive Housing Itan Agreement Round13 — 25 3/7/2023 EXHIBIT 3 (c) Intentionally Omitted. (d) Management Plan. The Developer shall have submitted and the City shall have approved (such approval not to be unreasonably withheld or delayed) a Management Plan ("Management Plan"). The Management Plan shall include a management contract with a manager approved in writing by the City for management of the Project and a plan for long-term marketing, operation, maintenance, repair and security of the Project, method of selection of tenants, and for rental policies in compliance with any applicable requirements, policies and procedures and with the Affordability Restrictions on Transfer of Property, along with any other policies or procedures required by the City. The Management Plan shall also include an initial budget for the Project. Developer shall obtain City's written consent to a property manager (such approval not to be unreasonably withheld or delayed), and City shall have thirty (30) days written notice for any request to approve a property manager. (e) Documents Recorded. This Agreement, the City/HOME-ARP Loan Deed of Trust and the Affordability Restrictions on Transfer of Property shall have been recorded in the Official Records of the County. This Agreement, and the City/HOME- ARP Loan Deed of Trust shall be subordinate to the Senior Loan Note, the Senior Loan Deed of Trust, and the other Senior Loan Documents. (f) Request for Notice. For the benefit of City, Escrow Holder shall have recorded a request for notice of default of the Senior Loan (the "Request for Notice of Default"). (g) Insurance. City shall have received evidence satisfactory to the City that all of the policies of insurance required by Section 19 of this Agreement are in full force and effect. (h) Representations and Warranties. The representations and warranties of Developer contained in this Agreement and the other Loan Documents shall be correct in all material respects as of the Close of Escrow as though made on and as of that date, and if requested by the Executive Director, City shall have received a certificate to that effect signed by Developer's Representative. (i) No Default. No Event of Default by Developer shall have occurred and be continuing, and no event shall have occurred which, with the giving of notice or the passage of time or both, would constitute an Event of Default by Developer under this Agreement, and if requested by the Executive Director, City shall have received a certificate to that effect signed by Developer's Representative. 6.2. Disbursement Procedures for Loan. The City/HOME-ARP Loan proceeds shall be utilized to finance the construction of the Property and to fund a HOME -ARP Subsidy Reserve (as evidenced in Exhibit Q. The City/HOME-ARP Loan proceeds shall not be used for any purpose other than for eligible construction costs which may include a developer fee and soft costs related to development of the Project and the funding of the HOME -ARP Subsidy Reserve (costs all subject to City's 12 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 26 3/7/2023 EXHIBIT 3 prior review). The City allows for eligible costs to be paid by City/HOME-ARP Loan funds that were incurred not more than 24 months prior to the HOME -ARP funds commitment date of this Agreement in accordance with HOME -ARP regulations. One hundred percent (100%) of the Construction Component of the City/HOME-ARP Loan proceeds will be disbursed by City to Developer after execution and after, or concurrently with, the recording of this Agreement. One hundred percent (100%) of the HOME -ARP Subsidy Reserve Component will be disbursed to the Developer after completion of construction on the Project and issuance of a Certificate of Completion, subject to the requirements of Section 12.10 of this Agreement. 6.3. First Disbursement. The City's obligation to make the disbursement of the Construction Component is subject to satisfaction of the following conditions precedent: (a) General Contractor. If the Executive Director has not yet approved the General Contractor, the Executive Director shall have approved the identity and qualifications of the General Contractor which approval will not be unreasonably withheld, conditioned or delayed. (b) Construction Contract. If the Executive Director has not yet approved the Construction Contract, the Executive Director shall have approved the Construction Contract which approval will not be unreasonably withheld, conditioned or delayed. 6.4. Termination for Failure of Condition. If (a) any of the conditions set forth herein are not timely satisfied within no more than ninety (90) days of the date of this Agreement or waived by the Executive Director, and (b) City is not in default under this Agreement, City may terminate this Agreement without any further liability on its part by giving written notice of termination to Developer. Upon the giving of such notice, all principal, interest and other amounts owing under the City/HOME-ARP Loan Note shall be immediately due and payable, regardless of any other specified due date. 6.5. [Reserved.] 6.6. [Reserved.] 6.7. Waiver of Conditions. The conditions set forth pertaining to City's obligation to make disbursements of the Construction Component are for City's benefit only and the Executive Director may waive all or any part of such rights by written notice to Developer, provided such waiver is consistent with the City's approval of this Agreement. 6.8. Waiver of Disbursement Conditions. A waiver of a disbursement condition may only be provided with written approval by the City. 6.9. Modification of Disbursement Conditions and Procedures. The Executive Director shall have the authority to modify the disbursement conditions and procedures set forth herein in order to conform them to the payment provisions of the Construction Contract, provided such modification is consistent with City's approval of this Agreement. 13 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 27 3/7/2023 EXHIBIT 3 6.10. Other Terms and Conditions of Loan. (a) The City/HOME-ARP Loan Note shall become immediately due and payable, in the event of any of the following: (i) failure to complete the Project within four (4) years of the Close of Escrow; (ii) the HOME -ARP Units fail to achieve initial occupancy within 12 months of the issuance of the Certificate of Completion; (iii) violation of any of the use covenants and restrictions contained in this Agreement after the expiration of any applicable notice and cure period; (iv) an Event of Default by Developer which is not timely cured after expiration of any applicable notice and cure period pursuant to the terms of this Agreement. 6.11. Closing Costs and Fees. Developer shall pay (a) all escrow fees and charges, (b) all recording fees and charges on any document recorded pursuant to this Agreement, and (c) the premium for the title insurance required hereunder. 6.12. Approval of Additional Financing. Except as to the Senior Loan, the loans secured by permitted encumbrances for the City Loan Deed of Trust and as otherwise described herein or in the policy of title insurance issued to the City at loan closing, the Developer shall not place or permit (either voluntarily or involuntarily) to be placed any encumbrances, including, but not limited to any additional liens or financing of any bind on the Project without the prior written discretionary consent of the City. 6.13. Cost Savings Obligation. (a) Subject to compliance with the Tax Credit Rules and the approval of the California Tax Credit Allocation Committee ("TCAC"), and further subject to any requirements of the HOME -ARP Program, Developer hereby agrees to provide and pay to the City the payment described in this Section 6.13 in connection with Cost Savings, if any, from the Project in an amount to be determined based on the "Audit" (as defined in Section 6.13(b) below and in accordance with 6.13) to be conducted upon completion of construction for the Project. Payment of the City Share of Cost Savings (defined below) shall be made at the time set forth therefore in Section 6.13(d) below. Provided that the payment is timely and fully made in accordance with Section 6.13(d), the amount paid for the City Share of Cost Savings shall be credited against the amount then outstanding on the City/HOME-ARP Loan Note. (b) Audit to Determine Cost Savings and City Share of Cost Savings. The actual amount of "Cost Savings" (as defined below) to be paid to the City and retained by the Developer shall be determined after the Audit, as hereafter defined and described, and the amount of such Cost Savings shall be equal to the amount by which the total sources of permanent financing for the Project exceed the costs of development incurred for the Project including without limitation payment of the Developer Fee (resulting amount constituting "Cost Savings"). From the total amount of Cost Savings, the Developer shall retain fifty percent (50%) and pay to City fifty percent (50%) ("City Share of Cost 14 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 28 3/7/2023 EXHIBIT 3 Savings"). If any of the other soft lenders request a share of Cost Savings, the City shall split the City Share of the Cost Savings (50%) on a pro rata basis with the other soft lender(s) that are requesting a share of Cost Savings. The pro rata distribution shall be based on the initial principal balances of each respective soft loan of the soft lender(s) that are requesting a share of Cost Savings. If none of the other soft lenders request a share of the Cost Savings, the City shall receive the full 50% of the Cost Savings. Within one hundred and eighty (180) days following the issuance of Form 8609 by TCAC, Developer shall cause its certified public accountant(s) to perform a final audit of the costs of development of the Project in accordance with the requirements of the Tax Credits and generally accepted auditing standards (GAAP) ("Audit"). If the Audit determines that the total sources of permanent financing for the Project (including long-term permanent debt and tax credit equity) exceed the total development cost for the Project required in connection with the development of the Project, such excess shall be considered the "Cost Savings" for the Project. (c) Allocation of Cost Savings Amount. Once determined by the Audit pursuant to Section 6.13 above, the full amount of Cost Savings shall be allocated and remitted in the following order: (a) first, Developer shall retain fifty (50%) of Cost Savings, and (b) second, Developer shall pay to the City the City Share of Cost Savings which shall be utilized as principal payment due on the City/HOME-ARP Loan Note. (d) Timing of Allocation and Payment of Cost Savings. In the event of any Cost Savings, the payment of the City Share of Cost Savings shall become due and payable no later than sixty (60) days after Developer receives its final Tax Credit equity payment for the Project, and each of such payments shall be allocated and remitted in a lump sum, and as applicable credited toward the respective amount outstanding under the City/HOME-ARP Loan Note. 6.14. Standard Form Leases. On or before issuance of the Certificate of Completion, Developer shall submit to City for its written approval (such approval not to be unreasonably withheld or delayed) a standard form of residential lease to be used for leasing of the Project (the "Standard Lease"). The Standard Lease shall be in compliance with this Agreement, and any other agreement with the City regarding the Project, and all applicable laws and Developer shall be obligated to revise said Standard Lease from time to time to comply with any changes in said applicable laws. 6.15. Leasing Program. Developer shall market and lease the Project consistent with the Marketing Plan described in Exhibit G. 6.16. No Changes. Developer shall not materially modify the approved Standard Lease or materially deviate from the approved rental rate schedule for the units without the City's prior written consent in each instance. 6.17. Landlord's Obligations. Developer shall timely and in good faith, perform all obligations required to be performed by it as landlord under any lease affecting any part of the Project or any space within the Project. If any tenant at any time claims any breach of landlord's obligations and the amount of such claim (in excess of available insurance 15 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 29 3/7/2023 EXHIBIT 3 coverage) is $10,000 or more, Developer shall promptly notify City of such claim. Section 7. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 7.1. Use Covenants and Restrictions. (a) Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assigns and every successor in interest to the Property, that all Restricted Units on the Property will be made available for rent as follows: (i) Except as set forth in sub -paragraph (ii) of this Section 7.1(a), the Restricted Units shall be rented to Extremely Low Income Households for the City Restriction Period. (ii) During the HOME -ARP Compliance Period, all HOME - ARP Units must be rented to a HOME -ARP Qualifying Population as allowed by the HOME -ARP Program. After the HOME -ARP Compliance Period expires, all Units shall be restricted under sub -paragraph (i) of this Section 7.1(a). (b) The HOME -ARP Units shall be studio units, with comparable amenities to the other Restricted Units. The HOME -ARP Units shall be initially distributed throughout the complex, but thereafter shall be allowed to "float". (c) It is anticipated that during the Term of Agreement the Project will be supported by Project -Based Section 8 rental subsidy payments provided by the Housing Authority of the City of Santa Ana ("Housing Authority") for not less than twenty-five (25) of the Restricted Units (the "PBV Rental Subsidy"), and the HOME - ARP Subsidy Reserve will be utilized to cover operating deficits associated with the sixteen (16) HOME -ARP Units. The HOME -ARP Subsidy Reserve cannot be used for HOME -ARP Qualifying Households with project -based vouchers or project -based rental assistance. The PBV Rental Subsidy may not be placed on any HOME -ARP Unit. (d) The Developer shall establish a preference for renting Restricted Units to individuals and families who qualify as Chronically Homeless in accordance with the Affordability Restrictions on Transfer of Property, provided however that any preference applicable to the HOME -ARP Units must comply with the HOME -ARP Program. (e) Rental increases in the Restricted Units shall be subject to and in conformance with federal, state law, and local law. (f) Maximum Occupancy for Restricted Units will be two persons per studio unit, unless a different number is required by state or federal law. (g) For all Restricted Units, Developer must have a written lease between tenant and owner for a period of at least one year, unless a shorter period is 16 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 30 3/7/2023 EXHIBIT 3 mutually agreed upon. All leases must be consistent with the applicable laws and regulations, including the HOME -ARP Program for the HOME -ARP Units. 7.2. Affordability Levels/Unit Mix: (a) All Restricted Units in the Property will be studios, except the one (1) manager unit will be a 2-bedroom unit reserved for the on -site manager. (b) Except as set forth in sub -paragraph (c) of this Section 7.2, the allowable rent for the Restricted Units in the Project shall not exceed the Affordable Rent for an Extremely Low Income Household as follows: Unit Size 30% TCAC AMI No. Units Current Rent Studio 47 $711 Total 47 The remaining unit will be an unrestricted 2-bedroom unit reserved for the on -site manager. (c) During the HOME -ARP Compliance Period, the allowable rent for HOME -ARP Units in the Project shall not exceed the lesser of: (a) 30% of the tenant's actual household income (inclusive of Supplemental Security Income (SSI) / State Supplementary Payment (SSP) payments); or (b) the Low HOME Rent in accordance with the HOME -ARP Program. The number of HOME -ARP Units and allowable rent shall be as follows: HOME -ARP Units # of HOME- HOME -ARP Maximum ARP Units Restriction Allowable Rent HOME -ARP Qualifying 16 Studio Units Low HOME Rent Population (i) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the units initially designated as the HOME -ARP Units. (ii) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of all Restricted Units, including the HOME -ARP Units, to verify compliance with affordability requirements. For the HOME -ARP Units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. 17 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 31 3/7/2023 EXHIBIT 3 (d) The Affordable Rents charged at the Project must comply with the standards set forth by TCAC as defined in the Affordability Restrictions on Transfer of Property, except that during the HOME -ARP Compliance Period, and if allowed by the HOME -ARP Program, the Affordable Rents for the HOME -ARP Units must comply with the most stringent of standards set forth by the HOME -ARP Program and TCAC. (e) At the time of this Agreement, the Project will pay for all utilities with no tenants being charged for utilities. If tenants are charged for utilities at any time during the term of this Agreement, a utility allowance must be deducted from the maximum affordable rent charged at the Project for each unit. With respect to the HOME -ARP Units, any utility allowance must be based on project -specific allowances. (f) Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 7.3. Rent Increases. On an annual basis, the City shall provide Developer with the maximum allowable schedule of rents for the Property in accordance with changes in allowable rent and income tables published by HUD and TCAC, provided however that the rent for the HOME -ARP Units shall in no event be higher than the rent for the equivalent non -HOME -ARP Unit within the Project. In no event can Developer charge any tenant more than such amount. All rent increases are subject to City approval pursuant to the terms of this Section. No later than sixty (60) days prior to the proposed implementation of any rent increase, Developer shall submit to the City a schedule of any proposed increase in the rent. The City will disapprove a rent increase if it does not comply with the restrictions set forth in Section 7.1 and 7.2 above. Subject to the applicable requirements and provisions of, and changes to, Section 42 of the Code and the HOME -ARP Program, if, upon recertification of the income of any tenant, the Developer determines that any household has an adjusted income exceeding 30% of the applicable Median Income for the Area, in each case, adjusted for household size, such tenant may be permitted to continue to occupy the unit at the rental rate as provided for in Sections 7.1 and 7.2 above, as applicable, until the tenant chooses to vacate the unit. After the unit is vacated, the Developer shall re -rent the unit to a tenant pursuant to the terms, covenants and conditions of this Agreement. 7.4. Prohibited Fees. The Developer is prohibited from charging fees that are not customary or consistent with any applicable laws, and with respect to the HOME -ARP Units, Developer shall not charge fees that are not consistent with the HOME ARP Program, or the HOME Regulations 24 CFR section 92.504(c)(3)(xi). The Developer and subsequent owner can charge reasonable application fees to prospective tenants; other fees only to the extent that they are reasonable and customary for the project area; and fees for services provided to tenants, provided that these services are not mandatory. 7.5. Operation and Maintenance of the Property. Solely at Developer's 18 WlSSEPlace Permanent Supportive Housing Itan Agreement Round13 — 32 3/7/2023 EXHIBIT 3 expense, Developer agrees to maintain the Property in a clean and orderly condition and in good condition and repair and keep the Property free from any accumulation of debris and waste materials. If at any time Developer fails to maintain, or cause to be maintained, the Property as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from the City, unless such condition cannot reasonably be cured within thirty (30) days, in which case Developer shall have such additional time as reasonably necessary to complete such cure, the City may perform the necessary maintenance and Developer shall pay all reasonable costs incurred for such maintenance. The City shall inspect the Property annually after the date of issuance of the Certificate of Completion as described in Article 17 of this Agreement. During the Affordability Period, the Property must meet all applicable Federal, State and local laws. The Property must be free of all health and safety defects during the Affordability Period. (a) Operation. During the Term of Agreement, Developer shall at all times operate the Project as an affordable housing rental facility in compliance with this Agreement and the Affordability Restrictions on Transfer of Property. (b) Maintenance. During the Term of Agreement, Developer agrees to maintain all interior and exterior improvements, including landscaping (and all abutting ground, sidewalks, roads, parking and landscape areas) on the Project in good condition, repair and sanitary condition (and, as to landscaping, in a healthy condition) and in accordance with any Management Plan approved by the City under this Agreement (such approval not to be unreasonably withheld or delayed) (including without limitation any landscape and signage plans), as the same may be amended from time to time, and all other applicable laws, rules, ordinances, orders, and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having jurisdiction and all their respective departments, bureaus, and officials. Developer acknowledges the great emphasis the City places on quality maintenance to protect its investment and to provide quality affordable housing for its constituents and to ensure that all City -subsidized affordable housing projects within the City are not allowed to deteriorate due to deficient maintenance. In addition, Developer shall keep the Project free from all graffiti and any accumulation of debris or waste material. Developer shall promptly make all repairs and replacements necessary to keep the Project in good condition and repair and shall promptly eliminate all graffiti and replace dead and diseased plants and landscaping with comparable approved materials. Developer shall not commit or permit any waste or deterioration of the Project, shall not abandon any portion of the Project, and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of damage to the Project. In the event that Developer breaches any of the covenants contained in this Section 7.5 and such default continues for a period of five (5) days after written notice from the City (with respect to graffiti, debris, waste material, and general maintenance) or thirty (30) days after written notice from the City (with respect to landscaping and building improvements), then City, in addition to whatever other remedies it may have under this Agreement, the other Loan Documents or at law or in equity, shall have the right to enter upon the Project and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, the City shall be permitted (but not 19 W1SEPlace Permanent Supportive Housing itan Agreement Round13 — 33 3/7/2023 EXHIBIT 3 required) to enter upon the Project and perform all acts and work necessary to protect, maintain and preserve the improvements and landscaped areas on the Project, in the amount of the expenditure arising from such acts and work of protection, maintenance, and preservation by City and/or reasonable costs of such cure, including a fifteen percent (15%) administrative charge, which amount shall be promptly paid by Developer to City upon demand. (c) Removal of Personal Property. During the Term of Agreement, Developer shall not cause or permit the removal from the Project of any items of Developer's personal property (other than tools and equipment used in the operation of the Project and obsolete equipment) unless (i) no Event of Default remains uncured and (ii) Developer promptly substitutes and installs on the Project other items of equal or greater value or utility in the operation of the Project, all of which shall be free of liens and shall be subject to the liens of the City/HOME-ARP Loan Deed of Trust and the Financing Statement. 7.6. Obligation to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, mental or physical disability, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Developer itself or any person claiming under or through him establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land and shall remain in effect for the term of the Agreement. 7.7. Maintaining Financial Stability. It is anticipated that during a portion of the Term of Agreement, the Project will be supported by a PBV Rental Subsidy for not less than twenty-five (25) of the Restricted Units, and the HOME -ARP Subsidy Reserve for the sixteen (16) HOME -ARP Units. These subsidies will not overlap on the same units. If, during the Term of Agreement and through no fault of Developer, (a) the HOME -ARP Subsidy Reserve is depleted, (b) there is a reduction, termination or nonrenewal of the PBV Rental Subsidy, or (c) the Project generates insufficient income to cover its operating costs, required deposits to replacement reserves, and debt service on approved financing as shown on the Operating Budget, and as is necessary to maintain the financial stability of the Project, with the exception of the HOME -ARP Units during the HOME -ARP Compliance Period, Developer may request approval of the City (a) to allow households with adjusted incomes that do not exceed sixty percent (60%) of AMI, adjusted for actual household size, to occupy the Restricted Units (i.e., a unit previously restricted to households with adjusted incomes that do not exceed 30% of AMI), and (b) to increase the rent on one or more of the Restricted Units, to rents that are affordable to households with an adjusted income that does not exceed sixty percent (60%) of AMI, adjusted for actual household size. The rent increase is subject to the following requirements: (a) concurrently with the request, Developer shall provide the City with evidence of the anticipated reduction, 20 W1SEPlace Permanent Supportive Housing itl an Agreement Rounc13 — 34 3/7/2023 EXHIBIT 3 termination, or nonrenewal of the Rental Subsidy and/or depletion of the HOME -ARP Subsidy Reserve and/or evidence that the Project is not operating at a financially stable level, (b) a Management Plan (as defined in Section 6.1(d) of this Agreement) for the Project for the City's approval pursuant to Sections 6.1(d) and Exhibit F of this Agreement, showing the impact of the depletion of the HOME -ARP Subsidy Reserve and/or loss, termination, or reduction of the Rental Subsidy, (c) a proposed operating budget reflecting the requested rent increases (the "Operating Budget"), and (d) a description of efforts to obtain alternate sources of rental subsidy and/or maintain financial stability. The number of the Restricted Units subject to the rent increase and the amount of the proposed increase may not be greater than the number or amount required to ensure that the Project generates sufficient income to cover its operating costs, required deposits to replacement reserves, and debt service on approved financing as shown on the Operating Budget, and as is necessary to maintain the financial stability of the Project. In addition, Developer hereby agrees to the following: (a) Developer shall use good faith commercially reasonable efforts to obtain alternative sources of rental subsidies and shall provide the City with annual progress reports on efforts to obtain alternative sources of rental subsidies that would allow the rents to be reduced. Upon receipt of any alternative rental subsidies, Developer shall reduce the rents back to the original restrictions to the extent that the alternative rental subsidies provide sufficient income to cover the operating costs, required replacement reserves and debt service of the Project as shown on the Operating Budget. (b) Developer shall provide tenants in the Restricted Units with notice of any rent increase pursuant to this Section 7.7, and shall notify the tenant that if they have received a tenant -based voucher from the Housing Authority they may use the tenant -based voucher for their Restricted Unit. (c) All rent increases for the Restricted Units are subject to City approval pursuant to the terms of this Section 7.7. No later than sixty (60) days prior to the proposed implementation of any rent increase, Developer shall submit to the City a schedule of any proposed increase in the rent. The City will disapprove a rent increase if it does not comply with the restrictions set forth in this Section 7.7. Notwithstanding the foregoing, rent increases for the Restricted Units shall be subject to review and approval of the City. (d) Developer shall give tenants of all Restricted Units written notice at least sixty (60) days prior to any rent increase. With respect to any Restricted Units for which City has authorized Developer to increase rents pursuant to this Section, the preference to rent to Chronically Homeless households shall automatically terminate. The City's local preferences as described in Section 11.4 of this Agreement and Section 7.5 of the Affordability Restrictions on Transfer of Property shall remain. 7.8. Developer shall prepare a written Management Plan in accordance with the Affordability Restrictions on Transfer of Property, which shall include, among other things, tenant selection policies and provide for the selection of tenants through the Coordinated Entry System. 21 W1SEPlace Permanent Supportive Housing `ity"douncil°an HgreemenL 13 — 35 3/7/2023 EXHIBIT 3 Section 8. RESERVED. Section 9. GENERAL PROVISIONS AND WARRANTIES 9.1. As a material inducement to City to enter into this Agreement, Developer represents and warrants as follows, which representations and warranties are made solely by Developer and not by or on behalf of any partner of Developer: JHC-North Broadway LLC is the managing general partner of Developer and: (a) is a limited liability company, validly existing and in good standing under the laws of the State of California; (b) has all requisite authority to conduct its business and own and lease its properties; and, (c) is qualified and in good standing in every jurisdiction in which the nature of its business makes qualification necessary or where failure to qualify could have a material adverse effect on its financial condition or the performance of its obligations under the Loan Documents. Developer is in compliance with all laws applicable to its business and has obtained all approvals, licenses, exemptions and other authorizations from, and has accomplished all filings, registrations and qualifications with, any Governmental Authority that are necessary for the transaction of its business. 9.2. Execution and Performance of Loan Documents. (a) Developer has all requisite authority to execute and perform its obligations under the Loan Documents. (b) The execution and delivery of Developer of, and the performance by Developer of its obligations under, each Loan Document has been authorized by all necessary action and does not and will not: (i) require any consent or approval not heretofore obtained of any person having any interest in Developer; (ii) violate any provision of, or require any consent or approval not heretofore obtained under, any articles of incorporation, by-laws or other governing document applicable to Developer; (iii) result in or require the creation of any lien, claim, charge or other right of others of any bind (other than under the City Loan Documents) on or with respect to any property now or hereafter owned or leased by Developer; (iv) violate any provision of any law presently in effect; or (v) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Developer is a party or by which Developer or any of its property is bound. (c) Developer is not in default, in any respect that is materially adverse to the interests of City under the Loan Documents or that would have any material adverse 22 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 36 3/7/2023 EXHIBIT 3 effect on the financial condition of Developer or the conduct of its business, under any law, contract, lease or other agreement or document described in subsection (b). (d) No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Authority is required which has not been previously obtained in connection with: (i) the execution of Developer of, and the performance by Developer of its obligations under, the Loan Documents; and (ii) the creation of the liens described in the Loan Documents. 9.3. Financial and Other Information. To the best of Developer's knowledge, all financial information furnished to City with respect to Developer in connection with the City/HOME-ARP Loan (a) is complete and correct in all material respects as of the date of preparation thereof, (b) accurately presents the financial condition of Developer, and (c) has been prepared in accordance with generally accepted accounting principles consistently applied or in accordance with such other principles or methods as are reasonably acceptable to City. To the best of Developer's knowledge, all other documents and information furnished to City with respect to Developer, in connection with the City/HOME-ARP Loan, are correct and complete in all material respects insofar as completeness is necessary to give the City accurate knowledge of the subject matter. To the best of Developer's knowledge Developer has no material liability or contingent liability not disclosed to City in writing and there is no material lien, claim, charge or other right of others of any binds (including liens or retained security titles of conditional vendors) on any property of Developer not disclosed in such financial statements or otherwise disclosed to City in writing. 9.4. No Material Adverse Change. There has been no material adverse change in the condition, financial or otherwise, of Developer since the dates of the latest financial statements furnished to City. Since those dates, Developer has not entered into any material transaction not disclosed in such financial statements or otherwise disclosed to City in writing. 9.5. Tax Liability. Developer has filed all required federal, state and local tax returns and has paid all taxes (including interest and penalties, but subject to lawful extensions disclosed to City in writing) other than taxes being promptly and actively contested in good faith and by appropriate proceedings. Developer is maintaining adequate reserves for tax liabilities (including contested liabilities) in accordance with generally accepted accounting principles or in accordance with such other principles or methods as are reasonably acceptable to City. 9.6. Governmental Requirements. To the best of Developer's knowledge, Developer is in compliance with all applicable laws relating to the Property and all applicable Governmental Authority approvals, including zoning, land use, planning requirements, and requirements arising from or relating to the adoption or amendment of, any applicable general plan, subdivision and parcel map requirement; environmental requirements, including the requirements of the California Environmental Quality Act and 23 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 37 3/7/2023 EXHIBIT 3 the National Environmental Policy Act and the preparation and approval of all required environmental impact statements and reports; use, occupancy and building permit requirements; and public utilities requirements. 9.7. Rights of Others. Developer is in compliance with all covenants, conditions, restrictions, easements, rights of way and other rights of third parties relating to the Property. 9.8. Litigation. There are no material actions or proceedings pending or, to the best of the Developer's knowledge, threatened against or affecting Developer or any property of Developer before any Governmental Authority, except as disclosed to City in writing prior to the execution of this Agreement. 9.9. Bankruptcy. To the best of Developer's knowledge, no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings are pending or threatened against Developer, nor are any of such proceedings contemplated by Developer. 9.10. Information Accurate. To the best of Developer's knowledge, all information, regardless of its form, conveyed by Developer to City, by whatever means, is accurate and correct in all material respects and sufficiently complete to give City true and accurate knowledge of its subject matter, and does not contain any material misrepresentation or omission. 9.11. Conflicts of Interest. No member, official or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affects his/her personal interests or the interests of any corporation, partnership or association in which he/she has a direct or indirect financial interest. The Developer warrants that it neither has paid nor given, nor will pay or give, any third party any money or other consideration for obtaining this Agreement. 9.12. Nonliability of City Officials and Employees. No member, official or employee of the City shall be personally liable to the Developer in the event of any default or breach by the City or for any amount that may become due to Developer or on any obligations under the terms of this Agreement. 9.13. Transfers. Developer expressly acknowledges and agrees that the City has only agreed to assist the Developer as a means by which to induce the acquisition/construction/development of the Property. During the Term of Agreement, except for a Permitted Transfer or except as otherwise permitted under the Loan Documents, Developer shall not sell or otherwise transfer the Project or any portion thereof, and none of the constituent general partners of Developer shall sell or otherwise transfer their interests in Developer, and none of the constituent general partners in a partnership that is a general partner in Developer shall sell or otherwise transfer their interest in such partnership without first obtaining the approval of the City, which consent the City may withhold or grant in the exercise of its reasonable and good faith discretion. The City shall not approve any such transfer request if the Developer is in default under 24 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 38 3/7/2023 EXHIBIT 3 any of the Loan Documents or the Management Plan and such default has not been cured following written notice thereof and expiration of the applicable cure period. For purposes hereof, "Permitted Transfer" shall mean: (a) The granting of easements or licenses to any appropriate governmental agency or utility or permits to facilitate the development and/or operation of the Property; (b) A sale or transfer in connection with a foreclosure or deed in lieu of foreclosure of any senior deed of trust so long as the City is given notice as provided in Section 21.2 in order to exercise its remedies under Section 20.2; (c) The lease of any individual residential unit in the Project; (d) (1) A transfer of the Developer's interest in the Property by foreclosure or deed in lieu of foreclosure to any bona fide third -party lender holding a lien encumbering the Property (or its nominee); and, (ii) following a foreclosure or a transfer of the Property by deed in lieu thereof, the first subsequent transfer to a third -party; (e) A transfer of limited partnership interests in Developer; (f) Transfer of the Property pursuant to the tenns of a purchase option or right of first refusal executed in connection with Developer's Partnership Agreement; and, (g) The removal of the general partner of Developer as permitted under Developer's Partnership Agreement. 9.14. Applicable Law. This Agreement shall be interpreted, governed and enforced under federal and State of California laws. 9.15. Third Parties. This Agreement is made for the sole benefit of Developer and the City and their successors and assigns, and no other person or persons shall have any rights or remedies under or by reason of this Agreement or any right to the exercise of any right or power of the City hereunder or arising from any default by Developer, nor shall the City owe any duty whatsoever to any claimant for labor performed or materials furnished in connection with the construction of the Property. 9.16. Control of Property. The parties acknowledge that the City has not at any time participated in any manner in the management or operation of the Property, and will not so participate at any time hereafter. Section 10. CONDITIONS FOR CONSTRUCTION Developer shall comply with this Section until the Certificate of Completion is issued. 10.1. Permits and Approvals. Developer shall diligently obtain all permits, including all building permits, licenses, approvals, exemptions and other authorizations of 25 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 39 3/7/2023 EXHIBIT 3 Governmental Agencies required in connection with the construction of the Property. 10.2. Commencement and Completion of Construction. The construction shall be considered complete for purposes of this Agreement only when: (a) all work described has been completed and fully paid for; and, (b) all work requiring inspection or certification by Governmental Authority has been completed and all requisite certificates, approvals and other necessary authorizations for use of the Property as an affordable rental housing development (including required final certificates of occupancy) have been obtained. 10.3. RESERVED. 10.4. Entry and Inspection. At all times prior to completion of the construction, upon reasonable notice of no less than two (2) business' days, City and their agents shall have: (a) the right of free access to the Property and all sites away from the Property where materials for the construction are stored; (b) the right to inspect all labor performed and materials furnished for the construction; and, (c) the right to inspect and copy all documents pertaining to the construction. 10.5. Compliance with Section 3 Clause. Section 3 of the Housing and Urban Development Act of 1968, 12 U.S.C. 1701u, as amended by Section 915 of the Housing and Community Development Act of 1992, requires that economic opportunities generated by HUD financial assistance for housing and community development programs be targeted toward low- and very low- income persons. Whenever HUD assistance generates opportunities for employment or contracting, state and local grantees, as well as other recipients of HUD housing assistance funds must, to the greatest extent feasible, provide these opportunities to low- and very low- income persons and to businesses owned by or employing low- and very low- income persons. Section 3 applies to projects for which HUD's share of project costs exceeds $200,000 and contracts and subcontracts awarded on projects for which HUD's share or project costs exceeds $200,000 and the contract or subcontract exceeds $100,000. For purposes of this Section 3 Clause and compliance thereto, whenever the word "contractor" is used it shall mean and include, as applicable, the Developer, and its contractor and subcontractor(s), if any. The particular text to be utilized in any and all contracts of any contractor doing work covered by Section 3 shall be in substantially the form of the following, as reasonably determined by the City, or as directed by HUD or its representative, and shall be executed by the applicable contractor under penalty of perjury: (a) "The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u ("Section 3"). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD - assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons [inclusive of Extremely Low Income Households and Very Low Income Households served by the Project], particularly persons who are recipients of HUD assistance for housing. 26 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 40 3/7/2023 EXHIBIT 3 (b) The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. (c) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of notices in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number of job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of person(s) taking applications for each of the position; and the anticipated date the work shall begin. (d) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. (e) The contractor will certify that any vacant employment positions, including training positions, that are filled (a) after the contractor is selected but before the contract is executed, and (b) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. (f) Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts." After the foregoing Section 3 Clause, there shall be a signature block for the contractor, as applicable, the following text shall be included immediately above the signature block: "The contractor/provider by his/her signature affixed hereto declares under penalty of perjury that contractor has read the requirements of the Section 3 Clause and accepts all its requirements contained therein for all of his/her operations related to this contract." To the extent applicable, the Developer shall comply and/or cause compliance with Section 3 Clause requirements for the Project. For example, when and if Developer or its contractor(s)/subcontractor(s) hire(s) full time employees, rather than volunteer labor or materials, Section 3 is applicable and all disclosure and reporting requirements apply. 27 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 41 3/7/2023 EXHIBIT 3 10.6. Construction Information. From time to time during the course of the construction, within ten (10) Business Days following City's written demand therefor, Developer shall furnish requested reports of project costs, progress schedules and AIA G702 (application and certification for payment) contractors' costs breakdowns for the construction, itemized as to trade description and item, showing the name of the contractor(s) and/or subcontractor(s), and including such indirect costs as real estate taxes, legal and accounting fees, insurance, architects' and engineers' fees, loan fees, interest during construction and contractors' overhead. 10.7. Protection Against Liens. Developer shall diligently file a valid Notice of Completion upon completion of the construction, diligently file a notice of cessation in the event of a cessation of labor on the construction for a period of thirty (30) days or more, and take all actions reasonably required to prevent the assertion of claims of lien against the Property. In the event that any claim of lien is asserted against the property or any stop notice or claim is asserted against the City by any person furnishing labor or materials to the Property, Developer shall promptly give written notice of the same to City and shall, promptly and in any event within ten (10) Business Days after written demand therefor, (a) pay and discharge the same, (b) effect the release thereof by delivering to City a surety bond complying with the requirement of applicable laws for such release, or (c) take such other action as City may reasonably require to release City from any obligation or liability with respect to such stop notice or claim. Nothing in this Section 10.7 shall limit or prohibit Developer's right to contest any claim of lien, stop notice or claim described herein in good faith. 10.8. General Contractors who are Related Parties to the Developer. If the Project is developed with general contractors who are owned or controlled by Developer, its members or its affiliates ("Related Parties") to the Developer, the Developer must be audited to the subcontractor level by an outside auditing firm approved by the City. The Developer shall pay for the audit to the subcontractor level by an outside auditing firm. Section 11. FEDERAL (HOME -ARP AND HOME PROGRAM) COVENANTS 11.1. The Developer shall carry out the design, construction and operation of the Project, in conformity with all applicable laws, regulations, and rules of governmental agencies having jurisdiction, including without limitation and to the extent applicable, the HOME -ARP and HOME Requirements and the legal requirements set forth in "Exhibit G" attached to this Agreement and the statutes referenced therein. For purposes of this paragraph, "HOME -ARP Requirements" mean the requirements of the HOME -ARP Program as outlined in the HOME -ARP Notice and "HOME Requirements" mean the requirements of the HOME Investment Partnership Act, as amended (42 U.S.C. § 12741, et seq.), and the implementing regulations (24 C.F.R. § 92, et seq.), and the legal requirements summarized or referenced in Exhibit G attached hereto and incorporated herein by this reference. 11.1.5 Reserved. 11.2. Qualification as Affordable Housing. As more particularly provided in 28 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 42 3/7/2023 EXHIBIT 3 the Affordability Restrictions on Transfer of Property, Developer shall use, manage and operate the Property in accordance with the requirements of the HOME -ARP regulations and 24 CFR 92.252 so as to qualify the housing on the Property as Affordable Housing with affordable rents. 11.3. Tenant and Participant Protection. Developer shall comply with the requirements of 24 CFR 92.253. 11.4. Local Preference. With regard to the leasing of the Restricted Units, inclusive of the persons referred off of the County of Orange coordinated entry system for the HOME -ARP Units, and subject to compliance with the HOME -ARP Regulations, the HOME Regulations and applicable California and federal fair housing laws, and the requirements of Section 142(d) and Section 42 of the Internal Revenue Code, Developer's tenant selection plan shall include a preference for individuals or families who qualify as Chronically Homeless, and satisfy the criteria below, in the following order of priority: (a) First priority shall be given to persons who are either: (i) Residents of Santa Ana; and/or (ii) Working in Santa Ana at least 32 hours per week for at least the last 6 months. (b) The Restricted Units will still be available to the general public, as required under Section 142(d) of the Code and Section 42 of the Code, and these preferences do not restrict the availability of the units to the general public who qualify as Extremely Low Income Households. 11.5. Handicapped Accessibility. Developer shall comply with: (a) Section 504 of the Rehabilitation Act of 1973, and implementing regulations at 24 CFR 8C governing accessibility of projects assisted under the HOME Program; and, (b) the Americans with Disabilities Act of 1990, and implementing regulations at 28 CFR 35-36, in order to provide handicapped accessibility to the extent readily achievable. 11.6. Use of Debarred. Suspended, or Ineligible Participants. Developer shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. 11.7. Maintenance of Drug -Free Workplace. Developer shall certify that Developer will provide a drug -free workplace in accordance with 24 CFR 84.13. 11.8. Lead -Based Paint. Developer shall comply with the requirements of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846) and implementing regulations at 24 CFR 35, as applicable. 11.9. Affirmative Marketing. Developer shall implement and perform such affirmative marketing procedures and requirements for the Property (24 CFR 92.351) in 29 W1SEPlace Permanent Supportive Housing itl an Agreement Rounc13 — 43 3/7/2023 EXHIBIT 3 compliance with the City's adopted Affordable Housing Funds Policies and Procedures (the "City's Program"), which may be amended from time to time, except to the extent the City's Program is inconsistent with any applicable requirements of the HOME -ARP Program or the Loan Documents. 11.10. Equal Opportunity and Fair Housing. Developer shall carry out the construction and perform its obligations under this Agreement in compliance with all of the state and federal laws and regulations regarding equal opportunity and fair housing described in 24 CFR 92.350. 11.11. Property Standards. Developer shall cause the Property to meet the housing quality standards set forth in 24 CFR 882.109, as well as all applicable local, state and federal codes and ordinances, including zoning ordinances. 11.12. Displacement and Relocation. Developer acknowledges and agrees that, pursuant to 24 CFR 92.253 and consistent with the other goals and objectives of this part, City must ensure that it has taken all reasonable steps to minimize the displacement of persons as a result of the Project. Furthermore, to the extent feasible, any existing residential tenants must be provided a reasonable opportunity to lease and occupy a suitable, decent, safe, sanitary and affordable dwelling unit on the Property upon completion of the construction. Developer agrees to cooperate fully and completely with City in meeting the requirements of 24 CFR 92.253 and shall take all actions and measures reasonably required by the Executive Director in connection therewith. All applicable state guidelines must also be followed. (a) Developer acknowledges and agrees that if the Project requires temporary or permanent relocation of existing residential or commercial tenants it will hire a Relocation Consultant to provide relocation services, pursuant to the Uniform Relocation Act and Real Property Acquisition Policies Act of 1970 ("URA") and 24 CFR 92.353. (b) If a Relocation Consultant is required to be retained pursuant to Section 11.12(a), the City, Developer, and Relocation Consultant will meet periodically during the relocation to provide updates and review tenant files, including at Project approval and prior to final benefit calculations. The Developer and Relocation Consultant shall carry out activity in compliance with URA and the City's Acquisition and Relocation Policy and Procedures Manual ("Manual"). (c) If a Relocation Consultant is required to be retained pursuant to Section 11.12(a), the Developer and Relocation Consultant shall maintain accurate records and files pertaining to the temporary and permanent relocation of tenants, in accordance with URA and the City's Manual. (d) If a Relocation Consultant is required to be retained pursuant to Section 11.12(a), the Developer and Relocation Consultant shall provide all relocation and tenant files to the City once relocation is complete at the Project. (e) Developer Responsible for Administration of Relocation. Developer acknowledges that former tenants and occupants of the Property may be eligible 30 W1SEPlace Permanent Supportive Housing itan Agreement Round13 — 44 3/7/2023 EXHIBIT 3 for advisory assistance, monetary payments, and other benefits under the Relocation Laws. Developer shall be fully responsible for administering determinations of eligibility, the extent of advisory assistance, and the scope and amount of benefits and monetary payments pursuant to the applicable Relocation Laws, subject to the right, but not obligation, to oversee Relocation by the City. Developer shall cause to be provided and shall pay Relocation assistance and benefits, if any, in accordance with and to the extent required by applicable Relocation Laws to each eligible tenant/occupant that is required to vacate the Property as a result of implementation of the Project. The City's rights are limited to determining compliance with Relocation Laws. Developer is and shall remain solely responsible to pay all out-of-pocket costs for direct payments, if any, to eligible person(s), household(s) and business(es) for Relocation assistance and benefits due and paid and for any other costs incurred related to Relocation, including a Relocation consultant, and any and all costs or fees incurred therefor. (f) Indemnification by Developer Relating to Relocation. Developer hereby covenants and agrees to indemnify, save, protect, hold harmless, pay for, and defend the Indemnitees from and against any and all liabilities, suits, actions, claims, demands, penalties, damages (including without limitation penalties, fines, and monetary sanctions), losses, costs, or expenses, including without limitation, consultants' and attorneys' fees, or relocation benefits claimed or payable under any legal obligation arising from relocation of persons on the Property (for purposes of this Section 11.12, the foregoing shall be referred to as "Liabilities") which may now or in the future be incurred or suffered by Indemnitees by reason of, or resulting, in full or in part, or in any respect whatsoever from the relocation of residents of the current site pursuant to or resulting from the implementation of this Agreement, except to the extent arising out of the active negligence or willful misconduct of any of the Indemnitees or a breach by the City of any representation, warranty or covenant contained in this Agreement. At the request of Developer, the City shall cooperate with and assist Developer in its defense of any such claim, action, suit, proceeding, loss, cost, damage, City liability, deficiency, fine, penalty, punitive damage, or expense; provided that City shall not be obligated to incur any expense in connection with such cooperation or assistance. (g) Release. Developer, on behalf of itself and its affiliates, and any and all successors and assigns hereby fully and finally releases the Indemnitees from any and all manner of actions, causes of action, suits, obligations, liabilities, judgments, executions, debts, claims and demands of every kind and nature whatsoever, known and unknown, which Developer and any of its affiliates, successors or assigns may now have or hereafter obtain against the Indemnitees by reason of, arising out of, relating to, or resulting from in full or in part, the election of Developer to proceed with the Project pursuant to this Agreement except to the extent arising out of the active negligence or willful misconduct of any of the Indemnitees or a breach by the City of any representation, warranty or covenant contained in this Agreement (collectively, "Claims"), which release shall include but not be limited to any Claims for Relocation assistance or benefits under federal, state, local, or any other applicable laws or Governmental Requirements, except to the extent arising out of the active negligence or willful misconduct of any of the Indemnitees or a breach by the City of any representation, warranty or covenant contained in this Agreement. The parties agree that, with respect to the release of Claims as set forth above, 31 W1SEPlace Permanent Supportive Housing itl an Agreement Rounc13 — 45 3/7/2023 EXHIBIT 3 all rights under Section 1542 of the California Civil Code and any similar law of any state or territory of the United States are expressly waived. Section 1542 reads as follows: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party." 11.13. Other Program Requirements. Developer shall carry out each activity in compliance with all federal laws and regulations described in subpart H of 24 CFR 92, except that Developer does not assume City's responsibilities for environmental review in 24 CFR 92.352 or the intergovernmental review process in 24 CFR 92.359. 11.14. Request for Disbursements of Funds. Notwithstanding anything contained in this Agreement to the contrary, Developer may not request disbursements of funds under this Agreement until the funds are needed for payment of eligible costs (such funds shall be used solely towards the construction of the Project). The amount of each request shall be limited to the amount needed. 11.15. Eligible Costs. Developer shall use HOME -ARP Funds to pay costs defined as "eligible costs" pursuant to the HOME -ARP Notice and, as applicable, in 24 CFR 92.206. 11.16. Records and Reports. Developer shall maintain and from time to time submit to City such records, reports and information as the Executive Director may reasonably require in order to permit City to meet the record keeping and reporting requirements required of it pursuant to 24 CFR 92.508 and the HOME -ARP Program. 11.17. Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. Developer shall comply with the requirements and standards of 2 CFR 200. 11.18. Conflict of Interest. Developer shall comply with and be bound by the conflict of interest provisions set forth at 24 CFR 570.611, as well as state regulations pertaining to conflict of interest. 11.19. Monitoring. Developer shall allow the City to conduct periodic inspections of the Restricted Units, inclusive of the HOME -ARP Units during the HOME -ARP Compliance Period, on the Property as required by the HOME -ARP Program after the date of construction completion, with reasonable advance written notice of not less than two (2) business days. Developer shall cure any defects or deficiencies found by the City while conducting such inspections within two weeks of written notice thereof, or such longer period as is reasonable within the reasonable discretion of the City. Not less than once per year, the City shall review Developer's activities and operations under the Agreement and Developer's compliance with the HOME -ARP Requirements. Such review may include an on -site inspection of the Project units (including unit interiors). If such an on -site inspection of the Project units is to be undertaken, the City 32 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 46 3/7/2023 EXHIBIT 3 shall coordinate such inspection with Developer. The monitoring required pursuant to this paragraph shall be in compliance with the requirements of 24 C.F.R. § 92.504. 11.20. Recertification of Tenant Income. (a) Developer shall take all necessary steps to ensure that each HOME - ARP Unit is initially rented to a household that meets the requirements of a HOME -ARP Qualifying Population as further defined in the HOME -ARP Notice. The Developer shall take all necessary steps to review the income of all other Restricted Unit tenants prior to renting to them, as well as reviewing current tenants on an annual basis, in accordance with the HOME -ARP Program, and HOME regulations and guidelines. Every fifth (5th) year, Developer shall require new original income documents to be submitted by tenants in the City's HOME -ARP Units. Tenants in the City's HOME -ARP Units whose incomes no longer comply with federal income guidelines, including HOME -ARP guidelines, shall have their rents adjusted in accordance with federal HOME guidelines (24 CFR 92.252- 92.253). (b) HOME -ARP Units continue to qualify as affordable housing despite a temporary non-compliance caused by increases in the incomes of existing tenants if actions satisfactory to HUD are being taken to ensure that all vacancies are filled in accordance with this section (24 CFR 92.252-92.253) until the non-compliance is corrected. 11.21. Other HOME -ARP Program Requirements. Developer shall comply with all other applicable requirements of the HOME -ARP and HOME Programs, including but not limited to all requirements regarding record -keeping and confidentiality set forth in the HOME -ARP Notice. 11.22. Controlling Covenants. If there is a discrepancy between State of California and Federal law with regard to any of the aforementioned covenants, the more stringent shall apply. 11.23. Faith Based Activities. To the extent applicable to the Project, in accordance with 24 CFR 92.257, Developer will comply with the restrictions on the use of HOME -ARP funds for faith based activities as set forth in Section 92.257. Section 12. MAINTENANCE, MANAGEMENT, OPERATION, PRESERVATION AND REPAIR OF PROPERTY 12.1. Maintenance. Developer shall maintain the Property (and all abutting grounds, sidewalks, roads, parking and landscape areas which Developer is otherwise required to maintain) in good condition and repair; shall operate the Property in a businesslike manner; shall prudently preserve and protect its own as well as the City's interests in connection with the Property; shall not commit or permit any waste or deterioration of the Property (except for normal wear and tear); shall not abandon any portion of the Property or leave the Property unguarded or unprotected as reasonably required; and shall not otherwise act, or fail to act, in such a way as to unreasonably increase the risk of any damage to the Property or of any other impairment of City's 33 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 47 3/7/2023 EXHIBIT 3 interests under the Loan Documents. City acknowledges and agrees that as of the effective date of this Agreement, Developer's installation of security cameras at the Property shall satisfy Developer's obligation pursuant to this Section 12.1 not to leave the Property unguarded or unprotected. Without limiting the generality of the foregoing, and except as otherwise agreed by City in writing from time to time, Developer shall promptly and faithfully perform and observe each of the following provisions: 12.2. Alterations and Repair. Developer shall not remove, demolish or materially alter any Improvement without City's prior consent, except to make non- structural repairs that preserve or increase the Property's value, and shall promptly restore, in a good and professional manner, any Improvement (or other aspect or portion of the Property) that is damaged or destroyed from any cause. 12.3. Compliance. Developer shall comply with all laws and requirements of Governmental Authority (including, without limitation, all requirements relating to the obtaining of Governmental Authority approvals), all Governmental Authority approvals and all rights of third parties, relating to Developer, the Property or Developer's business thereon. 12.4. Taxes and Impositions. Developer shall pay, prior to delinquency, all of the following (collectively, the "Impositions"): (a) all general and special real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including, without limitation, non -governmental levies and assessments pursuant to applicable covenants, conditions or restrictions (if any); and (c) all license fees, taxes and assessments imposed on City (other than City's income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Developer may pay any Imposition in installments (together with any accrued interest). 12.5. Right to Contest. Developer shall not be required to pay any Imposition so long as: (a) its validity is being actively contested in good faith and by appropriate proceedings; (b) Developer has demonstrated to City's reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair City's interests under the Loan Documents; and, (c) Developer has furnished City with a bond or other security reasonably satisfactory to City in an amount not less than 100% of the applicable claim (including interest and penalties). 12.6. Evidence of Payment. Upon demand by City from time to time, Developer shall deliver to City, within thirty (30) days following the due date of any Imposition, evidence of payment reasonably satisfactory to City. 12.7. Books, Records and Annual Statement. Developer shall maintain complete books of account and other records reflecting the construction and operation of the Project in accordance with generally accepted accounting principles applied on a 34 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 48 3/7/2023 EXHIBIT 3 consistent basis. During the Term of Agreement, the amount of the Residual Receipts shall be determined on the basis of an annual audited financial statement (" Annual Statement"), for the preceding year, beginning with the first year of operation of all or any part of the Project, prepared at the Developer's expense by an independent certified public account firm acceptable to the City. Such Annual Statement shall include an updated statement based on the inforination provided in or required by Exhibit C. During the Term of Agreement, the Developer shall submit the Annual Statement and any payment to the City not later than one hundred twenty (120) days after closing of the Developer's previous year's books. The first Annual Statement submitted by the Developer for the City/HOME- ARP Loan shall include the period from the Completion of Construction to the close of that year's books. The City shall review and approve such statement (such approval not to be unreasonably withheld or delayed), or request revisions, within ninety (90) days after receipt. In the event that Developer's calculation of Residual Receipts is found to be incorrect as a result of a City review, and has underreported, Developer shall pay to the City the full amount of additional amounts owed within thirty (30) days of notice of such error. The terms of this subsection shall not be the exclusive method by which the City may review Residual Receipts payments by the Developer. In the event the discovery occurs at any time subsequent to the ninety (90) day period for that year's books, Developer shall pay to the City the full amount of such additional amounts owed within thirty (30) days after the error is discovered. Notwithstanding the foregoing, no previous action or inaction by the City shall prohibit the City from requesting repayment of any unpaid, owed amounts of Residual Receipts at any time during the term of this Agreement or thereafter within ten (10) years of when such unpaid Residual Receipts were due. The Developer shall pay to the City the full amount of such additional amounts owed within thirty (30) days of notice of such errors for periods prior to the previous year. 12.8. Project Operating Account. Developer shall establish an interest bearing account to be known as the Operating Reserve Account. Upon the Conversion Date, Developer shall deposit an amount into the Operating Reserve Account sufficient to pay at least three (3) months of operating expenses and three (3) months of mandatory debt service payments ("Target Balance"), or such greater amount as may be required by a senior lender or the Tax Credit Investor. Funds shall be invested subject to the prior written approval of the City (such approval not to be unreasonably withheld or delayed), and any earnings shall become and remain a part of the Operating Reserve. Funds may be drawn only when revenue is insufficient to pay operating expenses and may be used as permitted under Developer's Partnership Agreement. Promptly following any withdrawals from the Operating Reserve Account, written notice shall be provided to the City which provides a narrative of the nature of the operating deficits that are being cured, including all necessary amounts to cure them. If the balance in the Operating Reserve Account falls below the amount required to pay three (3) months of operating expenses and three (3) months of mandatory debt service payments, then Developer shall apply Residual Receipts, when and if available, or other funds, to the replenishment of Operating Reserves until the Target Balance is achieved. 35 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 49 3/7/2023 EXHIBIT 3 12.9. Replacement Reserve Account. At or before the Conversion Date, Developer shall establish an interest bearing account to be known as the Replacement Reserve Account. Annually prior to March 31 of each year, Developer shall deposit into the Replacement Reserve Account an amount equal to a minimum of two hundred fifty dollars ($250) per unit but shall not exceed five hundred dollars ($500) per unit, which amounts may increase by 3% annually, or such higher amount as may be required by the Tax Credit Investor or Senior Lender and approved by City; provided, however, that City acknowledges that the Tax Credit Investor and/or Senior Lender will require an annual deposit of funds into the Replacement Reserve Account for all units, and City hereby approves such requirement and agrees that any replacement reserve established by Developer and held by the Tax Credit Investor and/or Senior Lender shall satisfy the requirements of this Section 12.9. The funds in the Replacement Reserve Account shall be held in an interest bearing account, and any earnings shall become and remain a part of the Replacement Reserve. The Developer may withdraw funds from the Replacement Reserve Account solely to replace or maintain Project assets that have a useful life of more than one (1) year in accordance with Generally Accepted Accounting Principles ("GAAP"), and have been or will be depreciated on the Partnership Tax Return, Form 1040P, filed with the Internal Revenue Service by the Developer's accountant. Promptly following any withdrawals from the Replacement Reserve Account, written notice shall be provided to the City which provides a narrative of the nature of the repairs that are being made, including all necessary amounts to repair them. Developer shall not withdraw funds from the Replacement Reserve Account for any other purpose without the prior written approval of the City. In the event of a failure by the Developer to adequately maintain the Project, or pay operating expenses, mandatory debt service payments, or other payments required under the Loan Documents or Senior Loan Documents, or during the continuance of an event of default by Developer under the Loan Documents or Senior Loan Documents that would provide for the acceleration of the City/HOME-ARP Loan or Senior Loan, then the City may, after delivery of written notice to Developer and the expiration of any applicable cure periods and subject to the rights of any Senior Lender, apply the funds in the Replacement Reserve Account to the City/HOME-ARP Loan, the Senior Loan, or use such funds for the maintenance, improvement, or continued operation of the Project. 12.10. HOME -ARP Subsidy Reserve. (a) A special "HOME -ARP Subsidy Reserve" shall be created and maintained as a segregated interest -bearing account held by the Developer for a minimum 15-year HOME -ARP Subsidy Reserve Compliance Period, subject to subsections (c) and (d) below. The HOME -ARP Subsidy Reserve shall be capitalized in the amount established at closing and approved by the City in accordance with Sections 5.1 and 6.1 of this Agreement, subject to the requirements of Section 6 above. Any interest earned on funds in the HOME -ARP Subsidy Reserve shall be added to and become part of the HOME -ARP Subsidy Reserve. (b) The HOME -ARP Subsidy Reserve shall be used in accordance with, and subject to, all requirements of the HOME -ARP Program, to pay any HOME- 36 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 50 3/7/2023 EXHIBIT 3 ARP Operating Expense Deficit which occurs during the HOME -ARP Compliance Period; provided, however, the Developer shall have no right to expend funds from the HOME -ARP Subsidy Reserve while a Developer Event of Default is continuing. (c) If at any time during the HOME -ARP Subsidy Reserve Compliance Period, the Developer experiences a cash flow shortfall resulting in a HOME -ARP Operating Expense Deficit which the Developer believes qualifies for payment out of the HOME -ARP Subsidy Reserve, Developer shall submit a written request to the City for consent to a disbursement from the HOME -ARP Subsidy Reserve including the specific expenses for which the disbursement is requested. The City shall approve or disapprove such request within ten (10) business days of receipt of the written request; such approval shall not be unreasonably withheld. (d) In no event shall any of the HOME -ARP Subsidy Reserve funds be used to pay for any partnership fees or asset management fees of the Partnership. (e) The HOME -ARP Subsidy Reserve is intended to assure affordability of the HOME -ARP Units during the HOME -ARP Subsidy Reserve Compliance Period. If the HOME -ARP Units continue to operate in accordance with the HOME -ARP requirements, per enforceable restrictions imposed by the City, after the HOME -ARP Subsidy Reserve Compliance Period, unexpended funds in the HOME -ARP Subsidy Reserve at the end of the HOME -ARP Subsidy Reserve Compliance Period may be retained in the HOME -ARP Subsidy Reserve and utilized to cover HOME -ARP Unit Operating Expense Deficits associated with HOME -ARP Units during the extended HOME -ARP Subsidy Reserve Compliance Period. (f) Unexpended funds in the HOME -ARP Subsidy Reserve at the time the HOME -ARP Restrictions are no longer enforced must be returned to the City and deposited in the City's HOME account and recorded as HOME Program income. (g) Per the HOME -ARP Regulations, no less than annually, the City will review the HOME -ARP Subsidy Reserve account to determine that the account is appropriately sized based on the projected operating deficits of the HOME -ARP Units restricted to occupancy for HOME -ARP Qualifying Populations. (h) If the Developer re -syndicates the tax credit financing any time during the HOME -ARP Compliance Period, the City, at the City's sole and absolute discretion, shall require the Developer to either: (i) allow the HOME -ARP Subsidy Reserve to remain with the Property; or (ii) repay any amounts remaining in the HOME - ARP Subsidy Reserve as of the date of the re -syndication to the City. (i) Net operating income resulting from the HOME -ARP Subsidy Reserve is not permitted and is prohibited by this Agreement. Section 13. NONDISCRIMINATION COVENANTS 13.1. Obligation to Refrain from Discrimination. Developer covenants and agrees that: 37 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 51 3/7/2023 EXHIBIT 3 (a) In Use of Property. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, mental or physical disability, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendors of the Property. (b) In Affordable Housing Restrictions. The foregoing covenant shall: (a) be included in the Affordability Restrictions on Transfer of Property; (b) run with the land; and, (c) remain effective for the Term of Agreement. (c) In Employment. In construction of the Property, Developer shall not discriminate against any employee or applicant because of race, color, creed, religion, sex, marital status, mental or physical disability, national origin, or ancestry. Developer shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. (d) In all Contracts. Developer shall cause the foregoing covenants to be inserted in all contracts for any work covered by this Agreement so that such provisions will be binding upon each contractor and subcontractor for the benefit of City, provided that the foregoing covenant shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. Section 14. ENVIRONMENTAL MATTERS 14.1. Representation and Warranty. Except as disclosed in writing to the City including the Environmental Reports prepared on behalf of Developer and delivered to the City, Developer has no knowledge: (a) of the presence on, under or about the Property, now or in the past, of any Hazardous Materials in violation of applicable law, or of the transportation to or from the Property of any Hazardous Materials in violation of applicable law; (b) that asbestos or polychlorinated biphenyls (PCBs) are contained in or stored on the Property; or, (c) that there are any underground storage tanks located in, on or under the Property. 14.2. Compliance with Environmental Laws. Developer shall: (a) comply with all environmental laws and environmental permits applicable to the construction of the Property; (b) promptly pay or cause to be paid all costs and expenses incurred by reason of such compliance; (c) keep the Property free and clear of any environmental claims or liens imposed pursuant to any applicable environmental law; and, (d) obtain and renew all environmental permits required for ownership or use of the Property. 14.3. Presence of Hazardous Materials. Developer shall not, and shall not permit anyone else to, generate, use, treat, store, handle, release, or dispose of Hazardous Materials on the Property, or transport or permit the transportation of Hazardous Materials to or from the Property except for de minimis quantities used at the Property in compliance 38 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 52 3/7/2023 EXHIBIT 3 with all applicable environmental laws and required in connection with the routine construction, operation and/or maintenance of the Property. 14.4. Notice of Environmental Matters. Developer shall promptly advise City in writing of any of the following: (a) any pending or threatened environmental claim against Developer or the Property; (b) any condition or occurrence that: (i) results in noncompliance with any applicable environmental law; (ii) could reasonably be anticipated to cause the Property to be subject to any restrictions on the ownership, occupancy, use or transferability of the Property under any environmental law; or, (iii) could reasonably be anticipated to form the basis of an environmental claim against the Property or Developer. 14.5. Environmental Indemnification by the Developer. Developer agrees to defend, indemnify and hold harmless the City and their respective officers, directors, employees and agents (collectively the "Indemnitees") from and against any and all obligations (including removal and remediation), losses, claims (including third party claims), suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), costs and expenses (including reasonable fees of consultants and attorneys) of whatever bind or nature whatsoever that may at any time be incurred by or imposed on the Indemnitees directly or indirectly based on, or arising or resulting from the actual or alleged presence of Hazardous Materials on the Property except to the extent arising from the active negligence, willful misconduct and/or illegal actions of any Indemnitee and the Existing Hazardous Materials (as such term is defined in the Ground Lease). Section 15. OTHER AFFIRMATIVE COVENANTS While any obligation of Developer under the City/HOME-ARP Loan Note or City/HOME-ARP Loan Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that the Executive Director otherwise consents in writing: 15.1. Existence. Developer's Managing General Partner shall maintain its existence in good standing under the laws of the State of California, and Developer shall provide documentation of such status annually to the City as set forth in Section 21.2 15.2. Protection of Lien. Developer shall maintain the lien of the City/HOME- ARP Loan Deed of Trust as a valid second priority deed of trust on the Property and take all actions, and execute and deliver to City all documents, reasonably required by City from time to time in connection therewith. 15.3. Notice of Certain Matters. Developer shall give notice to City, within fifteen (15) days of Developer's learning thereof, of each of the following: (a) any filed litigation or claim affecting or relating to the Property and involving an amount in excess of $25,000; and any litigation or claim that might subject Developer or any general partner of Developer to liability in excess of $50,000, whether covered by insurance or not; (b) any material dispute between Developer and a Governmental 39 W1SEPlace Permanent Supportive Housing itl an Agreement Rounc13 — 53 3/7/2023 EXHIBIT 3 Authority relating to the Property, the adverse determination of which would reasonably be expected to have a material adverse effect on the Property, (c) any change in Developer's principal place of business; (d) any aspect of the Improvements that is not in substantial conformity with the plans or code; (e) any Event of Default or event which, with the giving of notice or the passage of time or both, would constitute an Event of Default; (f) any material default by Developer or any other party under any Senior Loan document, or the receipt by Developer of any notice of default under any Senior Loan document; (g) the creation or imposition of any mechanics' or materialmans' lien or other lien against the Property which might materially affect the Property; and/or (h) any material adverse change in the financial condition of Developer. 15.4. Further Assurances. Developer shall execute and acknowledge (or cause to be executed and acknowledged) and deliver to City all documents, and take all actions, reasonably required by City from time to time to confirm the rights created or now or hereafter intended to be created under the Loan Documents; to protect and further the validity, priority and enforceability of the City/HOME-ARP Loan Deed of Trust; to encumber by the City/HOME-ARP Loan Deed of Trust any property intended by the terms of any Loan Document(s) to be covered by the City/HOME-ARP Loan Deed of Trust or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated thereunder. Notwithstanding anything to the contrary set forth herein, the Developer shall have no obligation to execute any document, or take any action, which would: (1) change a material term of any Loan Document; (ii) change or impair any material right of Developer; and/or, (iii) increase the liability of Developer or any partner thereof. 15.5. Annual Financial Statements. Developer shall deliver to City, within one hundred twenty (120) days after the end of each Calendar Year following issuance of a Certificate of Completion: (a) a certified public accountant reviewed balance sheet for Developer as of the end of such Calendar Year and a certified public accountant reviewed statement of profit and loss for Developer and for Developer's operations in connection with the Property for such Calendar Year, together with all supporting schedules; (b) a certificate of such certified public accountant that such documents were reviewed by such certified public accountant in accordance with generally accepted accounting principles and otherwise comply with generally accepted accounting principles review requirements; and, (c) a certificate of Developer's Managing General Partner that such documents: (i) were prepared in accordance with generally accepted accounting principles applied on a consistent basis or in accordance with such other principles or methods as are reasonably acceptable to City; (ii) fairly present Developer's financial condition; (iii) show all material liabilities, direct and contingent; and, (iv) fairly present the results of Developer's 40 W1SEPlace Permanent Supportive Housing `ity"douncil°an HgreemenL 13 — 54 3/7/2023 EXHIBIT 3 operations. Developer shall also provide the City with any other annual audit reports issued by other monitoring agencies upon written request. 15.6. Audits and Access to Records. Developer agrees that City, the U.S. Department of Housing and Urban Development, the Comptroller General of the United States or any of their authorized representatives shall have the right of access, upon reasonable notice, to any books, documents, papers, or other records of Developer that are pertinent to this Agreement in order to make audits, examinations, abstracts, excerpts or transcripts. Developer will maintain all books and records pertaining to this Agreement for a period of not less than five (5) years after all matters pertaining to this Agreement (i.e., audit, disputes or litigation) are resolved in accordance with applicable federal or state laws, regulations or policies, and when a period of affordability or recapture applies to Developer's activities, for a period of not less than five (5) years after the Affordability Period ends. 15.7. Compliance with Federal and State Laws. Nothing contained herein shall require the Developer to do anything contrary to or refrain from doing anything required by federal and state laws and regulations promulgated thereunder applicable to the management, maintenance, operation and rental of the Project or the Property. The Developer shall operate the Project, and cause all work to be performed on the Project, in compliance with (i) all applicable laws, ordinances, rules and regulations of federal, state, or municipal governments or agencies now in force or that may be enacted hereafter, including (without limitation and where applicable) state prevailing wage provisions, (ii) the HUD housing quality standards set out in 24 C.F.R. 5.703 and the cost-effective and, to the extent applicable, energy conservation and effectiveness standards in [24 C.F.R. 965.301], and (iii) all directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. Any construction, renovation, or capital improvement at the Project shall proceed only after procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction. Section 16. OTHER NEGATIVE COVENANTS While any obligation of Developer under the City/HOME-ARP Loan Note or City/HOME-ARP Loan Deed of Trust remain outstanding, the following provisions shall apply, except to the extent that the Executive Director otherwise consents in writing: 16.1. Default on Senior Loan. Developer shall not default on any of the Senior Loan Documents, provided however, that Developer shall have such period as is provided in the Senior Loan Documents during which to effectuate a cure. 16.2. Sale or Lease of Property. Unless and until Developer has received a Certificate of Completion for the construction from City, except for a Permitted Transfer, Developer shall not sell, lease, sublease or otherwise transfer all or any part of the Property or any interest therein without the prior written consent of the Executive Director, which consent may be withheld in the Executive Director's sole and absolute discretion. In connection with the foregoing consent requirements, Developer acknowledges that City 41 W1SEPlace Permanent Supportive Housing itl an Agreement Rounc13 — 55 3/7/2023 EXHIBIT 3 relied upon Developer's particular expertise in entering into this Agreement and continues to rely on such expertise to ensure the satisfactory completion of the construction. Notwithstanding anything to the contrary contained herein, a "transfer" shall not include: (i) a transfer of any general partner's interest in Developer when made in connection with the exercise by the Developer's Limited Partner of its rights upon a default by a general partner under the Developer's Partnership Agreement or upon a general partner's withdrawal in violation of the Partnership Agreement, so long as the removal and substitution of the defaulting general partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the general partner with a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the managing general partner of Developer pursuant to the right of first refusal or to the general partners of Developer pursuant to the purchase option, as provided for in the Partnership Agreement; (111) any transfer of the Limited Partner's interest in accordance with the Partnership Agreement; and, (iv) any sale, transfer or other disposition of an interest in a Limited Partner of the Developer. Section 17. CERTIFICATE OF COMPLETION Upon satisfactory completion of the construction and upon the request of Developer, or at its own election, the City shall issue a certificate of completion ("Certificate of Completion"). Such Certificate of Completion shall be, and shall so state, conclusive determination of satisfactory completion of the construction. If City declines to furnish a Certificate of Completion after written request from Developer, the Executive Director shall, within thirty (30) days after receipt of the request, provide Developer with a written statement of the reasons therefor. The statement shall contain a description of the action(s) Developer must take to obtain a Certificate of Completion. If the reason therefor is that the Developer has not completed a minor portion of the Construction, City may, in its sole and absolute discretion, issue the Certificate of Completion upon the posting with City of a bond or other form of security acceptable to the Executive Director in the amount of the fair value of the uncompleted work. A Certificate of Completion is not evidence of compliance with or satisfaction of the Loan Documents or any obligation of Developer to any other party whatsoever, including any holder of a mortgage or deed of trust. A Certificate of Completion is not "notice of completion" referred to in Section 3093 of the California Civil Code. A Certificate of Occupancy issued by the City will also meet the same purpose and requirement as the Certificate of Completion. Section 18. INDEMNIFICATION 18.1. Nonliability of City. Developer acknowledges and agrees that: 42 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 56 3/7/2023 EXHIBIT 3 (a) The relationship between Developer and City is and shall remain solely that of borrower and lender, City neither undertakes nor assumes any responsibility to review, inspect, supervise, approve (other than for aesthetics) or inform Developer of any matter in connection with the construction, including matters relating to: (i) the performance of the construction work, (ii) architects, contractors, subcontractors and materialmen, or the workmanship of or materials used by any of them, or (iii) the progress of the construction; and Developer shall rely entirely on its own judgment with respect to such matters and acknowledges that any review, inspection, supervision, approval or information supplied to Developer by City in connection with such matters is solely for the protection of City and that neither Developer nor any third party is entitled to rely on it; (b) Notwithstanding any other provision of any Loan Document: (i) the City is not a partner, joint venture, alter -ego, manager, controlling person or other business associate or participant of any kind of Developer and City does not intend to ever assume any such status; (11) City's activities in connection with the City/HOME-ARP Loan shall not be "outside the scope of the activities of a lender of money" within the meaning of California Civil Code Section 3434, as modified or recodified from time to time, and City does not intend to ever assume any responsibility to any person for the quality or safety of the Property; and, (iii) City shall not be deemed responsible for or a participant in any acts, omissions or decisions of Developer; (c) City shall not be directly or indirectly liable or responsible for any loss or injury of any kind to any person or property resulting from any construction on, or occupancy or use of, the Property, whether arising from: (i) any defect in any building, grading, landscaping or other onsite or offsite improvement; (ii) any act or omission of Developer or any of Developer's agents, employees, independent contractors, licensees or invitees; or, (iii) any accident on the Property or any fire or other casualty or hazard thereon; and (d) By accepting or approving anything required to be performed or given to City under the Loan Documents, including any certificate, financial statement, survey, appraisal or insurance policy, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 18.2. Indemnity. Developer shall defend (by counsel reasonably satisfactory to City), indemnify and save and hold harmless the Indemnitees from and against all claims, damages, demands, actions, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising from or relating to: (i) a breach of this Agreement by Developer; (ii) the making of the City/HOME-ARP Loan; (iii) a claim, demand or cause of action that any person has or asserts against Developer; (iv) any act or omission of Developer, any contractor, subcontractor or material supplier, engineer, architect or other person with respect to the Property; or, (v) the ownership, occupancy or use of the Property. Notwithstanding the foregoing, Developer shall not be obligated to indemnify City with respect to the consequences of any act of illegal conduct, gross negligence or willful misconduct of City. Developer's obligations under this Section shall survive the cancellation of the City/HOME-ARP Loan Note, release and 43 W1SEPlace Permanent Supportive Housing l,lt�/vl.,6und1 an HgreemenL 13 — 57 3/7/2023 EXHIBIT 3 reconveyance of the City/HOME ARP Deed of Trust, issuance of the Certificate of Completion, and termination of this Agreement. (a) Notwithstanding the foregoing, neither Developer, nor any of its partners, shall be personally liable for any indemnification obligation hereunder which would result in the repayment of principal and/or interest under the City/HOME-ARP Loan. (b) To the fullest extent permitted by law, the Developer agrees to indemnify, hold harmless and defend the City and its elected officials, officers, governing members, employees, attorneys and agents (collectively, the "Indemnified Parties"), from and against any and all losses, damages, claims, actions, liabilities, reasonable costs and expenses of any and every conceivable nature, kind or character (including, without limitation, reasonable attorneys' fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject to under any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to: (i) the Loan Documents or the execution or amendment thereof or in connection with the transactions contemplated thereby; (ii) Developer's ownership or operation of the Project or any act or omission of the Developer or any of its agents, contractors, servants, employees or licensees in connection with the City/HOME-ARP Loan or the Project, the operation of the Project, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation, operation or rehabilitation of, the Project or any part thereof; (iii) any lien or charge upon payments by the Developer to the City, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on the City in respect of any portion of the Project; (iv) any violation of any applicable environmental law, rule or regulation with respect to, or the release of any toxic substance from the Project or any part thereof; (v) any untrue or misleading statement of a material fact by the Developer, which Developer knew or should have known to be untrue or misleading, that is contained in any Loan Document or any of the documents or instruments relating to said Loan Documents that the City relied upon in making the City/HOME-ARP Loan, except to the extent such damages are caused by the active negligence or willful misconduct of such Indemnified Party. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Developer, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment and payment for counsel selected by the Indemnified Party, and shall assume the payment of all reasonable expenses related thereto, 44 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 58 3/7/2023 EXHIBIT 3 with full power to litigate, compromise or settle the same; provided that the Indemnified Party shall have the right to review and approve or disapprove in its reasonable discretion any such compromise or settlement; and, (vi) Notwithstanding anything in this Section 18.2 to the contrary, if judgment is entered against Developer and City by a court of competent jurisdiction because of the concurrent active negligence of City or Indemnified Parties, Developer and City agree that liability will be apportioned as determined by the court. Neither Party shall request a jury apportionment. 18.3. Reimbursement of City. Developer shall reimburse City immediately upon written demand for all costs reasonably incurred by City (including the reasonable fees and expenses of attorneys, accountants, appraisers and other consultants, whether the same are independent contractors or employees of City) in connection with the enforcement of the Loan Documents and all related matters including all claims, demands, causes of action, liabilities, losses, commissions and other costs against which City is indemnified under the Loan Documents. Such reimbursement obligations shall bear interest from the date occurring twenty (20) days after City gives written demand to Developer at the rate of Interest defined in the Note and shall be secured by the City/HOME-ARP Loan Deed of Trust. Such reimbursement obligations shall survive the cancellation of the City/HOME-ARP Loan Note, release and reconveyance of the City/HOME-ARP Loan Deed of Trust, issuance of a Certificate of Completion, and termination of this Agreement. Subsequent to the making and disbursement of the City/HOME-ARP Loan, the Developer shall pay for any subsequent revisions, transfers, extensions, renewals, modifications, refinancing or "workouts," and providing estoppels or subordinations of the City/HOME- ARP Loan (collectively, "Changes"), and in the exercise of any of City's rights or remedies under this Agreement. The City will receive from Developer in connection with any request by Developer for a Change, a nonrefundable fee in the amount of Five Hundred Dollars ($500) and Developer shall reimburse City for all of the City's reasonable out-of-pocket expenses (including reasonable attorney's fees) incurred in the administration and review of such Changes, to the extent such expenses exceed Five Hundred Dollars ($500). Section 19. INSURANCE, CASUALTY AND CONDEMNATION 19.1. Prior to undertaking performance of work under this Agreement, Developer shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Minimum Scope and Limit of Insurance — Coverage shall be at least as broad as: 1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per 45 WlSSEPlace Permanent Supportive Housing Itl oan Agreement Rounc13 — 59 3/7/2023 EXHIBIT 3 occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: Insurance Services Office Form Number CA 00 01 covering any auto (Code 1), or if Developer has no owned autos, hired (Code 8), and non -owned autos (Code 9), with a limit no less than $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, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. 4. Professional Liability (Errors & Omissions): Insurance appropriate to the Developer's profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. 5. Broader Coverage: If Developer maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by Developer. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. b. Other Insurance Provisions — The insurance policies are to contain, or be endorsed to contain, the following provisions: 1. Additional Insured Status: The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Developer including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Developer's insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 forms if later revisions used). 2. Primary Coverage: For any claims related to this Agreement, Developer's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of Developer's insurance and shall not contribute with it. 46 WlSSEPlace Permanent Supportive Housing Itl oan Agreement Rounc13 — 60 3/7/2023 EXHIBIT 3 3. Notice of Cancellation: Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City. 4. Waiver of Subrogation: Developer hereby grants to City a waiver of any right to subrogation which any insurer of said Developer may acquire against the City by virtue of the payment of any loss under such insurance. Developer agrees to obtain any endorsement that may be necessary to affect this waiverof subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. 5. Self -Insured Retentions: Self -insured retentions must be declared to and approved by the City. The City may require Developer to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. 6. Acceptability of Insurers: Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City. 7. Claims Made Policies: If any of the required policies provide coverage on a claims -made basis: i. The Retroactive Date must be shown and must be before the date of the Agreement or the beginning of work. ii. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the work. iii. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a Retroactive Date prior to the contract effective date, the Developer must purchase "extended reporting" coverage for a minimum of five (5) years after completion of work. 8. Verification of Coverage: Developer shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage requiredby this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing allpolicy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Developer's obligation to provide them. The City reserves the right to require 47 WlSSEPlace Permanent Supportive Housing Itl oan Agreement Rounc13 — 61 3/7/2023 EXHIBIT 3 complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. 9. Subcontractors: Developer shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Developer shall ensure that City is an additional insured on insurance required from subcontractors. 10. Special Risks or Circumstances: City reserves the right to modify these requirements, including limits, based on the nature of therisk, prior experience, insurer, coverage, or other special circumstances. 19.2. Claims and Proceedings. Developer shall give City immediate notice of any material casualty to any portion of the Property, whether or not covered by insurance, and of the initiation or threatened initiation of any proceeding for the condemnation or other taking for public or quasi -public use of any portion of the Property (collectively, "Condemnation"), and shall provide City with copies of all documents which pertain to any such casualty or Condemnation. Developer shall take all action reasonably required by City in connection therewith to protect the interests of Developer and/or City, and City shall be entitled (without regard to the adequacy of its security) to participate in any action, claim, adjustment or proceeding and to be represented therein by counsel of its choice. Developer shall not settle, adjust, or compromise any claim, action, adjustment or proceeding without prior written approval, which approval shall not be unreasonably withheld or delayed. 19.3. Delivery of Proceeds to City. If the proceeds from any casualty insurance is in excess of $500,000, Developer shall, subject to any superior rights of the Senior Lender, deliver such proceeds to the City immediately upon receipt. 19.4. Application of Casualty Insurance Proceeds. Any proceeds collected (the "Proceeds") under any casualty insurance policy described in this Agreement shall be disbursed to Developer as provided below, but only upon fulfillment of each of the following conditions (the "Restoration Conditions") within ninety (90) days (unless extended by mutual agreement of Developer and City) following the occurrence of the damage for which the Proceeds are collected, or the date the City receives the Proceeds, whichever is later: (a) Developer shall demonstrate to City's reasonable satisfaction that the Proceeds (together with amounts deposited by Developer pursuant to subparagraph (b)) will be adequate to repair the Improvements and to restore the fair market value of the Property, within two years (or such longer time period reasonably determined by City), to at least the value it had immediately prior to sustaining the damage. Such demonstration shall include delivery to City of: (i) plans and specifications reasonably satisfactory to City; and, (ii) a construction contract in form and content, and with a contractor, reasonably satisfactory to City. (b) To the extent that the Proceeds are insufficient to accomplish the restoration required above, Developer shall deliver to City (the "Shortfall Funds") in the 48 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 62 3/7/2023 EXHIBIT 3 amount of such shortfall, which funds shall be assigned to City as security for Developer's obligation hereunder and held and disbursed in the same manner as the Proceeds. (c) Developer shall execute such documents as City reasonably requires to evidence and secure Developer's obligation to use all amounts disbursed for the diligent restoration of the Property. No Event of Default shall remain uncured. 19.5. Method of Disbursement and Undisbursed Funds. Any Proceeds and Shortfall Funds to be disbursed to Developer shall be held by City and disbursed in accordance with then customary disbursement procedures and related provisions. Any amounts remaining undisbursed following completion of such restoration shall be returned to Developer up to the amount of any Shortfall Funds deposited by Developer, and any other amounts remaining shall either be paid to Developer or applied by City against any obligations to City that are secured by a lien on the Property, as they elect in their sole and absolute discretion. 19.6. Failure to Satisfy Conditions. In the event that Developer fails to fulfill the Restoration Conditions within ninety (90) days, unless extended, following the date on which the damage occurs, the Proceeds shall be applied by City against any obligations to City that are secured by a lien on the Property, and the selection of which such obligations to apply the Proceeds against shall be made by City in their sole and absolute discretion, subject to the rights of the Senior Lender. 19.7. Condemnation; Treatment of Compensation. Subject to any superior rights of Senior Lender, Developer hereby assigns to the City, as security for all obligations to City secured by a lien on the Property, all amounts payable to Developer in connection with any Condemnation, and any proceeds of any related settlement (collectively, "Compensation"). Subject to any superior rights of Senior Lender, Developer shall deliver such remaining Compensation to City immediately upon receipt. If the taking results in a loss of the Property to an extent that, in the reasonable opinion of City, renders or is likely to render the Property not economically viable or if, in City's reasonable judgment Developer's security is otherwise impaired, City may apply the Compensation received due to judgment or settlement in connection with any condemnation or other taking to reduce the unpaid obligations secured in such order as City may determine, and without any adjustment in the amount or due dates of payments due under the City/HOME-ARP Loan Note. If so applied, any award in excess of the unpaid balance of the City/HOME- ARP Loan Note and other sums due to City shall be paid to Developer or Developer's assignee. City shall have no obligation to take any action in connection with any actual or threatened condemnation or other proceeding. (a) Notwithstanding the foregoing, as long as the Developer is not in default under the Loan Documents, any condemnation proceeds may be used by the Developer for repair and/or restoration of the Project. 49 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 63 3/7/2023 EXHIBIT 3 Section 20. DEFAULTS AND REMEDIES 20.1. Events of Default. The occurrence of any of the following, whatever the reason therefore, shall constitute an Event of Default by Developer: (a) Developer fails to make any payment of principal or interest under the City/HOME-ARP Loan Note when due, and such failure is not cured within thirty (30) Business Days after Developer's receipt of written notice that such payment was not received when due; (b) Developer fails to perform any other obligation for the payment of money under any Loan Document, and such failure is not cured within thirty (30) Business Days after Developer's receipt of written notice that such obligation was not performed when due; (c) Developer fails to perform any obligation (other than the obligations described in subparagraphs (a) and (b) above) under any Loan Document, and such failure is not cured within thirty (30) days after Developer's receipt of written notice that such obligation was not performed; provided that, if cure cannot reasonably be effected within such thirty (30)-day period, such failure shall not be an Event of Default so long as Developer (in any event, within ten (10) days after receipt of such notice) commences to cure, and thereafter diligently (in any event within one hundred and twenty (120) days after receipt of such notice) prosecutes such cure to completion; (d) Any representation or warranty in any Loan Document proves to have been incorrect in any material respect when made; (e) Reserved; (f) Subject to the terms of Section 21.17, work on the construction ceases for ninety (90) consecutive days for any reason; (g) Developer is enjoined or otherwise prohibited by any Governmental Authority from constructing and/or occupying the improvements and such injunction or prohibition continues unstayed for ninety (90) days or more for any reason; (h) Developer is dissolved, liquidated or terminated, or all or substantially all of the assets of Developer are sold or otherwise transferred without the Executive Director's prior written consent; (i) Developer is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Developer applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Developer and the appointment continues undischarged or unstayed for ninety (90) days; or Developer institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, 50 WlSSEPlace Permanent Supportive Housing Itl an Agreement Pounc13 — 64 3/7/2023 EXHIBIT 3 readjustment of debt, dissolution, custodianship, conservatorship, liquidation, rehabilitation or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Developer and continues undismissed or unstayed for ninety (90) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Developer and is not released, vacated or fully bonded within ninety (90) days after its issue or levy; 0) Any of the Senior Loan documents is amended, supplemented or otherwise modified without City's prior written consent (which consent shall not be unreasonably withheld or delayed), to the extent the City's consent is required pursuant to any subordination agreement between the City and the Senior Lender; (k) Senior Loan Document Breach. Any default or breach of Developer that continues uncured after the expiration of any applicable cure period under any other loan document including, but not limited to, the Senior Loan Documents (including but not limited to the Senior Loan Deed of Trust); (1) Voluntarypension. The voluntary suspension of Developer's business or the dissolution or termination of the Partnership (if any) constituting Developer; (m) Unauthorized Transfer. Developer's sale or other transfer of the Property or the Project in violation of the terms in this Agreement; (n) Fraud or Material Misstatement or Omissions. Any fraudulent act or intentional material omission of Developer's, or intentional material misrepresentation of Developer's, pertaining to or made in connection with the City/HOME-ARP Loan, Loan Documents or the Project; or, (o) Project Monies. Developer's intentional misapplication or embezzlement of Project monies. 20.2. Remedies Upon Default. Upon the occurrence and during the continuance of any Event of Default, City may, at its option and in its sole and absolute discretion, do any or all of the following: (a) By written notice to Developer, declare the principal of all amounts owing under the Loan Documents, together with all accrued interest and other amounts owing in connection therewith, to be immediately due and payable, regardless of any other specified due date; provided that any Event of Default described in Section 20.1 shall automatically, without notice or other action on City's part, cause all such amounts to be immediately due and payable; (b) In its own right or by a court -appointed receiver, take possession of the Property, enter into contracts for and otherwise proceed with the completion of the construction by expenditure of its own funds; (c) Exercise any of its rights under the Loan Documents and any rights 51 WlSSEPlace Permanent Supportive Housing Itan Agreement Round13 — 65 3/7/2023 EXHIBIT 3 provided by law, including, without limitation, the right to seek specific performance and the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as City elects in its sole and absolute discretion; (d) Suspend or terminate the award of City/HOME-ARP funds if Developer fails to comply with any term of that award; and, (e) Cure any monetary Event of Default by Developer under a loan other than the City/HOME-ARP Loan. The Developer agrees to reimburse the City for any funds advanced by the City to cure any such monetary default by Developer upon demand therefor, together with interest thereon at the rate of twelve percent (12%) per annum (which rate shall in no event exceed the maximum rate permitted by law and if it does, said rate shall be reduced to the maximum rate then permitted by law), from the date of expenditure until the date of reimbursement. 20.3. Cumulative Remedies: No Waiver. City's rights and remedies under the Loan Documents are cumulative and in addition to all rights and remedies provided by law. The exercise by City of any right or remedy shall not constitute a cure or waiver of any default, nor invalidate any notice of default or any act done pursuant to any such notice, nor prejudice the City in the exercise of any other right or remedy. No waiver of any default shall be implied from any omission by City to take action on account of such default if such default persists or is repeated. No waiver of any default shall affect any default other than the default expressly waived, and any such waiver shall be operative only for the time and to the extent stated. No waiver of any provision of any Loan Document shall be construed as a waiver of any subsequent breach of the same provision. City's consent to or approval of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act. The City's acceptance of the late performance of any obligation shall not constitute a waiver by City of the right to require prompt performance of all further obligations; City's acceptance of any performance following the sending or filing of any notice of default shall not constitute a waiver of either party's right to proceed with the exercise of its remedies for any unfulfilled obligations; and City's acceptance of any partial performance shall not constitute a waiver by City of any rights. 20.4. Nonrecourse Liability. Neither Developer, nor any other party, including any partner of Developer, shall have any personal liability under this Agreement, or the attached City/HOME-ARP Loan Note and City/HOME-ARP Loan Deed of Trust, and any judgment, decree or order for the payment of money obtained in any action to enforce the obligation of Developer to repay the City/HOME-ARP Loan or any other amount evidenced or secured by such documents shall be enforceable against Developer only to the extent of Developer's interest in the Property. 20.5. Limited Partner Cure. The City shall provide the Developer's Limited Partner with an opportunity to cure any default. Any cure made or tendered by Limited Partner shall be accepted as if made by Developer. 52 WlSSEPlace Permanent Supportive Housing Itl oan Agreement Rounc13 — 66 3/7/2023 EXHIBIT 3 Section 21. MISCELLANEOUS 21.1. Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Developer, or any other claim by developer against City, in connection with the City/HOME-ARP Loan or otherwise, Developer hereby waives any right it might otherwise have: (a) to offset any such obligation, liability or claim against Developer's obligations under the Loan Documents; or, (b) to claim that the existence of any such outstanding obligation, liability or claim excuses the nonperformance by Developer of any of its obligations under the Loan Documents. 21.2. Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: If to Developer: During Construction: North Broadway Housing Partners LP c/o 17701 Cowan Ave., Suite 200 Irvine, CA 92614 Attention: Chief Executive Officer Following construction: North Broadway Housing Partners LP c/o Jamboree Housing Corporation 17701 Cowan Ave., Suite 200 Irvine, CA 92614 Attention: Asset Management With a copy to: Rutan & Tucker, LLP 18575 Jamboree Road, 9th Floor Irvine, CA 92612 Attention: Patrick D. McCalla With a copy to: Limited Partner Bank of America, N.A. 100 Federal Street MA5-100-04-11 Boston, MA 02110 Attention: Asset Management Facsimile: 617-346-2257 and Banc of America CDC Special Holding Company, Inc. 53 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 67 3/7/2023 EXHIBIT 3 100 Federal Street MA5-100-04-11 Boston, MA 02110 Attention: Asset Management Facsimile: 617-346-2257 and Buchalter, a Professional Corporation 1000 Wilshire Blvd., Suite 1500 Los Angeles, CA 90017-2457 Attn: Michael A. Williamson, Esq. If to City: City of Santa Ana Executive Director (CDA) 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 With a copy to: City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non -receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. 21.3. Survival of Representations and Warranties. All representations and warranties in the Loan Documents shall survive the making of the City/HOME-ARP Loan described herein and have been or will be relied on by City notwithstanding any investigation made by either party. 21.4. No Third Parties Benefited. This Agreement is made for the purpose of setting forth rights and obligations of Developer and the City, and no other person shall have any rights hereunder or by reason hereof. 21.5. Reserved. 21.6. Prior Agreements; Amendments; Consents. This Agreement (together with the other Loan Documents) contains the entire agreement between the City and Developer with respect to the City/HOME-ARP Loan and the Property, and all prior negotiations, understandings and agreements are superseded by this Agreement and such other Loan Documents. No modification of any Loan Document (including waivers of rights and conditions) shall be effective unless in writing and signed by the party against whom enforcement of such modification is sought, and then only in the specific instance 54 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 68 3/7/2023 EXHIBIT 3 and for the specific purpose given. Notwithstanding the foregoing, that certain Density Bonus Agreement approved by City and recorded against the Property on June 29, 2022, as Instrument No. 2022000231667 shall remain an encumbrance on the Property subject to the provisions of the City Affordability Restrictions on Transfer of Property. 21.7. Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of California and Federal law, whichever is more stringent. Developer irrevocably and unconditionally submits to the jurisdiction of the Superior Court of the State of California for the County of Orange or the United States District Court of the Central District of California, as City may reasonably deem appropriate, in connection with any legal action or proceeding arising out of or relating to this Agreement or the Loan Documents. Assuming proper service of process, Developer also waives any objection regarding personal or in rem jurisdiction or venue. 21.8. Severability of Provisions. No provision of any Loan Document that is held to be unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of the Loan Documents are hereby declared to be severable. 21.9. Headings. Article and section headings are included in the Loan Documents for convenience of reference only and shall not be used in construing the Loan Documents. 21.10. Conflicts. In the event of any conflict between the provisions of this Agreement and those of any other Loan Document, this Agreement, unless otherwise expressly provided, shall prevail; provided however that, with respect to any matter addressed in both such documents, the fact that one document provides for greater, lesser or different rights or obligations than the other shall not be deemed a conflict unless the applicable provisions are inconsistent and could not be simultaneously enforced or performed. 21.11. Time of the Essence. Time is of the essence under this Agreement and in the performance of every term, covenant, and obligation contained herein. 21.12. Conflict of Interest. No member, official or employee of the City shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement that is prohibited by law. 21.13. Warranty Against Payment of Consideration. Developer warrants that it has not paid or given, and will not pay or give, any third person any money or other consideration for obtaining this Agreement. 21.14. Reserved. 21.15. Plans and Data. As additional collateral for the City/HOME-ARP Loan, Developer hereby grants to the City a security interest in all plans and data concerning the Property, subject to the rights of any Senior Lender. Such right of City shall be subject to any right of the preparer of the plans to their use. 55 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 69 3/7/2023 EXHIBIT 3 21.16. Authority to Enter Agreement. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify the City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory for Developer or is withdrawn. 21.17. Force Majeure. Notwithstanding specific provisions of this Agreement, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the City and the Developer. 21.18. Approvals and Actions. (a) The Executive Director shall have the authority, on behalf of the City to make approvals, issue interpretations, waive provisions, grant extensions of time, approve amendments to this Agreement and changes to the attached exhibits prior to their execution and execute documents necessary to implement this Agreement, as may be required by the Tax Credit Investor or any of Lender, so long as such actions: (1) were authorized by the City Council's approval of the Loan Documents; (2) comply with the HOME -ARP Program; and (3) do not reduce the length of affordability of the Restricted Units or increase the risk of liability or the costs to be incurred by the City hereunder. The Executive Director reserves the right, in his or her sole and absolute discretion, to submit any requested modification, interpretation, amendment or waiver to the City Council if the Executive Director reasonably determines or reasonably believes that such action could increase the risk, liability or costs to City, or reduce the length of affordability of the Project, or is otherwise required by law. (b) Whenever this Agreement or any other Loan Document references a request that requires the approval or consent of a party, then each party shall act reasonably and in good faith in making any such request and responding to the request, but in no event shall either party be required to agree to terms that are not specified in this Agreement or waive any rights or privileges set forth herein. Whenever this Agreement references a party having "sole and absolute" discretion, then that party may exercise its discretion for any reason or no reason at all as that party may determine in its exclusive and independent judgment. 56 WlSSEPlace Permanent Supportive Housing Itl an Agreement Rounc13 — 70 3/7/2023 EXHIBIT 3 {signatures on following page) 57 WlSSEPlace Permanent Supportive Housing Itl oan Agreement Rounc13 — 71 3/7/2023 EXHIBIT 3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date set forth at the beginning of this Agreement. DEVELOPER NORTH BROADWAY HOUSING PARTNERS LP, a California limited partnership By: JHC-North Broadway LLC, a California limited liability company, its managing general partner By: Jamboree Housing Corporation, a California non-profit public benefit corporation, its managing member By: Name: Title: 58 WlSSEPlace Permanent Supportive Housing Itoan Agreement Round13 — 72 3/7/2023 EXHIBIT 3 ATTEST: CITY OF SANTA ANA Norma Orozco Kristine Ridge Clerk of the Council City Manager Dated: APPROVED AS TO FORM: SONIA R. CARVALHO, City Attorney By: ad-k� Special Counselt the City Best, Best & Krieger Dated: 2/23/23 RECOMMENDED FOR APPROVAL: Michael L. Garcia Executive Director Community Development Agency Dated: 59 WISEPlace Permanent Supportive Housing sty ounce an greement 13 - 73 3/7/2023 EXHIBIT 3 EXHIBITS A. Legal Description B. Scope of Work- C. Project Budget D. City/HOME-ARP Loan Deed of Trust E. City/HOME-ARP Loan Note F. Affordability Restrictions on Transfer of Property G. Additional Terms and Conditions for Federal HOME -American Rescue Plan (HOME -ARP) and HOME Investment Partnership (HOME) Funds 60 WlSSEPlace Pennanent Supportive Housing Itl an Agreement Rounc13 — 74 3/7/2023 EXHIBIT 3 Exhibit A: Legal Description City Council 13 — 75 3/7/2023 EXHIBIT 3 All that certain real property situated in the County of Orange, State of California, described as follows: COMMENCING AT THE CENTERLINE INTERSECTION OF 15TH STREET AND SYCAMORE STREET AS SHOWN ON THE RECORD OF SURVEY NO 85-1067, RECORDED IN BOOK 111, PAGE 38, OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, SAID CENTERLINE OF SYCAMORE STREET BEING DESCRIBED IN THAT CERTAIN FINAL JUDGMENT, SUPERIOR COURT CASE NO. 23280, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 8, 1929 IN BOOK 227, PAGE 401 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, CALIFORNIA; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET SOUTH 000 14' 46" WEST, 90 FEET AND SOUTH 00° 04' 48" EAST, 213.42 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID CENTERLINE NORTH 890 58' 21" WEST, 312.17 FEET TO THE CENTERLINE OF BROADWAY, THENCE NORTHERLY ALONG SAID CENTERLINE OF BROADWAY NORTH 000 16' 10" EAST, 75.00 FEET TO THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN A DEED TO T. J. MULLINIX RECORDED OCTOBER 29, 1897 IN BOOK 33, PAGE 197 OF DEEDS OF SAID ORANGE COUNTY; THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF SAID DEED TO T. J. MULLINIX SOUTH 890 58' 10" EAST, 181.72 FEET TO THE WESTERLY LINE OF THE EAST 130.00 FEET OF THAT PORTION OF THE LAND ALLOTTED TO JACOB ROSS, AS DESCRIBED IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12,1869 IN BOOK `B", PAGE 410 OF JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES COUNTY, CALIFORNIA; THENCE NORTHERLY, ALONG SAID WESTERLY LINE NORTH 00° 04' 48" WEST, 77.08 FEET; THENCE SOUTH 89°58'10" EAST, 130.00 FEET TO THE ABOVE MENTIONED CENTERLINE OF SYCAMORE STREET; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET, SOUTH 00°04'48" EAST, 152.06 FEET TO THE POINT OF BEGINNING. SAID LAND IS SHOWN AS LOT 1 ON VOLUNTARY LOT MERGER NO. 2022-06 RECORDED JANUARY 26, 2023 AS INSTRUMENT NO. 2023000018589, OFFICIAL RECORDS OF SAID COUNTY. Assessor's Parcel Number: 398-523-04 City Council 13 — 76 3/7/2023 EXHIBIT 3 Exhibit B: Scope of Work City Council 13 — 77 3/7/2023 EXHIBIT 3 WISEPIace PSH Project Description Overview North Broadway Housing Partners LP The proposed project, WISEPIace PSH (the "Project") will be located at 1411 N. Broadway, Santa Ana, CA 92706 (the "Property"). The 0.6 acre site includes one (1) parcel. The current APN associated with the Project is APN 398-523-04. The Project will be a 48-unit community, with 47 permanent supportive housing units, of which 47 are for individuals experiencing homelessness and 14 are for individuals living with a mental illness. The Project will be constructed on the existing WISEPIace site. The East-West portion of the development is an adaptive reuse of the existing WISEPIace building, with one story facing Broadway. The North -South portion of the existing building facing Sycamore will be demolished. The site has a wide array of amenities close by including a grocery store, health clinic, bus stop, park, and a public library. The site is in the Midtown Specific Plan Area, in a neighborhood with a variety of uses. The area around the site is mostly commercial with new live/work townhomes being constructed across Broadway. Ownership and Conveyance of Land The development team includes Jamboree Housing Corporation ("Jamboree") and WISEPIace. The Developer will be Jamboree and WISEPIace will be the service provider. Jamboree and WISEPIace have structured the acquisition as a long-term ground lease, with a de minimis $1 per year annual ground lease payment for a term of 65 years. WISEPIace will be the ground lessor. North Broadway Housing Partners LP, which includes WISEPIace and Jamboree, will be the ground lessee. Design Description The Project is a 48-unit community, with 47 permanent supportive housing units, of which 47 are for individuals experiencing homelessness and one (1) unit as a manager's unit. Of the 47 permanent supportive housing units, fourteen (14) will be set aside for Mental Health Services Act ("MHSA") tenants for individuals living with a mental illness. The Project is an adaptive reuse of the existing one-story structure and the new construction of a four-story Type V over Type I podium. A four-story new construction building will include 42 units and communal amenity spaces and an elevator. The existing one story structure will include six (6) units. The PSH Project site will include approximately 20 parking stalls in a gated podium parking garage. City Council 13 — 78 3/7/2023 EXHIBIT 3 WISEPIace PSH North Broadway Housing Partners LP Residents will have access to a landscaped courtyard property with a seating area and a community garden with raised bed planters. The Project was fully entitled on June 21, 2022. Floor Plans and Unit Amenities The project consists of 47 studios and one (1) two -bedroom manager's unit. The studios range in size from 353 square feet to 423 square feet. Unit amenities include ENERGY STAR appliances, including a stove/oven and refrigerator, energy efficient lighting, bathroom fixtures and finishes, floor and window coverings, central heating/air conditioning, storage closets, ceiling fans, and dishwashers. Accessibility The Project will comply with accessibility requirements. The Project will provide fifteen percent (15%) of all units as accessible to people with mobility impairments, and an additional ten percent (10%) of all units as accessible to people with vision and hearing impairments. Community Amenities Community amenities will include a community center with computer lab, onsite property management, a community kitchen, a community garden, laundry facilities, onsite supportive services, and onsite counselors and counseling offices. Demolition and Remediation The East-West portion of the existing building facing Broadway is historic and a majority of the one-story structure will remain. The North -South portion of the existing building facing Sycamore was significantly altered and is not historic. It will be demolished for the new construction of the four-story structure. It will require lead -based paint and asbestos remediation prior to demolition. Services WISEPIace will be the service provider on site to provide a full range of services, including: • Adult Education, Health, Skill Building Classes — classes may include, but are not limited to: basic life skills, cleaning, computer literacy, resume building, nutrition, health, fitness, and cooking, especially with ingredients from the onsite community garden. • Service Coordinator — responsible for implementing and coordinating programs that develop the resident's capacity to engage in life skills development, coping mechanisms that nurture their wellbeing, set personal goals and maintain housing stability. The Resident Services Coordiator will also provide linkage and referrals to residents to increase housing stability. City Council 13 — 79 3/7/2023 EXHIBIT 3 WISEPIace PSH North Broadway Housing Partners LP In addition to the services provided by WISEPIace, the Orange County Health Care Agency (OCHCA) will provide individualized services for the fourteen (14) Mental Health Services Act residents. Population Served 47 of the units will be restricted to households with income levels at or below the 30 percent AMI level, with one two -bedroom manager's unit. 25 of the units are restricted at 30 percent AMI and will have project -based vouchers, administered by the City of Santa Ana Housing Authority. 14 of the units will be Mental Health Services Act (MHSA) units, which provides funding for housing for persons with serious mental illness who are chronically homeless, homeless, or at -risk of being homeless. Development Team The Owner, North Broadway Housing Partners LP, is comprised of Jamboree Housing Corporation and WISEPIace. The two non -profits shared a common vision for the development of WISEPIace Permanent Supportive Housing and joined to combine expertise in development and supportive services. Jamboree is the lead developer, while WISEPIace is the land owner, ground lessor, and service provider. Jamboree will own a 0.0065% interest and WISEPlace will own a 0.0035% interest. Please see organizational chart on the following page. City Council 13 — 80 3/7/2023 EXHIBIT 3 Organizational Chart • The applicant is North Broadway Housing Partners LP. • JHC-North Broadway LLC, a non-profit subsidiary of Jamboree Housing Corporation and WISEPIace Corporation, is and will remain the Managing General Partner with a 0.01 % • Jamboree Housing Corporation retains 65% ownership of JHC North Broadway LLC • WISEPIace Corporation retains 35% ownership of JHC-North Broadway LLC • The tax credit investor, Bank of America, will be admitted to the partnership at the close of the construction financing. The Invested Limited Partner will have 99.99% ownership in the Partnership. City Council 13 — 81 3/7/2023 EXHIBIT 3 Exhibit C lee Project Budget City Council 13 — 82 3/7/2023 EXHIBIT 3 *Jamboree WISEPIace PSH 9% - TCAC Application City of Santa Ana 02/08/23 Project Data Operating Economic Assumptions 1411 N. Broadway Vacancy Rate 10.00% Total Units 48 Income Inflator 2.00% Expense Inflator 3.00% Land Area 0.6 Acres Tax Inflator 2.00% Units Per Acre 80.00 QCT/DDA YES Construction Loans Prevailing Wage YES Construction Period 22 Months Loan Amount 15,584,322 Loan Fees 1.00% 4% or 9% Financing 9.00% Loan Rate 7.25% Federal Tax Credit Price $0.95 Permanent Loans Fee Interest Amortizaton Amount Permanent Loans 0.75% 6.DO% 420 Overhang Loans 1.000/0 4.75% 180 .UNIT MIX MONTHLY ANNUAL AVERAGE BEDROOMS SF UNITS MGR: PERCENT AVG UTILITY AVG GROSS RENT/SF GROSS ALLOWANCE NET INCOME PER MONTH 0 650 47 0 98% 286 0 286 161,304 0.44 1 0 0 0 0% 0 74 0 0 2 0 0 1 20% 0 103 0 0 3 0 0 D 0% 0 133 0 0 4 0 0 0 0% 0 163 0 0 TOTAL 47 1 300% 286 161,304 0.44 PERMANENT SOURCES Net Investor Equity (Federal) PERCENT 68% TOTAL 20,089,816 PER UNIT 418,538 AMI 30% NO. UNITS 47 PERCENT 98% Net Investor Equity (State) 0% 0 0 35% 0 0% Permanent Loan 0% 0 0 40% 0 0% Tranche B- Loan 0°% 0 0 45% 0 0% OCHFT 8% 2,480,030 51,667 50% 0 0% City of Santa Ana 14°% 3,986,407 83,050 55% 0 0% City of Santa Ana - COSR 4% 1,269,920 26,457 60% 0 0% County ARPA 5% 1,500,000 31,250 TOTAL 47 98% Land Donation 0% 0 0 Deferred Developer Fee 0% 85,072 1,772 BASIS CALCULATIONS TOTAL SOURCES 1000/a 29,411,245 612,734 Threshold Basis 21,502,403 Land / Acquisition Costs 0% 0 0 Total Hard Costs 18,024,033 375,501 Hard Cost Contingency 8.00% 1,357,247 28,276 Construction Interest 1,441,226 30,026 Loan Fees 266,051 5,543 Soft Costs 5,681,528 118,365 Soft Costs Contingency 10.00% 441,161 9,191 Developer Fee 2,200,000 45,833 TOTAL DEVELOPMENT COSTS 29,411,245 612,734 INCOME Stabilized Cash Flow PER UNIT 1 Gross Potential Rental Income 3,361 161,304 Laundry Income 108 5,184 Subsidy Income 9,463 454,200 Vacancy and Collection (1,009) (48,443) EFFECTIVE GROSS INCOME 11,922 572,245 Management Fee 780 37,440 Real Estate Taxes 139 6,675 Insurance - Property 396 19,000 Operating Expenses 6,836 328,117 Supportive Services 3,104 149,000 Reserves 5D0 24,000 TOTAL OPERATING EXPENSES 11,755 564,232 NET OPERATING INCOME 167 8,014 TOTAL DEBT SERVICE 0 NET CASH FLOW 8,014 Stabilized DSC N/A Eligible Basis 25,934,565 Involuntary Reduction D Voluntary Reduction (6,793,110) Unadjusted Eligible Basis 19,141,455 Qualified Basis DDA/QCT Boost Credit Rate Adjusted Qualified Basis (Acquisition) Credit Rate (Acquisition) Total Available Annual Credits Total Requested Credits Total Available State Credits Total Requested State Credits Public Funds c Construction Cost Per Unit = including General Conditions Profit, GC Bond, PW) Based Vouchers 21,502,403 130% 27,953,123 9.00% 0 9.00% 2,515,781 2,114,929 5,742,436 0 12,276,858 $323,186 25 City Council 13 - 83 3/7/2023 EXHIBIT 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 WISEPIace PSH Sources & Uses City of Santa Ana Jamboree Version: 9%- TCAC Application Revised: 02/08/23 PROJECT SOURCES PERMANENT SOURCES PERCENT BEGINNING TOTAL 20,089,816 BALANCE PER UNIT 4 18, 538 ENDING TOTAL 1 BALANCE PER UNIT 1 1' 1 1 1 1 1 1 1 1 1• 1 1 1 1 Permanent Loan (2) 0% 1 1 1 Accrual Mortgage 1• 1 1 1 1 1 1 1 • :1 030 1 1 1 050 • , 1 11 1 1 Deferred, Developer 1' 1 1 Gand"IPartner , 1 1 d Donation 0% 1 1 1 1 Other 0% 1 Interest on Surplus Funds 1 1 1 1 1 TOTAL SOURCES 1000% 29,411,245 612,734 85,072 1,772 PROJECT USES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Net Investor Equity (Federal) $3,013,472 Net Investor Equity (State) $0 Construction Loan $15,584,322 Tranche B - Loan $0 Permanent Loan (2) $0 Accrual Mortgage $0 Variable Interest Mortgage $0 OCHFT $2,480,030 City of Santa Ana $3,986,407 City of Santa Ana - COSR $0 County ARPA $1,500,000 Deferred Developer Fee and Costs $2,B47,014 General Partner Equity $0 Land Donation $0 Other $0 Interest on Surplus Funds $0 NOI Durin Construction $0 TOTAL NEW OR ELIGIBLE ELIGIBLE NOT USES OF FUNDS LAND / ACQUISITION COST PER UNIT TOTAL ACQUISITION REHAB COST HISTORIC STATE ELIGIBLE Land at $0 Per Acre or $0.00 Per SF 0 0 0 0 0 0 0 Existing Structure 0 0 0 0 0 0 0 Other Ac uisition Costs 0 0 0 0 0 0 0 TOTAL LAND / ACQUISITION COST 6 0 0 0 0 0 0 HARD COSTS Hard Cost Residential 18,024,033 323, 166 15,512,913 0 14,882,093 0 0 630,820 Site Improvements 0 0 0 0 0 0 General Conditions, Profit & Overhead 14.00% 45,246 2,171,808 0 2,083,493 0 0 88,315 GC Bond / Insurance / Letter of Credit 2.00% 7,069 339,312 0 339,312 0 0 0 Hard Cost Contin en 8.00% 28 276 1,357,217 0 1 357 247 0 0 0 TOTAL HARD COSTS 403,777 19,381,279 0 18,662,145 0 0 719,135 FINANCING COSTS Construction Interest (7.25%) at Perm. Rate + 125bp 725% 30,011 1,440,508 0 530,658 0 0 909,850 Bridge Interest at 101 % 15 718 0 0 0 0 7IS Construction Loan Fees 5,543 266,044 0 266,044 0 0 0 Permanent Loan Fees 0 0 0 0 0 0 0 Bridge Loan Fees 0 7 0 7 0 0 0 4% Related Costs Cost of Issuance 0 0 0 0 0 0 0 TOTAL FINANCING COSTS 35,568 1,707,277 0 796,709 0 0 910,567 SOFTCOSTS Accounting & Audit 833 40,000 0 40,000 0 0 0 Appraisal / Market Study 729 35,000 0 35,000 0 0 0 Architecture (Architect, Landscape Architect) 14,448 693,500 0 693,500 0 0 0 Civil Engineering 3,295 158,140 0 158,140 0 0 0 Construction Manager 4,342 208,400 0 208,400 0 0 0 Consultants ( CM, Geo, LEED, Utilities, exc.) 11,169 550,520 0 550,520 0 0 0 Environmental (EIR, Phase I, Asbestos, exc.) 990 47,500 0 47,500 0 0 0 Financial Advisor / Syndication Consultant 0 0 0 0 0 0 0 Furnishings 7,146 343,000 0 343,000 0 0 0 Impact Fees 12,011 576,527 0 576,527 0 0 0 Lease -up & Marketing Expenses 1,979 95,000 0 10,000 0 0 85,000 Legal 7,917 380,000 0 300,000 0 0 80,000 MHSA Construction Period Fees 0 0 0 0 0 0 0 Operating & Debt Service Reserve (3-mo's / debt) 3 2,939 141,058 0 0 0 0 141,058 Other (Admin, Repro. & Reimb.) 521 25,000 0 25,000 0 0 0 Other (Bank Inspections) 0 0 0 0 0 0 0 Other (Security) 375 18,000 0 18,000 0 0 0 Other (Capitalized Operating Subsidy Reserve) 26,457 1,269,920 0 0 0 0 1,269,920 Other (Jamboree Predevelopment Interest) 833 40,000 0 40,000 0 0 0 Other (Reduced Construction Loan Interest) 0 0 0 0 0 0 0 Other (Specify) 0 0 0 0 0 0 0 Other (Specify) 0 0 0 0 0 0 0 Other (Specify) 0 0 0 0 0 0 0 Other (Specify) 0 0 0 0 0 0 0 Permit Fees 9,301 446,463 0 446,463 0 0 0 Property Taxes and Insurance 7,917 380,000 0 300,000 0 0 80,000 Relocation 0 0 0 0 0 0 0 Replacement Reserve 0 0 0 0 0 0 0 Soft Cast Contingenry, 10.00 % 9,191 441,161 0 441,161 0 0 0 Tax Credit Fees (App., Mon., & Res.) 3,979 191,000 0 0 0 0 191,000 Title & R-min 885 42 500 0 42 500 0 0 0 TOTAL SOFT COSTS 127,556 6,12.2,689 0 4,275,711 0 0 1,846,978 DEVELOPER FEE/ OVERHEAD Developer Overhead 0 0 0 0 0 0 0 Develo er Fee 45 833 Z 200 000 0 Z 200 000 0 0 0 TOTAL DEVELOPER FEE / OVERHEAD 45,833 2, 200,000 0 2,200,000 0 0 0 Deferred Developer Description Fee and Casts Total $191,000 11 1 $25,000 000 •.-.$141,058 •.$1,269,920 Developer Fee $1,142,536 11 0 Deferred Co 1 1 Defe red Cost 11 1 Deferred 1 Deferred Cost 13 1 Deferred 1 Cost 15 $0 DeferredDeferred 1 Deforre Cost 17 1 TOTAL COSTS $2,847,014 YES 0 YES 0 YES 15,512,913 YES 0 YES 2,171,80: YES 339,312 YES 1,440,508 YES 718 NO 0 NO YES 7 YES 40,000 YES 35,000 YES 693,500 YES 158,140 YES 208,400 YES 550,520 YES 47,500 YES 0 YES 343,000 YES 576,527 NO 0 YES 380,000 YES 0 NO 0 YES 25,000 YES 0 YES 18,000 YES 1,269,920 YES 40,000 YES 0 YES 0 YES 0 YES 0 YES 0 YES 446,463 YES 380,000 YES 0 YES 0 YES 441,161 NO 0 YES 42.500 YES 0 City Council 13 - 84 3/7/2023 EXHIBIT 3 w -- WISEPIace PSH Unit Mix & Targeting Version: Revised: City of Santa Ana 9 % - TCAC Application 02/08/23 AVERAGE AFFORDABILITY 29% AMI NO. UNITS PERCENT UNIT MIX TOTAL NET GROSS 30% 47 98% BEDROOMS UNITS MGR PERCENT UTILITY MONTHLY ANNUAL 35% 0 0% ALLOWANCE RENT INCOME 40% 0 0% 0 47 0 98% 0 13,442 161,304 45% 0 0% 1 0 0 0% 74 0 0 500/, 0 0% 2 0 1 2% 103 0 0 55% 0 0% 3 0 0 0% 133 0 0 60% 0 0% 4 0 0 0% 163 0 0 TOTAL 47 TOTAL 47 1 100% 13,442 161,304 VLI 0 UNITS @ 30% 0.()% 0 2 30% 850 908 103 805 0 0 0 VLI 0 UNITS @ 30% 0.0% 0 3 300% 1,025 1,049 133 916 0 0 0 VLI 0 UNITS @ 35% 0.()% 0 1 35% 650 882 74 808 0 0 0 VLI 0 UNITS @ 35% 0.0% 0 2 35% 850 1,059 103 956 0 0 0 VLI 0 UNITS @ 35% 0.0% 0 3 350/0 1,025 1,224 133 1,091 0 0 0 VLI 0 UNITS @ 40% 0.0% 0 1 400% 650 1,009 74 935 0 0 0 VLI 0 UNITS @ 40% 0.0% 0 2 400% 850 1,211 103 1,108 0 0 0 VLI 0 UNITS @ 40% 0.0% 0 3 400% 1,025 1,399 133 1,266 0 0 0 VLI 0 UNITS @ 45% 0.0% 0 1 450% 650 1,135 74 1,061 0 0 0 VLI 0 UNITS @ 45% 0.0% 0 2 450% 850 1,362 103 1,259 0 0 0 VLI 0 UNITS @ 45% 0.0% 0 3 450% 1,025 1,573 133 1,440 0 0 0 VLI 0 UNITS @ 50% 0.0% 0 1 Soo/D 650 1,261 74 1,187 0 0 0 VLI 0 UNITS @ 50% 0.0% 0 2 50 % 850 1,513 103 1,410 0 0 0 VLI 0 UNITS @ 50% 0.0% 0 3 50% 1,025 1,748 133 1,615 0 0 0 LI 0 UNITS @ 60 % 0.0% 0 1 60% 650 11513 74 1,439 0 0 0 LI 0 UNITS @ 60% 0.0% 0 2 60% 850 1,816 103 1,713 0 0 0 LI 0 UNITS @ 60% 0.0% 0 3 60% 1,025 2,098 133 1,965 0 0 0 1 UNITS @ 0% MGR 2.1% 1 2 1,025 MGR TOTAL OR AVERAGE 48 29% 31,575 23,046 21,260 13,442 161,304 30,550 WISEPIace PSH zfTranche B - Loan Unit Mix & Targeting City of Santa Ana Jamboree Version: Revised: 02/08/23 AVERAGE AFFORDABILITY 30% AMI NO. UNITS PERCENT UNIT MIX NET GROSS 30% 25 100% BR UNITS MGR PERCENT UTILITY MONTHLY ANNUAL 35% 0 0% ALLOWANCE RENT INCOME 40% 0 0% 0 25 0 100% 0 0 454,200 450/, 0 0% 1 0 0 0% 74 0 0 50% 0 0% 2 0 0 0% 103 0 0 55% 0 0% 3 0 0 0% 133 0 0 60% 0 0% 4 0 0 0% 163 0 0 TOTAL 25 TOTAL 25 0 100% 0 454,200 NO.OF UNIT DESCRIPTION PERCENT UNITS 25 UNITS @ 30% SEC. 8 52.1% BEDROOMS 25 NO.OF 0 SET- 30% SF 650 TCAC 286 UTILITY 0 NET TCAC 286 PUBLIC SUBSIDY 1,800 NET MONTH LY 1,514 GROSS ANNUAL 454,200 RENT/SF 27.95 0 UNITS @ 30% SEC. 8 0.0% 0 2 30% 850 908 0 2,098 0 UNITS @ 30% SEC. 8 0.0% 0 3 30% 1,025 1,049 0 2,905 0 UNITS @ 35% SEC. 8 0.0% 0 1 35% 650 882 0 0 0 UNITS @ 35% SEC. 8 0.0% 0 2 35% 850 1,059 0 0 UNITS @ 35% SEC. 8 0.0% 0 3 35% 1,025 1,224 0 0 UNITS @ 40% SEC. 8 0.0% 0 1 40% 650 1,009 0 0 UNITS @ 40% SEC. 8 0.0% 0 2 40% 850 1,211 0 0 UNITS @ 40% SEC. 8 0.0% 0 3 40% 1,025 1,399 0 0 UNITS @ 45% SEC. 8 0.0% 0 1 45% 650 1,135 0 0 UNITS CO 45% SEC. 8 0.0% 0 2 45% 850 1,362 0 0 UNITS @ 45% SEC. 8 0.0% 0 3 45% 1,025 1,573 0 0 UNITS @ 50% SEC. 8 0.0% 0 1 50% 650 1,261 0 0 UNITS @ 50% SEC. 8 0.0% 0 2 50% 850 1,513 0 0 UNITS @ 50% SEC. 8 0.0% 0 3 50% 1,025 1,748 0 0 UNITS @ 60% SEC. 8 0.0% 0 1 60%D 650 1,513 0 0 UNITS @ 60% SEC. 8 0.0% 0 2 60% 850 1,816 0 0 UNITS @ 60% SEC. 8 0.0% 0 3 60% 1,025 2,098 1 UNITS @ 0% MGR 0.0% 0 2 1,025 MGR LOTAL OR AVERAGE 25 30% 16,250 23,046 286 1,514 454,200 27.95 City Council 13 - 85 3/7/2023 EXHIBIT 3 WISEPIace PSH Operating Budget - Summary City of Santa Ana Jambom , Version: 9% - TCAC Application Revised: 02/08/23 Real Estate Taxes 6,675 139 Insurance - Property 19,000 396 Utilities 59,203 1,233 Payroll 128,832 2,684 Repairs & Maintenance 65,678 1,368 Marketing 864 18 Administrative 44,208 921 Contract Services 4,080 85 Manager Rent 0 0 Agency Debt Service 0 0 Supportive Services 149,000 3,104 Other (Monitoring Fees) 4,180 87 Other (Misc. Licenses) 2,640 55 Other (Security) 18,432 384 Other (HCD Payments) 0 0 Operating Reserve 0 0 Replacement Reserve 24,000 500 TOTAL 564,232 11,755 City Council 13 — 86 3/7/2023 \ / \ k _\ „_____,,.. •` •� ¥ \U ¥c 9 } ( EXHIBIT 3 Exhibit Do. City/HOME-ARP Loan Deed of Trust City Council 13 — 88 3/7/2023 EXHIBIT 3 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council CITY HOME -ARP DEED OF TRUST AND ASSIGNMENT OF LEASES AND RENTS (1411 North Broadway, Santa Ana, California (APN 398-523-04) THIS DEED OF TRUST AND ASSIGNMENT OF RENTS ("Deed of Trust") is made as of this 7th day of March, 2023, by North Broadway Housing Partners LP, a California limited partnership ("Trustor") and WISEPIace, a California nonprofit public benefit corporation ("Obligor"; collectively, Trustor and Obligor are referred to as "Grantor"), , to Commonwealth Land Title Company, a California corporation, as trustee ("Trustee"), for the benefit of the City of Santa Ana, a charter city and municipal corporation, as beneficiary (`Beneficiary"). FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Grantor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE AND RIGHT OF ENTRY AND POSSESSION, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, all of Grantor's estate, right, title and interest that Grantor now has or may later acquire in and to the real property located in the City of Santa Ana, State of California, that is described in Exhibit A, attached hereto and incorporated herein by this reference (the "Property"), on which Trustor intends to construct and operate an apartment complex commonly known as WISEPIace Permanent Supportive Housing. TOGETHER WITH all interest, estates, leaseholds, or other claims, both in law and in equity which Grantor now has or may hereafter acquire in the Property and the leases and rents; TOGETHER WITH all easements, rights -of -way and rights used in connection therewith or as a means of access thereto, including without limiting the generality of the foregoing, all tenements, hereditament and appurtenances thereof and thereto; TOGETHER WITH any and all buildings, improvements and landscaping of every kind and description now or hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property (sometimes collectively referred to as the "Improvements"); 1 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 89 3/7/2023 EXHIBIT 3 TOGETHER WITH all building materials and equipment now or hereafter delivered to said Property and intended to be installed therein; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys, strips and gores of land adjacent to or used in connection with the Property and/or Improvements; TOGETHER WITH all estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all oil, gas and mineral rights (including royalty and leasehold rights relating thereto), all water and water rights and shares of stock relating thereto, all leases of all or any portion of the Property or Improvements entered into by Grantor as lessor or lessee, all options to purchase or lease all or any portion of the Property and/or Improvements, all deposits made with or other security given by Grantor to third parties including, utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Grantor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by and proceeding or purchase in lieu thereof of the whole or any part of such property; and TOGETHER WITH all articles of personal property or fixtures now or hereafter attached to, located on, installed in or used in and about the Property and/or Improvements, including without limitation, all partitions, generators, screens, boilers, furnaces, pipes, plumbing, elevators, cleaning and sprinkler systems, fire extinguishing machinery and equipment, water tanks, heating, ventilating, air conditioning and air cooling machinery and, equipment, gas and electric machinery and equipment and other appliances, machinery and equipment and other fixtures of every nature, all of which shall remain real property, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or shall be attached to the Property in any manner. TOGETHER WITH all present and future accounts, general intangibles, chattel paper, deposit accounts, investment property, instruments and documents as those terms are defined in the California Commercial Code, now or hereafter relating or arising with respect to the Property and/or Improvements and/or the use thereof or any improvements thereto, including without limitation: (i) all rights to the payment of money, including escrow proceeds arising out of the sale or other disposition of all or any portion of the Property and/or Improvements; (ii) all deposit accounts and other accounts and funds created under or pursuant to the Loan Agreement (as defined below), and the other Loan Documents, all amounts now or hereafter on deposit herein, and all interest and other earnings thereon with the exception of the operating reserve created pursuant to Trustor's Partnership Agreement (as defined in the Loan Agreement); (iii) all use permits, occupancy permits, construction and building permits, and all other permits and approvals required by any governmental or quasi -governmental authority in connection with the development, construction, use, occupancy or operation of the Property and/or Improvements; (iv) any and all agreements relating to the occupancy and/or operation of the Property and/or Improvements, including without limitation service, property management, landscaping, gardening, consulting and other contracts of every nature (to the extent the same are assignable); (v) all lease or rental agreements; (vi) all names under which the Property and/or Improvements 2 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 90 3/7/2023 EXHIBIT 3 are now or hereafter known and all rights to carry on business under any such names or any variant thereof, (vii) all trademarks relating to the Property and/or Improvements and/or the use, occupancy or operation thereof, (viii) all goodwill relating to the Property and/or Improvements and/or the use, occupancy or operation thereof, (ix) all insurance proceeds and condemnation awards arising out of or incidental to the ownership, use, occupancy or operation of the Property and/or Improvements; (x) all reserves, deferred payments, deposits, refunds, cost savings, bonds, insurance policies and payments of any kind relating to the Property and/or Improvements; (xi) all water stock, if any, relating to any Property and/or Improvements; (xii) all supplements, modifications and amendments to the foregoing and all present and future accessions, additions, attachments, replacements and substitutions of or to any or all of the foregoing; and (xiii) all cash and noncash proceeds and products of any or all of the foregoing, including without limitation all monies, deposit accounts, insurance proceeds and other tangible or intangible property received upon a sale or other disposition of any of the foregoing, whether voluntary or involuntary; and TOGETHER WITH all present and future goods, equipment and inventory, as those terms are defined in the California Commercial Code, and all other present and future personal property of any kind or nature whatsoever, now or hereafter located at, upon or about the Property and/or Improvements, or used or to be used in connection with or relating or arising with respect to the Property and/or Improvements, the use thereof or any improvements thereto. All of the foregoing, together with the Property, is herein referred to as the "Security'. To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever. FOR THE PURPOSE OF SECURING: (a) Payment of and performance of all indebtedness of Trustor to Beneficiary as set forth in the Loan Agreement (defined in Section 1.5 below) and the Note (defined in Section 1.6 below) in the original principal amount of Five Million Two Hundred Fifty -Six Thousand Three Hundred Twenty -Seven Dollars ($5,256,327) until paid or canceled. Said principal and other payments shall be due and payable as provided in the Loan Agreement and the Note. The Loan Agreement and the Note and all their terms are incorporated herein by reference, and this conveyance shall secure any and all extensions thereof, however evidenced; (b) Payment and performance of any sums advanced by Beneficiary to protect the Security pursuant to the terms and provisions of this Deed of Trust with interest thereon as provided herein; (c) Payment and performance of every other obligation, covenant or agreement of Trustor contained in this Deed of Trust and in the other "Loan Documents" (as such term is defined in the Loan Agreement); (d) Payment and performance of all renewals, extensions, supplements, amendments and other modifications of any of the foregoing, including without limitation modifications that are evidenced by new or additional documents or that change the rate of interest on any obligation. All of the foregoing obligations are referred to collectively herein as the "Obligations". 3 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 91 3/7/2023 EXHIBIT 3 AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES: Section 1. DEFINITIONS 1.1 Defined Terms. In addition to the terms defined elsewhere in this Deed of Trust or the Loan Agreement, the following terms shall have the following meanings in this Deed of Trust: "Debt Instrument" means any debt, loan, mortgage, deed of trust, regulatory agreement or security instrument relating to the Property or the Security, including, but not limited to, the Loan Documents. "Environmental Reports" [list to be provided under separate cover] "Ground Lease" mean the ground lease entered into by Trustor and Obligor, the same date hereof, and for a term of sixty-five (65) years. "Hazardous Substance" means: (a) any oil, flammable substance, explosive, radioactive material, hazardous waste or substance, toxic waste or substance or any other waste, material, or pollutant that (i) poses a hazard to the Property or to persons on the Property or (ii) causes the Property to be in violation of any Hazardous Substance Law; (b) asbestos in any form; (c) urea formaldehyde foam insulation; (d) transformers or other equipment that contain dielectric fluid containing levels of polychlorinated biphenyls; (e) radon gas; (f) any chemical, material, or substance defined as or included in the definition of "hazardous substance," "hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous waste," "restricted hazardous waste," or "toxic substances" or words of similar import under any applicable local, state, or federal law or under the regulations adopted or publications promulgated pursuant to those laws, including, but not limited to, any Hazardous Substance Law, Code of Civil Procedure § 564, as amended from time to time, Code of Civil Procedure § 726.5, as amended from time to time, Code of Civil Procedure §736, as amended from time to time, and Civil Code § 2929.5, as amended from time to time; (g) any other chemical, material, or substance, exposure to which is prohibited, limited, or regulated by any governmental authority with authority over the Property 4 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 92 3/7/2023 EXHIBIT 3 or which may pose a hazard to the health and safety of the occupants of the Property or the owners or occupants of property adjacent to or surrounding the Property, or any other person coming on the Property or any adjacent property; and environment. (h) any other chemical, material, or substance that may pose a hazard to the The term Hazardous Substance shall not include materials or substances commonly used in the construction and operation of an apartment complex in accordance with applicable Hazardous Substance Law. "Hazardous Substance Claim" means any enforcement, cleanup, removal, remedial, or other governmental, regulatory, or private actions, agreements, or orders threatened, instituted, or completed pursuant to any Hazardous Substance Law together with all claims made or threatened by any third party against Trustor or the Property relating to damage, contribution, cost -recovery compensation, loss, or injury resulting from the presence, release or discharge of any Hazardous Substance. "Hazardous Substance Law" means any federal, state, or local law, ordinance, regulation, or policy relating to the environment, health, and safety, any Hazardous Substance (including, without limitation, the use, handling, transportation, production, disposal, discharge, or storage of the substance), industrial hygiene, soil, groundwater, and indoor and ambient air conditions or the environmental conditions on the Property, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 [42 USCS §§ 9601 et seq.], as amended from time to time; the Hazardous Substances Transportation Act [49 USCS §§ 1801 et seq.], as amended from time to time; the Resource Conservation and Recovery Act [42 USCS §§ 6901 et seq.], as amended from time to time; the Federal Water Pollution Control Act [33 USCS §§ 1251 et seq.], as amended from time to time; the Hazardous Substance Account Act [Health and Safety Code §§ 25300 et seq.], as amended from time to time; the Hazardous Waste Control Law [Health and Safety Code §§ 25100 et seq.], as amended from time to time; the Medical Waste Management Act [Health and Safety Code §§ 25015 et seq.], as amended from time to time; and the Porter -Cologne Water Quality Control Act [Water Code §§ 13000 et seq.], as amended from time to time. "Limited Partner" means the Tax Credit Investor and any other Limited Partner(s) or Special Limited Partner(s) of Developer, and their successors and assigns. "Loan Agreement" means that certain Loan Agreement, which terms and provision are incorporated into this Deed of Trust by reference, of even date herewith between Trustor and Beneficiary. "Note" means that certain promissory note of even date herewith executed by the Trustor, the payment of which is secured by this deed of Trust. "Principal" means the aggregate of all principal and interest due under the Note. 5 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 93 3/7/2023 EXHIBIT 3 "Release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, including continuing migration, of Hazardous Substances that goes into the soil, surface water, or groundwater of the Property, whether or not caused by, contributed to, permitted by, acquiesced to, or known to Trustor. Any capitalized term referenced herein that is not specifically defined shall have the meaning set forth in the Loan Agreement or Note. Section 2. GENERAL COVENANTS OF TRUSTOR REGARDING THE PROPERTY, IMPROVEMENTS AND SECURITY 2.1. Payment of Secured Obligations. Trustor shall duly and punctually pay and perform all Obligations, including but not limited to all terms, covenants, conditions and agreements set forth in the Debt Instruments, the Loan Agreement, the Note, the Ground Lease and any other agreement of any nature whatsoever now or hereafter involving or affecting the Security or any part thereof. 2.2. Maintenance, Repair and Modification. (a) The Trustor agrees that at all times prior to full payment of the sum owed under the Note, the Trustor will, at the Trustor's own expense, maintain, preserve and keep the Security or cause the Security to be maintained and preserved in good condition and repair and in a prudent and businesslike manner. The Trustor will from time to time make or cause to be made all repairs, replacements and renewals to the Security, which are necessary or appropriate. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Security. (b) Trustor shall not remove, demolish or substantially alter any of the Improvements, other than to make repairs in the ordinary course of business of a non-structural nature which serve to preserve or increase the value of the Security without Beneficiary's prior written consent, which consent shall not be unreasonably withheld so long as Trustor provides reasonable evidence to Beneficiary that, following such demolition and restoration and/or alteration, the Improvements shall have a fair market value at least equal to their fair market value prior to such demolition and restoration and/or alteration; Trustor shall complete promptly and in a good and workmanlike manner any Improvement which may now or hereafter be constructed and promptly restore in like manner any Improvement which may be damaged or destroyed thereon from any cause whatsoever, and pay when due all claims for labor performed and materials furnished therefor; Trustor shall comply with all applicable laws, ordinances, rules, regulations, covenants, conditions, restrictions and orders of any governmental authority now or hereafter affecting the conduct or operation of Trustor's business or the security or any part thereof or requiring any alteration or improvement to be made thereon; Trustor shall not commit, suffer or permit any act to be done in, upon or to the Security or any part thereof in violation of any such applicable laws, ordinances, rules, regulations or orders, or any covenant, condition or restriction now or hereafter affecting the Security; Trustor shall not commit or permit any waste or deterioration of the Security, and shall keep and maintain abutting grounds, sidewalks, roads, 6 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 94 3/7/2023 EXHIBIT 3 parking and landscape areas in good and neat order and repair; Trustor will not take (or fail to take) any action, which if taken (or not so taken) would increase in any way the risk of fire or other hazard occurring to or affecting the Security or otherwise would impair the security of Beneficiary in the Security; Trustor shall comply with the provisions of all leases, if any, constituting a portion of the Security, inclusive of the Ground Lease and all subsequent leases for residents of the Property; Trustor shall not abandon the Security or any portion thereof or leave the Security unprotected, unguarded, vacant or deserted; Trustor shall not initiate, join in or consent to any change in any zoning ordinance, general plan, specific plan, private restrictive covenant or other public or private restriction limiting the uses which may be made of the Security by Trustor or by the owner thereof; Trustor shall secure and maintain in full force all permits necessary for the use, occupancy and operation of the Security; except as otherwise prohibited or restricted by the Loan Agreement and the other instruments and documents executed in connection with the transaction to which the Loan Agreement pertains or any of them, Trustor shall do any and all other acts which are reasonably necessary to protect or preserve the value of the Security and the rights of Trustee and Beneficiary with respect thereto. 2.3. Granting of Easements. Trustor may not grant easements, licenses, rights -of -way or other rights or privileges in the nature of easements with respect to any property or rights included in the Security except those required or desirable for installation and maintenance of public utilities including, without limitation, water, gas, electricity, sewer, telephone and telegraph, or those required by law. 2.4. Agreement to Pay Attorneys' Fees and Expenses. In the event of any Event of Default (as defined below) hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of an obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so paid by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the indebtedness secured by the lien of this Deed of Trust, and shall bear interest from the date such expenses are paid at the Agreed Rate (as defined in Section 3.1(d) below). 2.5. Payment of the Principal. The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth in the Note in the amounts and by the times set out therein. 2.6. Fixture Filing and Security Agreement. (a) To the maximum extent permitted by law, the personal property subject to this Deed of Trust shall be deemed to be fixtures and part of the real property and this Deed of Trust shall constitute a fixture filing under the California Commercial Code. As to any personal property not deemed or permitted to be fixtures, this Deed of Trust shall constitute a security agreement under the California Commercial Code and Trustor hereby grants to Beneficiary a security interest in all of Trustor's right, title and interest, whether now existing or hereafter 7 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 95 3/7/2023 EXHIBIT 3 arising, in and to any portion of the Property which constitutes personal property (the "Personal Property"). (b) Trustor hereby represents and warrants to Beneficiary that: (1) Trustor is the owner of the Personal Property and no other person has any right, title, claim or interest (by way of security interest or other lien or charge or otherwise) in, against or to the Personal Property other than any senior lender or lien holder approved in writing by Beneficiary; (2) the Personal Property is free from all liens, security interests, encumbrances and adverse interests, except Permitted Encumbrances (hereinafter defined); (3) no financing statement or similar filing covering any of the Personal Property, and naming any secured party other than Beneficiary and the holders of Permitted Encumbrances, is on file in any public office; (4) each account, general intangible, chattel paper, deposit account, instrument, document, agreement, contract or right to the payment of money constituting Personal Property (collectively, the "Rights to Payment"), if any, is genuine and enforceable in accordance with its terms against the party obligated to pay the same and (5) the Personal Property is not used nor was the Personal Property purchased for personal or family use by Trustor. (c) Trustor hereby agrees: (1) to pay, prior to delinquency, all taxes, assessments, charges, encumbrances and liens now or hereafter imposed upon or affecting all or any part of the Personal Property; (2) not to amend, modify, supplement, terminate or cancel any of the Personal Property; (3) without the prior written consent of Beneficiary, not to remove all or any part of the tangible Personal Property from the Property; (4) to give Beneficiary thirty (30) days' prior written notice of any change in Trustor's residence, principal place of business, chief executive office or trade names or styles; (5) to appear in and defend any action or proceeding which may affect the Personal Property (including, without limitation, actions, proceedings and claims which may affect Trustor's title to the Personal Property or the validity or priority of Beneficiary's security interest in the Personal Property); (6) to indemnify Beneficiary against all claims, demands and liabilities of every kind caused by the Personal Property; and (7) upon not less than 72 hours' prior written notice and during regular business hours, to permit Beneficiary to enter Trustor's premises to inspect the Personal Property; provided, that Trustor shall have the right to require that a representative of Trustor be present during any such entry made while any construction and/or rehabilitation work is occurring. Trustor further agrees (8) to fully and timely perform all of its obligations under and with respect to all Rights of Payment and to diligently enforce all of the obligations of each obligor thereunder; (9) not to amend, modify, supplement, cancel or terminate any of the Rights to Payment in any material respect without the prior written consent of Beneficiary; (10) to keep the Rights to Payment and all proceeds free and clear of all defaults, defenses, rights of offset and counterclaim; (11) to take or bring, in Beneficiary's name or in the name of Trustor, as Beneficiary may require, all actions, suits or proceedings reasonably deemed necessary by Beneficiary to effect collection or to realize upon Rights to Payment; and (12) not to commingle Rights to Payment or collections thereunder with other property. (d) As soon as practicable, and in any event within ten (10) days, Trustor shall notify Beneficiary o£ (1) any attachment or other legal process levied against any of the Personal Property; (2) any information received by Trustor which may in any manner materially and adversely affect the value of the Personal Property or the rights and remedies of Beneficiary with respect thereto; and (3) the removal of any of the Personal Property to a new location other than 8 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 96 3/7/2023 EXHIBIT 3 in the ordinary course of business and the removal of any records of Trustor relating to the Personal Property to any location other than the Land and Improvements. (e) Trustor hereby irrevocably constitutes and appoints Beneficiary as its attorney -in - fact to, after the occurrence and during the occurrence of an Event of Default: (1) perform any obligation of Trustor hereunder in Trustor's name or otherwise; (2) give notice of Beneficiary's rights in the Rights to Payment, to enforce the same, and make extension agreements with respect thereto; (3) release persons liable on the Rights to Payment and to give receipts and acquittances and compromise disputes in connection therewith; (4) release security for the Rights to Payment; (5) resort to security for the Rights to Payment in any order; (5) prepare, execute, file, record or deliver notes, assignments, schedules, designation statements, financing statements, continuation statements, termination statements, and other documents to perfect preserve or release Beneficiary's interest in the Rights to Payment; and (6) do all acts and things and execute all documents in the name of Trustor or otherwise, deemed by Beneficiary as necessary, proper and convenient in connection with the preservation, perfection or enforcement of its rights hereunder. The power of attorney granted hereunder is coupled with an interest and is irrevocable. 2.7. Financing Statement. The Trustor shall execute and deliver to the Beneficiary such financing statements pursuant to the appropriate statutes, and any other documents or instruments as are required to convey to the Beneficiary a valid perfected security interest in the Security. The Trustor agrees to perform all acts that the Beneficiary may reasonably request so as to enable the Beneficiary to maintain such valid perfected security interest in the Security in order to secure the payment of the Note in accordance with its terms. The Beneficiary is authorized to file a copy of any such financing statement in any jurisdiction(s) as it shall deem appropriate from time to time in order to protect the security interest established pursuant to this instrument. 2.8. Operation of the Security. The Trustor agrees and covenants to operate the Security in full compliance with the Loan Agreement, the Debt Instruments, and the Ground Lease. 2.9. Inspection of the Security. The Trustor covenants and agrees that at any and all reasonable times during regular business hours and upon not less than 72 hours' prior written notice, the Beneficiary and its duly authorized agents, attorney's experts, engineers, accountants and representatives, shall have the right, without payment of charges or fees, to inspect all or any portion of the Security, including, but not limited to, the right to inspect and copy all reports and records pertaining thereto provided, that Trustor shall have the right to require that a representative of Trustor be present during any entry onto the Property made while any construction and/or rehabilitation work is occurring. 2.10. Nondiscrimination. 9 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 97 3/7/2023 EXHIBIT 3 The Trustor herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, age, marital status, national origin, ancestry or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Security, nor shall the Trustor itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Security. The foregoing covenants shall run with the land. 2.11. Subrogation and Waiver of Offset. (a) Trustor waives any and all right to claim or recover against Beneficiary, its officers, employees, agents and representatives, for loss of or damage to Trustor, the Security, Trustor's property or the property of others under Trustor's control from any cause insured against or required to be insured against by the provisions of this Deed of Trust; provided, however, that this waiver of subrogation shall not be effective with respect to any policy of insurance permitted or required by this Deed of Trust if (i) such policy prohibits, or if coverage thereunder would be reduced as a result of, such waiver of subrogation and (ii) Trustor is unable to obtain from a carrier issuing such insurance a policy that, by special endorsement or otherwise, permits such a waiver of subrogation. (b) Except as otherwise specifically provided herein, all amounts payable by Trustor pursuant to this Deed of Trust shall be paid without notice, demand, counterclaim, setoff, deduction or defense and without abatement, suspension, deferment, diminution or reduction, and the obligations and liabilities of Trustor hereunder shall in no way be released, discharged or otherwise affected (except as expressly provided herein) by reason of: (i) any damage to or destruction of or any condemnation or similar taking of the Security or any part thereof, (ii) any restriction or prevention of or interference by any third party with any use of the Security or any part thereof, (iii) any title defect or encumbrance or any eviction from the Security or any part thereof by title paramount or otherwise; (iv) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to Beneficiary, or any action taken with respect to this Deed of Trust by any trustee or receiver of Beneficiary, or by any court, in any such proceeding; (v) any claim which Trustor has or might have against Beneficiary; (vi) any default or failure on the part of Beneficiary to perform or comply with any of the terms hereof or of any other agreement with Trustor; or (vii) any other occurrence whatsoever, whether similar or dissimilar to the foregoing. Except as expressly provided herein, Trustor waives all rights now or hereafter conferred by statute or otherwise to any abatement, suspension, deferment, diminution or reduction of any sum secured hereby and payable by Trustor. 2.12. Utilities. Trustor shall pay or cause to be paid when due all utility charges which are incurred for the benefit of the Security or which may become a charge or lien against the Security for gas, electricity, water, sewer services or other fees and charges for utilities furnished to the Security and all other assessments or charges of a similar nature, whether public or private, affecting or 10 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 98 3/7/2023 EXHIBIT 3 related to the Security or any portion thereof, whether or not such taxes, assessments or charges are or may become liens thereon. 2.13. Actions by Beneficiary to Preserve Property. If Trustor fails to make any payment or to do any act as and in the manner provided in this Deed of Trust, Beneficiary and Trustee, and each of them, each in its own discretion, without obligation to do so, without releasing Trustor from any Obligation, and subject only to the notice and cure provisions of the Loan Agreement, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof. In connection therewith (without limiting their general and other powers, whether conferred herein, in another Loan Document or by law), Beneficiary and Trustee shall each and are hereby given the right, but not the obligation: (i) to enter upon and take possession of the Security; (ii) to make additions, alterations, repairs and improvements to the Security which either of them consider necessary or proper to keep the Security in good condition and repair; (iii) to appear and participate in any action or proceeding which may affect the security hereof or the rights or powers of Beneficiary or Trustee; (iv) to pay, purchase, contest or compromise any encumbrance, claim, charge, lien or debt which in the judgment of either may affect the security of this Deed of Trust or be prior or superior hereto; and (v) in exercising such powers to pay necessary expenses, including employment of counsel or other reasonably necessary consultants. Trustor shall reimburse Beneficiary on demand for all costs incurred by Beneficiary in connection with actions which Beneficiary reasonably deems necessary to protect its interest under the Loan Agreement and all such amounts shall bear interest at the Agreed Rate following demand and be secured hereby. 2.14. Transfer of Property by Trustor. Prior to repayment of the Note, Trustor agrees that Trustor shall not sell or transfer the Security or any interest therein or sell or transfer all or substantially all of the assets of Trustor or any of them except as may be provided in the Loan Agreement. 2.15. Additional Security. No other security now existing, or hereafter taken, to secure the Obligations secured hereby or the liability of any maker, surety guarantor or endorser with respect to such Obligations, or any of them, shall be impaired or affected by the execution of this Deed of Trust; and all additional security shall be taken, considered and held as cumulative. The taking of additional security, execution of partial releases of the Security, or any extension of the time of payment of the indebtedness shall not diminish the force, effect or lien of this Deed of Trust and shall not affect or impair the liability of any maker, surety, guarantor or endorser for the payment of said indebtedness. In the event Beneficiary at any time holds additional security for any of the Obligations secured hereby, it may enforce the sale thereof or otherwise realize upon the same, at its option, either before, concurrently, or after a sale is made hereunder. 2.16. Liens. Trustor shall not cause, incur suffer or permit to exist or become effective any lien, encumbrance or charge upon all or any part of the Property, the Improvements or any interest therein other than (a) easements, rights of way, covenants, conditions, restrictions, liens, and 11 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 99 3/7/2023 EXHIBIT 3 other title limitations approved in writing by Beneficiary prior to the execution of this Deed of Trust, (b) immaterial easements and rights of way which are required by governmental authorities as a condition to the use and operation of the Improvements which are approved in writing by Beneficiary after the execution of this Deed of Trust, which approval shall not be unreasonably withheld or delayed, (c) easements, rights of way, covenants, conditions, restrictions, liens and other title limitations allowed pursuant to Section 2.3 hereof and (d) deeds of trust, regulatory agreements and covenants contained in that certain lender's title policy issued to the Beneficiary in connection with the Loan on or about the date hereof (the "Permitted Encumbrances"). Trustor shall pay and promptly discharge, at Trustor's cost and expense, all liens, encumbrances and charges upon the Security, or any part thereof or interest therein other than the Permitted Encumbrances; provided, that the existence of any mechanic's, laborer's, materialman's, supplier's or vendor's lien or right thereto shall not constitute a violation of this Section if payment is not yet due under the contract which is the foundation thereof. Trustor shall have the right to contest in good faith the validity of any such lien, encumbrance or charge, provided Trustor shall first deposit with the Beneficiary a bond or other security reasonably satisfactory to Beneficiary in such amounts as Beneficiary shall reasonably require, but not more than one hundred fifty percent (150%) of the amount of the claim or shall post a bond authorized by statute in lieu thereof, and provided further that Trustor shall thereafter diligently proceed to cause such lien, encumbrance or charge to be removed and discharged. If Trustor shall fail to remove and discharge any such lien, encumbrance, or charge, then, in addition to any other right or remedy of Beneficiary, Beneficiary may, but shall not be obligated to, discharge the same, without inquiring into the validity of such lien, encumbrance or charge nor into the existence of any defense or offset thereto, either by paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in court a bond or the amount claimed, or otherwise giving security for such claim, in such manner as is or may be prescribed by law. Trustor shall, promptly upon demand therefor by Beneficiary, pay to Beneficiary an amount equal to all costs and expenses incurred by Beneficiary in connection with the exercise by Beneficiary of the foregoing right to discharge any such lien, encumbrance or charge, together with interest thereon from the date of such expenditure at the Agreed Rate and, until paid, such sums shall be secured hereby. 2.17. Beneficiary's Powers. Without affecting the liability of any other person liable for the payment of any Obligation herein mentioned, and without affecting the lien or charge of this Deed of Trust upon any portion of the Security not then or theretofore released as security for the full amount of all unpaid Obligations, Beneficiary may, from time to time and without notice: (a) release any person so liable, (b) extend the maturity or alter any of the terms of any such Obligation (to the extent that Beneficiary is so allowed under the Loan Agreement), (c) grant other indulgences, (d) release or reconvey, or cause to be released or reconveyed at any time at Beneficiary's option any parcel, portion or all of the Security, (e) take or release any other or additional security for any Obligation herein mentioned, or (f) make compositions or other arrangements with debtors in relation thereto. By accepting payment or performance of any Obligation secured by this Deed of Trust after the payment or performance thereof is due or after the filing of notice of default and election to sell (other than satisfaction in full of the Obligations), Beneficiary shall not have thereby waived its right to require prompt payment or performance, when due, of all other Obligations secured hereby, or to declare a default for failure so to pay or perform, or to proceed 12 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 100 3/7/2023 EXHIBIT 3 with the sale under any notice of default and election to sell theretofore given by Beneficiary, or with respect to any unpaid balance of the indebtedness secured hereby. The acceptance by Beneficiary of any sum in an amount less than the sum then due shall not constitute a waiver of the obligation of Trustor to pay the entire sum then due. Trustor's failure to pay the entire sum then due shall continue to be a default, notwithstanding the acceptance of partial payment, and, until the entire sum then due shall have been paid, Beneficiary or Trustee shall at all times be entitled to declare a default and to exercise all the remedies herein conferred, and the right to proceed with a sale under any notice of default and election to sell shall in no way be impaired, whether or not such amounts are received prior or subsequent to such notice. No delay or omission of Trustee or Beneficiary in the exercise of any other right or power hereunder shall impair such right or power or any other right or power nor shall the same be construed to be a waiver of any default or any acquiescence therein. 2.18. Suits to Protect Property. Trustor agrees to appear in and defend any action or proceeding purporting to affect the security of this Deed of Trust or any additional or other security for the obligations secured, the interest of Beneficiary of the rights, powers and duties of Trustee, and to pay all costs and expenses, including without limitation, cost of evidence of title and reasonable attorneys' fees, in any action or proceeding in which Beneficiary or Trustee may appear to be made a party, including, but not limited to, foreclosure or other proceeding commenced by those claiming a right to any part of the Property under subordinate liens, in any action to partition or condemn all or part of the Property, whether pursued to final judgment, and in any exercise of the power of sale in this Deed of Trust, whether the sale is actually consummated. 2.19. Title to Real Property. Trustor lawfully possesses and holds a leasehold interest in the Property under the Ground Lease, and fee simple title to all of the Improvements, and Obligor owns good and marketable fee simple title to the Property. Grantor owns all of the beneficial and equitable interest in and to the Real Property, and is lawfully seized and possessed of the Property. Grantor has the right and authority to convey the Property and does hereby convey the Property with general warranty. The Property is subject to no Encumbrances other than the Permitted Encumbrances. 2.20. Title to Improvements Trustor has good title to the Improvements and any other Security (aside from the Property), and such other Security is not subject to any Encumbrance other than the Permitted Encumbrances. 2.21 Leases and Tenants. The Ground Lease is valid and in full force and effect, and Trustor is not in default under any of the terms thereof. Except as expressly permitted in the Loan Agreement, Trustor has not accepted any rents in advance of the time the same became due under the leases and has not forgiven, compromised or discounted any of the rents. Trustor has title to and the right to assign the Ground Lease, all other leases, and rents to Beneficiary, and no other assignment of the 13 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 101 3/7/2023 EXHIBIT 3 leases or rents has been granted, except for any Permitted Encumbrances. To the best of Trustor's knowledge and belief, no tenant or tenants occupying, individually or in the aggregate, more than five percent (5%) of the net rentable area of the Improvements are in default under their leases or are the subject of any bankruptcy, insolvency or similar proceeding. 2.22 Affordability Covenant. The Affordability Restrictions on Transfer of Property ("Affordability Restrictions"), the same date hereof, and executed in connection with the Loan Agreement, is valid and in full force and effect. Grantor agrees and hereby acknowledges that the Affordability Restrictions shall be recorded as an encumbrance against the Security, inclusive of the leasehold interest established by the Ground Lease and the fee simple interest owned by Obligor. Section 3. TAXES AND INSURANCE; ADVANCES 3.1. Taxes, Other Governmental Charges and Utility Charges. (a) Trustor shall pay, prior to delinquency, all real property taxes and assessments, general and special, and all other charges of any kind, including without limitation non- governmental levies or assessments such as maintenance charges, levies or other charges resulting from covenants, conditions and restrictions affecting the Security, which are assessed or imposed upon the Security or upon Trustor as owner or operator of the Security, or become due and payable, and which create or may create a lien upon the Security, or any part thereof, or upon any personal property, equipment or other facility used in the operation or maintenance thereof (all the above collectively hereinafter referred to as "Impositions"); provided, however, that if, by law, any Imposition is payable, or may at the option of the taxpayer be paid, in installments, Trustor may pay the same in installments (together with any interest charged) as the same become due and before any fine, penalty or cost may be added thereto for the nonpayment of any such installment. Notwithstanding the foregoing, Trustor shall have the right to diligently contest, in good faith and by appropriate proceedings, the validity of any Imposition, so long as Trustor demonstrates to Beneficiary that Trustor is maintaining sufficient reserves for the payment of all contested liabilities and so long as the security and value of Beneficiary's interest under this Deed of Trust are not impaired as a result of such contest. (b) If at any time after the date hereof there shall be assessed or imposed (1) a tax or assessment on the Security in lieu of or in addition to the Impositions payable by Trustor pursuant to this Section 3.1 hereof, or (2) a license fee, tax or assessment imposed on Beneficiary and measured by or based in whole or in part upon the amount of the outstanding Obligations secured hereby, then all such taxes, assessments or fees shall be deemed to be included within the term "Impositions" as defined in this Section and Trustor shall pay and discharge the same as herein provided with respect to the payment of Impositions. If Trustor fails to pay such Impositions prior to delinquency or if Trustor is prohibited by law from paying such Impositions, Beneficiary may at its option declare all Obligations secured hereby, together with all accrued interest thereon, immediately due and payable. Anything to the contrary herein notwithstanding, Trustor shall have no obligation to pay any franchise, estate, inheritance, income, excess profits or similar tax levied on Beneficiary or on the Obligations secured hereby. 14 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 102 3/7/2023 EXHIBIT 3 (c) Trustor shall deliver to Beneficiary within thirty (30) days after the date upon which any such Imposition is due and payable by Trustor official receipts of the appropriate taxing authority, or other proof reasonably satisfactory to Beneficiary, evidencing the payment thereof. Trustor shall not suffer, permit or initiate the joint assessment of any real and personal property which may constitute all or a portion of the Security and the personal property or suffer, permit or initiate any other procedure whereby the lien of real property taxes and the lien of personal property taxes shall be assessed, levied or charged to the Security as a single Lien. Trustor shall cause to be furnished to Beneficiary a tax reporting service, covering the Property, of a type and duration, and with a company, reasonably satisfactory to Beneficiary. (d) In the event that Trustor shall fail to pay any of the foregoing items required by this Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to fully pay such items within fifteen (15) business days after receipt of such notice. Any amount so advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the lesser of twelve percent (12%) per annum or the maximum rate permitted by law (hereinafter the "Agreed Rate"), shall become an additional Obligation of Trustor to the Beneficiary and shall be secured hereby, and Trustor agrees to pay all such amounts. 3.2. Insurance. (a) Trustor agrees to provide insurance conforming in all respects to that required under the Loan Agreement at all times until all amounts secured by this Deed of Trust have been paid and all other Obligations secured hereunder fulfilled, and this Deed of Trust reconveyed. All such insurance policies and coverages shall be maintained at Trustor's sole cost and expense. (b) All said insurance shall have attached thereto a lender's loss payable endorsement for the benefit of Beneficiary in form reasonably satisfactory to the Beneficiary and/or shall name Beneficiary as an additional insured, as Beneficiary may require, and shall contain an endorsement or agreement by the insurer that any loss shall be payable in accordance with the terms of such policies notwithstanding any act or negligence of Trustor or any party holding under Trustor which might otherwise result in forfeiture of said insurance and the further agreement of the insurer waiving all rights of setoff, counterclaim and deduction against Trustor. At Beneficiary's option, Trustor shall furnish Beneficiary with an original of all required policies of insurance and/or a certificate of insurance with all required endorsements for each required policy setting forth the coverage, the limits of liability, the deductible, if any, the name of the carrier, the policy number, and the period of coverage, which certificates and endorsements shall be executed by authorized officials of the companies issuing such insurance, or any agents or attorneys -in -fact authorized to issue said certificates and endorsements (in which event each such certificate and endorsements shall be accompanied by a notarized affidavit, agency agreement or power of attorney evidencing the authority of the signatory to issue such certificate on behalf of the insurer named therein), accompanied by a certificate from Trustor that the insurance satisfies the requirements of the Loan Agreement, and that Beneficiary may conclusively rely on such certificates. If Beneficiary consents (which consent shall not be unreasonably withheld or delayed), Trustor may provide any of the required insurance through blanket policies carried by Trustor and covering more than one location; provided, however, all such policies shall be in form and substance and issued by companies reasonably satisfactory to Beneficiary. 15 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 103 3/7/2023 EXHIBIT 3 (c) At least thirty (30) days prior to the expiration of each required policy, Trustor shall deliver to Beneficiary evidence reasonably satisfactory to Beneficiary of the payment of premium and the renewal or replacement of such policy continuing insurance in form as required by this Deed of Trust or the Loan Agreement. All such policies shall contain a provision that, notwithstanding any contrary agreement between Trustor and the insurance company, such policies will not be canceled, allowed to lapse without renewal, surrendered or materially amended (which term shall include any reduction in the scope, or limits of coverage), other than for nonpayment, without at least thirty (30) days prior written notice to Beneficiary. (d) In the event of foreclosure of this Deed of Trust or other transfer of title or assignment of the Property in extinguishment, in whole or in part, of the debt secured hereby, all right, title and interest of Trustor in and to all policies of insurance required by Section 3.2 hereof and any unearned premiums paid thereon shall, without further act, be assigned to and shall inure to the benefit of and pass to the successor in interest to Trustor or the purchaser or grantee of the Property, and Trustor hereby appoints Beneficiary its lawful attorney -in -fact to execute an assignment thereof and any other document necessary to effect such transfer. 3.3. Advances. In the event the Trustor shall fail to maintain the full insurance coverage required by this Deed of Trust or shall fail to keep the Security in accordance with the Loan Agreement, the Beneficiary, after at least twenty (20) days prior written notice to Trustor, may (but shall be under no Obligation to) take out the required policies of insurance and pay the premiums on the same or may make such repairs or replacements as are necessary and provide for payment thereof; and all amounts so advanced therefor by the Beneficiary shall become an additional Obligation of the Trustor to the Beneficiary (together with any applicable interest) and shall be secured hereby, which amounts the Trustor agrees to pay on the demand of the Beneficiary, and if not so paid, shall bear interest from the date of the advance at the Agreed Rate. Section 4. DAMAGE, DESTRUCTION OR CONDEMNATION 4.1. Casualties. Trustor shall give prompt written notice to Beneficiary upon the occurrence of casualty to or in connection with the Security or any part thereof, whether or not covered by insurance. In the event of such casualty, subject to the rights of any senior lender, Trustor hereby absolutely and unconditionally assigns to Beneficiary all insurance proceeds which it may be entitled to receive and such proceeds shall be delivered to and held by Beneficiary to be applied to Beneficiary's expenses in settling, prosecuting or defending any insurance claim, and then to the restoration of any portion of the Security that has been damaged or destroyed to the same condition, character and value as existed prior to such damage or destruction so long as the following conditions are satisfied: (i) Trustor is not in default hereunder (other than any default resulting from such casualty), (ii) Beneficiary's security is not materially impaired, (iii) all income (from the Security or otherwise) required to pay all debt service and operating expenses of the Security during such restoration and thereafter will be equal to or greater than the income which was required to pay such debt service and operating expenses prior to the casualty, (iv) Trustor evidences to the reasonable satisfaction of Beneficiary that the insurance required to be 16 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 104 3/7/2023 EXHIBIT 3 maintained hereunder will be available to the Trustor during restoration and thereafter, (v) Beneficiary shall have approved the plans and specifications for such restoration, which approval shall not be unreasonably withheld or delayed, and (vi) in the event that in Trustor's reasonable judgment the insurance proceeds and any amounts deposited with a senior lender are not sufficient to accomplish restoration, Trustor deposits with the Beneficiary or senior lender, if and to the extent required by that senior lender pursuant to the terms of the senior debt instrument, within five days of demand by Beneficiary, the additional amounts necessary to accomplish restoration. Proceeds disbursed for restoration will be released to Trustor in accordance with Beneficiary's then current customary disbursement procedures. In the event any of the conditions set forth above are not satisfied or if the insurance proceeds shall not be applied to the restoration of the Security within thirty days after receipt of such proceeds by Beneficiary, Beneficiary may release such proceeds to Trustor without such release being deemed a payment of any indebtedness secured hereby, rather than apply such proceeds to the restoration of the Security. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. If the Security is restored at a cost less than the available insurance proceeds, then such excess proceeds shall, if Trustor is not then in default hereunder, be paid over to Trustor. Beneficiary may commence, appear in, defend or prosecute any assigned claim or action, and may adjust, compromise, settle and collect all claims, proceeds and awards assigned to Beneficiary, but shall not be responsible for any failure to collect any claim, proceeds or award, regardless of the cause of the failure. 4.2. Condemnation. Promptly upon its obtaining knowledge of the institution or the threatened institution of any proceeding for the condemnation or other taking for public or quasi -public use of the Security or any part thereof, or if the same be taken or damaged by reason of any public improvement or condemnation proceeding, or in any other manner, or should Trustor receive any notice or other information regarding such proceedings, action, taking or damage, Trustor shall promptly notify Trustee and Beneficiary of such fact. Trustor shall then, if requested by Beneficiary, file or defend its right thereunder and prosecute the same with due diligence to its final disposition and shall, subject to the rights of any senior lender, cause any award or settlement to be paid to Beneficiary in accordance with the provisions of the Loan Agreement. At Beneficiary's option, Beneficiary or Trustor may be the nominal party in such proceeding but in any event Beneficiary shall be entitled, without regard to the adequacy of its security, to participate in, appear in, prosecute and settle, jointly with Trustor to control the same and to be represented therein by counsel of its choice, and Trustor will deliver, or cause to be delivered, to Beneficiary such instruments as may be requested by it from time to time to permit such participation. Trustor and Beneficiary agree to act in good faith with respect to any consent, settlement, or award arising out of said prosecution. If the Security or any part thereof is taken or diminished in value, or if a consent settlement is entered, by or under threat of such proceedings, all compensation, awards, damages, rights of action proceeds and settlements payable to Trustor by virtue of its interest in the security shall be and hereby are assigned, transferred and set over into Beneficiary to be held by it, in trust, subject to the lien and security interest of this Deed of Trust. All such proceeds shall be first applied to reimburse Trustee and Beneficiary, for all costs and expenses, including reasonable attorneys' fees, incurred in connection with the collection of such award or settlement, and then to the restoration of any portion of the Security that has been taken to the similar condition, character and value as existed 17 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 105 3/7/2023 EXHIBIT 3 prior to such taking so long as the following conditions are satisfied: (i) Trustor is not in default hereunder, (ii) Beneficiary's security is not materially impaired, (iii) all income (from the Security or otherwise) required to pay all debt service and operating expenses of the Security during such restoration and thereafter will be equal to or greater than the income which was required to pay such debt service and operating expenses prior to the casualty, (iv) Trustor evidences to the _reasonable satisfaction of Beneficiary that the insurance required to be maintained hereunder will be available to the Trustor during restoration and thereafter, (v) Beneficiary shall have approved the plans and specifications for such restoration, and (vi) in the event that in Trustor's reasonable judgment the insurance proceeds and any amounts deposited with a senior lender are not sufficient to accomplish restoration, Trustor deposits with the Beneficiary or senior lender, if and to the extent required by that senior lender pursuant to the terms of the senior Debt Instrument, within five days of demand by Beneficiary, the additional amounts necessary to accomplish restoration. Application or release of proceeds as provided herein shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. Section 5. ENVIRONMENTAL COVENANTS OF TRUSTOR 5.1. Disclosures By Trustor. Except as disclosed in writing to, and acknowledged and accepted in writing by Beneficiary, including, without limitation, as set forth in the Environmental Reports, copies of which have been provided to Beneficiary prior to the execution of this Deed of Trust, Trustor represents and warrants that: (a) During Trustor's ownership of a leasehold interest in the Property (1) there has been no use, generation, manufacture, storage, treatment, disposal, discharge, Release, or threatened Release of any Hazardous Substance by any person on or around the Property except in such small quantities as are customary and usual in the ordinary course of constructing, using and operating a residential housing business on the Property and in strict compliance with all Hazardous Substances Laws, and (2) there have been no Hazardous Substances transported over or through the Property; (b) Trustor has no knowledge of, or reason to believe that, there has been: (1) any use, generation, manufacture, storage, treatment, disposal, Release, or threatened Release of any hazardous waste or substance by any prior owners or prior occupants of the Property or by any third parties onto the Property, or (2) any actual or threatened litigation or claims of any kind by any person relating to these matters; (c) to Trustor's knowledge, no Hazardous Substances in excess of permitted levels or reportable quantities under applicable Hazardous Substance Laws are present in or about the Property or any nearby real property that could migrate to the Property; 18 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 106 3/7/2023 EXHIBIT 3 (d) to Trustor's knowledge, no Release or threatened Release exists or has occurred; (e) to Trustor's knowledge, no underground storage tanks of any bind are or ever have been located in or about the Property; (f) the Property and all of Trustor's contemplated operations and activities at, and Trustor's contemplated use and occupancy of, the Property comply with all applicable Hazardous Substance Laws; (g) Trustor is now in strict compliance with, every permit, license, and approval required by all applicable Hazardous Substance Laws for all activities and operations at, and the use and occupancy of, the Property; (h) to Trustor's knowledge, there are no Hazardous Substance Claims pending or threatened with regard to Property or against Trustor; (i) to Trustor's knowledge the Property has not been nor is it within 2,000 feet of any other property designated as "hazardous waste property" or "border zone property," as applicable, pursuant to Health and Safety Code §§ 25220 et seq, and no proceedings for a determination of this designation are pending or threatened; 0) to Trustor's knowledge, there exists no occurrence or condition on any real property adjoining or within 2,000 feet of the Property that would cause the Property or any part of it to be designated as "hazardous waste property" or "border zone property," to the extent applicable, under the current or former provisions of Health and Safety Code § § 25220 et seq., and any regulation adopted in accordance with those sections; (k) that the Trustor's use of the Property shall be residential housing; (1) to Trustor's knowledge, any written disclosure submitted by or on behalf of Trustor to Beneficiary concerning any Release or threatened Release, past or present compliance by Trustor or other person of any Hazardous Substance Laws applicable to the Property, the past and present use and occupancy of the Property, and any environmental concerns relating to the Property, was true and complete in all; material respects when submitted and continues to be true and complete in all material respects as of the date of this Deed of Trust. As used in this Section 5.1, phrases such as "to Trustor's knowledge," shall refer to the actual knowledge of the Trustor, and its agents and directors, without duty of inquiry or investigation other than the ordering of a Phase I Environmental Assessment as required pursuant to the Loan Agreement. 5.2. Covenants of Trustor. Trustor agrees, except in the ordinary course of business and in strict compliance with all applicable Hazardous Substance Laws, as follows: 19 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 107 3/7/2023 EXHIBIT 3 (a) not to cause or permit the property to be used as a site for the use, generation, manufacture, storage, treatment, Release, discharge, disposal, transportation, or presence of any Hazardous Substance in violation of applicable Hazardous Materials Substance Laws; (b) not to cause, contribute to, permit, or acquiesce in any Release or threatened Release; (c) not to change or modify the use of the Property without the prior written consent of Beneficiary; (d) to comply with and to use commercially reasonable efforts to cause the Property and every invitee or occupant of the Property to comply with all Hazardous Substance Laws; (e) to promptly upon Trustor's discovery thereof (other than Hazardous Substances that were known prior to Loan closing as disclosed in the Environmental Reports), notify Beneficiary in writing of and to provide Beneficiary with a reasonably detailed description of: Laws; (1) any noncompliance of the Property with any Hazardous Substance (2) any Hazardous Substance Claim; (3) any Release or Threatened Release; (4) the discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would cause the Property or any part of it to be designated as "hazardous waste property" or "border zone property" under the provisions of former Health and Safety Code §§ 25220 et seq., and any regulation adopted in accordance with that section; (t) if Trustor discovers a Release or the presence of any Hazardous Substance on or about the Property in violation of any Hazardous Substance Law, to: (1) notify Beneficiary of that discovery together with a reasonably detailed description; (2) engage promptly after a request by Beneficiary, a qualified environmental engineer reasonably satisfactory to Beneficiary to investigate these matters and prepare and submit to Beneficiary a written report containing the findings and conclusions resulting from that investigation, all at the sole expense of Trustor, and (3) if the Release of Hazardous Substances results in (i) injury to any person, (ii) injury to or contamination of the Property (or a portion thereof), or (iii) injury to or contamination of any real or personal property wherever situated take, at Trustor's sole expense, all actions required by applicable Hazardous Substances Laws to remedy, repair, clean up, or 20 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 108 3/7/2023 EXHIBIT 3 detoxify any Release of Hazardous Substance, including, but not limited to, any remedial action required by any applicable Hazardous Substance Laws or any judgment, consent, decree, settlement, or compromise in respect of any Hazardous Substance Claims, these actions to be performed: A. in accordance with applicable Hazardous Substance Laws, B. in a good and proper manner, C. under the supervision of a qualified environmental engineer approved in writing by Beneficiary (such approval not to be unreasonably withheld or delayed), D. in accordance with plans and specifications for these actions approved in writing by Beneficiary (such approval not to be unreasonably withheld or delayed), and E. using licensed and insured qualified contractors approved in writing by Beneficiary (such approval not to be unreasonably withheld or delayed); (g) promptly furnish to Beneficiary copies of all written communications received by Trustor from any governmental authority or other person or given by Trustor to any person and any other information Beneficiary may reasonably request concerning any Release, threatened Release, Hazardous Substance Claim, or the discovery of any Hazardous Substance on or about the Property in violation of any applicable Hazardous Substance Law; and (h) keep Beneficiary generally informed regarding any Release, threatened Release, Hazardous Substance Claim, or the discovery of any Hazardous Substance on or about the Property in violation of any Hazardous Substance Law. 5.3. Rights of Beneficiary. Upon Beneficiary's reasonable belief of the existence of a past or present Release or threatened Release not previously disclosed by Trustor in the Environmental Reports or in connection with the making of the Loan or the execution of this Deed of Trust, or upon Beneficiary's reasonable belief that Trustor has failed to comply with any environmental provision of this Deed of Trust or any other Loan Document and upon not less than 72 hours' prior written notice (except in the case of an emergency) to Trustor, Beneficiary or its representatives, employees, and agents, may from time to time and at all reasonable times during regular business hours (or at any time in the case of an emergency) enter and inspect the Property and every part of it (including all samples of building materials, soil, and groundwater and all books, records, and files of Trustor relating to the Property) and perform those acts and things that Beneficiary_reasonably deems necessary to inspect, investigate, assess, and protect the Security of this Deed of Trust, for the purpose of determining: (a) the existence, location, nature, and magnitude of any past or present Release or threatened Release, 21 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 109 3/7/2023 EXHIBIT 3 (b) the presence of any Hazardous Substances on or about the Property in violation of any applicable Hazardous Substance Law, and (c) the compliance by Trustor of every environmental provision of this Deed of Trust and every other Loan Document. In furtherance of the purposes above, without limitation of any of its other rights, Beneficiary may: (1) obtain a court order to enforce Beneficiary's right to enter and inspect the Property under Civil Code § 2929.5; and (2) have a receiver appointed under Code of Civil Procedure § 564 to enforce Beneficiary's right to enter and inspect the Property for the purpose set forth above. All reasonable costs and expenses incurred by Beneficiary with respect to the audits, tests, inspections, and examinations that Beneficiary or its agents, representatives, or employees may conduct, including the reasonable fees of the engineers, laboratories, contractors, consultants, and attorneys, will be paid by Trustor. All reasonable costs or expenses incurred by Trustee and Beneficiary pursuant to this Section (including without limitation court costs, reasonable consultant's fees, and reasonable attorney fees, whether incurred in litigation and whether before or after judgment) will bear interest at the Agreed Rate from the date they are incurred until those sums have been paid in full. Except as provided by law, any inspections or tests made by Beneficiary or its representatives, employees, and agents will be for Beneficiary's purposes only and will not be construed to create any responsibility or liability on the part of Beneficiary to Trustor or to any other person. Beneficiary will have the right, but not the obligation, to communicate with any governmental authority regarding any fact or reasonable belief of Beneficiary that constitutes or could constitute a breach of any of Trustor's obligations under any environmental provision contained in this Deed of Trust or any Loan Document. 5.4. Waiver and Indemnity. Trustor: (a) releases and waives any future claims against Beneficiary for indemnity or contribution in the event Trustor becomes liable for cleanup or other costs under any Hazardous Substance Laws or under any Hazardous Substance Claim_except to the extent such liability arises out of the gross negligence or willful misconduct or Beneficiary; (b) following an Event of Default by Trustor with respect to Trustor's environmental covenants hereunder, agrees to reimburse Beneficiary, on demand, for all costs and expenses incurred by Beneficiary in connection with any review, approval, consent, or inspection relating to the environmental provisions in this Deed of Trust together with interest, after demand, at the Agreed Rate; and (c) agrees to indemnify, defend, and hold Beneficiary and Trustee harmless from all losses, costs, claims, damages, penalties, liabilities, causes of action, judgments, court costs, reasonable attorney fees and other reasonable legal expenses, costs of evidence of title, 22 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 —110 3/7/2023 EXHIBIT 3 cost of evidence of value, and other expenses (collectively, "Expenses"), including, but not limited to, any Expenses incurred or accruing after the foreclosure of the lien of this Deed of Trust, which either may suffer or incur and which directly or indirectly arises out of or is in any way connected with the breach of any environmental provision either in this Deed of Trust or in any Loan Document or as a consequence of any Release or threatened Release or the presence, use, generation, manufacture, storage, disposal, transportation, Release, or threatened Release of any Hazardous Substance on or about the Property (but excluding any Existing Hazardous Materials), including the soils and groundwater, caused or permitted by Trustor, including, without limitation, to the extent required by an environmental agency with jurisdiction over the Property, the cost of any required or necessary repair, cleanup, remedy, or detoxification of any hazardous Substance and the preparation of any closure, remedial action, or other required plans. Trustor's obligations will survive the satisfaction, release, or cancellation of the indebtedness, the release and reconveyance or partial release and reconveyance of this Deed of Trust, and the foreclosure of the lien of this Deed of Trust or deed in lieu of the Deed of Trust, for any liability accruing or arising prior to such satisfaction, release, or cancellation of the indebtedness, the release and reconveyance or partial release and reconveyance of this Deed of Trust, and the foreclosure of the lien of this Deed of Trust or deed in lieu of the Deed of Trust. 5.5. Additional Covenants of Trustor. (a) Trustor and Beneficiary agree that: (1) this Section is intended as Beneficiary's written request for information and Trustor's written response concerning the environmental condition of the Property as provided by Code of Civil Procedure § 726.5; and (2) each representation, warranty, covenant, or indemnity made by Trustor in this Section or in any other provision of this Deed of Trust or any Loan Document that relates to the environmental condition of the Property is intended by Trustor and Beneficiary to be an "environmental provision" for purposes of Code of Civil Procedure § 736 and will survive the payment of the indebtedness and the termination or expiration of this Deed of Trust and will not be affected by Beneficiary's acquisition of any interest in the Property, whether by full credit bid at foreclosure, deed in lieu of that, or otherwise. If there is any transfer of any portion of Trustor's interest in the Property, any successor -in -interest to Trustor agrees by its succession to that interest that the written request made pursuant to this Section will be deemed remade to the successor -in -interest without any further or additional action on the part of Beneficiary and that by assuming the debt secured by this Deed of Trust or by accepting the interest of Trustor subject to the lien of this Deed of Trust, the successor remakes each of the representations and warranties in this Deed of Trust and agrees to be bound by each covenant in this Deed of Trust, including, but not limited to, any indemnity provision. (b) Even though Trustor may have provided Beneficiary with an environmental site assessment or other environmental report together with other relevant information regarding the environmental condition of the Property, Trustor acknowledges and agrees that with the exception of the Environmental Reports, Beneficiary is not accepting the Property as security for the Loan based on that assessment, report, or information. Rather, Beneficiary has relied on the representations and warranties of Trustor in this Deed of Trust, and 23 W1SEPlace Permanent Supportive Housing City i y ounce nzst 13 —111 3/7/2023 EXHIBIT 3 other than with respect to the Environmental Reports, Beneficiary is not waiving any of its rights and remedies in the environmental provisions of this Deed of Trust or any other Loan Document. (c) Beneficiary or its agents, representatives, and employees may seek a judgment that Trustor has breached its covenants, representations, or warranties in Section 2 of this Deed of Trust or any other covenants, representations, or warranties that are deemed to be "environmental provisions" pursuant to Code of Civil Procedure § 736 (each an "Environmental Provision"), by commencing and maintaining an action or actions in any court of competent jurisdiction pursuant to Code of Civil Procedure § 736, whether commenced prior to or after foreclosure of the lien of this Deed of Trust. Beneficiary or its agents, representatives, and employees may also seek an injunction to cause Trustor to abate any action in violation of any Environmental Provision and may seek the recovery of all costs, damages, expenses, fees, penalties, fines, judgments, indemnification payments to third parties, and other out-of-pocket costs or expenses actually incurred by Beneficiary (collectively, "Environmental Costs") incurred or advanced by Beneficiary relating to the cleanup, remedy, or other response action required by any applicable Hazardous Substances Law or any Hazardous Substance Claim. It will be conclusively presumed between Beneficiary and Trustor that all Environmental Costs incurred or advanced by Beneficiary relating to the cleanup, remedy, or other response action of or to the Property were made by Beneficiary in good faith. All reasonable Environmental Costs incurred by Beneficiary under this Section (including without limitation court costs, reasonable consultant fees, and reasonable attorney fees, whether incurred in litigation and whether before or after judgment) will bear interest at the Agreed Rate from the date of expenditure until those sums have been paid in full. Beneficiary will be entitled to bid, at any trustee's or foreclosure sale of the Property, the amount of the costs, expenses, and interest in addition to the amount of other indebtedness. (d) Beneficiary or its agents, representatives, and employees may waive its lien against the Property or any portion of it, including but not limited to the Improvements, to the extent that the Property or any portion of the Security is found to be environmentally impaired in accordance with Code of Civil Procedure § 726.5, and to exercise all rights and remedies of an unsecured creditor against Trustor and all of Trustor's assets and property for the recovery of any deficiency and Environmental Costs, including, but not limited to, seeking an attachment order under Code of Civil Procedure § 483.010. As between Beneficiary and Trustor, for purposes of Code of Civil Procedure § 726.5, Trustor will have the burden of proving that Trustor or any related party (or any affiliate or agent of Trustor or any related party) was not in any way negligent in permitting the Release or threatened Release of the Hazardous Substances. Section 6. ASSIGNMENTS OF RENTS, ISSUES AND PROFITS 6.1. Assignment. Trustor hereby absolutely, irrevocably and unconditionally assigns to Beneficiary, as security for the Obligations, all rents, profits, deposits, royalties, income and other issues and similar benefits derived from the Security, including Leases, as defined below (collectively, the "Rents"), and hereby confers upon Beneficiary the right, power and authority to collect such Rents. Trustor irrevocably appoints Beneficiary its true and lawful attorney -in -fact, at the option 24 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 —112 3/7/2023 EXHIBIT 3 of Beneficiary, at any time and from time to time, to demand, receive and enforce payment, to give receipts, releases and satisfactions, and to sue, in its name or in the name of Trustor, for all Rents, and apply the same to the Obligations secured hereby; provided, however, that Trustor shall have the right, as between Trustor and Beneficiary, to collect the Rents but not more than one (1) month in advance of the date due unless the written approval of Beneficiary has first been obtained, with the exception of security deposits and "first and last months' rent" collected from tenants in connection with Trustor's ordinary leasing of residential apartments within the Property), and to retain and enjoy the same, so long as an Event of Default shall not have occurred hereunder and be continuing. 6.2. Collection Upon Default. While any Event of Default remains uncured, Beneficiary may, at any time without notice, either in person, by agent or by a receiver appointed by a court, and without regard to the adequacy of any security for the Obligations hereby secured, enter upon and take possession of the Security, or any part thereof, and, with or without taking possession of the Security or any part thereof, in its own name sue for or otherwise collect such Rents (including those past due and unpaid, and all prepaid Rents and all other monies which may have been or may hereafter be deposited with Trustor by any tenant to secure the payment of any Rent or for any services thereafter to be rendered by Trustor for any other obligation of any tenant to Trustor arising under any lease, and Trustor agrees that, upon the occurrence of any Event or Default hereunder, Trustor shall promptly deliver all Rents and other moneys to Beneficiary), and Beneficiary may apply the same, less costs and expenses of operation and collection, including, without limitation, reasonable attorneys fees, whether or not suit is brought or prosecuted to judgment, against any indebtedness or Obligation of Trustor secured hereby, and in such order as Beneficiary may determine notwithstanding that said indebtedness or the performance of said Obligation may not then be due. The collection of Rents, or the entering upon and taking possession of the Security, or the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done in response to such default or pursuant to such notice of default or be deemed or construed to make Beneficiary a mortgagee - in -possession of the Security or any portion thereof. 6.3. Further Assignments. Upon demand of Beneficiary, Trustor shall, from time to time hereafter, execute, and deliver to Beneficiary recordable assignments of Trustor's interest in any or all leases, subleases, contracts, rights, licenses and permits now or hereafter affecting the Security or any portion thereof. Such assignments shall be made by instruments in form and substance reasonably satisfactory to Beneficiary; provided, however, that no such assignment shall be construed as imposing upon Beneficiary any obligation with respect thereto. Beneficiary may, at its option, exercise its rights hereunder or under any such specific assignment and such exercise shall not constitute a waiver of any right hereunder or under any such specific assignment. Section 7. ASSIGNMENTS OF LEASES 7.1. Assignment. Trustor hereby absolutely, irrevocably and unconditionally assigns to Beneficiary, as security for the Obligations all leases, licenses and other rental agreements of 25 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 —113 3/7/2023 EXHIBIT 3 any kind relating to the use or occupancy of the Property and any portion thereof, which are currently in effect for the Property or are entered into on or after the date of this Deed of Trust (collectively, the "Leases" or individually a "Lease"). The Leases shall include (i) all guarantees of and security for lessees' performance under any and all Leases and (ii) all amendments, extensions, renewals or modifications thereto which are permitted hereunder. 7.2 License. This Deed of Trust shall constitute a present and absolute assignment to the Beneficiary. However, Trustor shall have the right under a license (the "License") granted hereby to collect and use at the time of, but not prior to, the date provided for payment, all of the Rent and to retain and use the same in accordance with the terms and provisions of the Note, Deed of Trust, and other Loan Documents; provided, that such License shall be revoked automatically upon the occurrence of an Event of Default as defined below. The Beneficiary shall not revoke the License prior to an Event of Default. 7.3 Covenants. 1. Trustor covenants and agrees as follows: (a) at Trustor's sole cost to: (i) perform the duties and obligations of lessor under the Leases and to enforce performance by the lessees of the obligations contained in the Leases; (ii) enforce all remedies available to Trustor in case of default by the lessees under any of the Leases and prosecute and defend any action, arbitration or other controversy relating to any of the Leases or to Trustor's interest in any of the Leases in the ordinary course of Trustor's business; (iii) give the Beneficiary prompt notice of any material default by Trustor which occurs with respect to any of the Leases, and complete copies of any notice of default; (iv) exercise Trustor's best efforts to keep all portions of the Property designated as lease property leased at all times; (v) upon the Beneficiary's written request, deliver to the Beneficiary a fully executed photocopy and a counterpart original of each and every Lease; (vi) execute and record such additional assignments of any Lease, in form and substance reasonably acceptable to the Beneficiary, as the Beneficiary may request; and (vii) execute and deliver such additional documents and instruments as the Beneficiary may reasonably request from time to time to carry out the purpose of this Deed of Trust; and (b) except with the Beneficiary's prior written consent, which consent will not be arbitrarily withheld, not to either orally or in writing: (i) enter into any Leases after the date of this Deed of Trust which are not in compliance with the applicable provisions of the Loan Agreement, Regulatory Agreement and other Loan Documents; (ii) execute any other assignment relating to any of the Leases or collect the rent in advance, other than to collect one (1) month in advance of the time when it becomes due; (iii) terminate, modify or amend any of the terms of the Leases or in any manner release or discharge any lessee from any obligations thereunder; (iv) consent to any assignment or subletting by any lessee of the Leases; or (v) do or pen -nit anything to be done to impair the validity or enforceability of any of the Leases. Any such attempted action in violation of the provisions of this paragraph shall be null and void. (c) Representations and Warranties. Trustor hereby represents and warrants (1) Trustor is and will be the sole owner of lessor's interest in each Lease; 26 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 —114 3/7/2023 EXHIBIT 3 (2) each Lease, when executed and delivered, will be valid and enforceable in accordance with its terms, will constitute the entire agreement between the lessee named therein and Trustor, and there will be no amendments, written or oral, to such agreements except in the ordinary course of business, without the Lender's prior written consent; and (3) none of the lessor's interests in, and no Rent under, any of the Leases has been transferred or assigned except as expressly provided for in the Loan Agreement; and (4) Trustor is the owner of the leasehold interest in the Property under the Ground Lease, and has good title to the Leases, any contracts of sale that exist or may be made relating to the sale of a portion of the Property, and any Rent, money, rights or claims under the Leases or contracts of sale, and no other person firm, or corporation has any right, title, or interest in them. Section 8. EVENTS OF DEFAULT 8.1. Events of Default. Each of the following shall constitute Events of Default: (1) the occurrence of an "Event of Default" as defined in the Loan Agreement or as defined in any Debt Instrument; or (2) the failure to make any payment or perform any of Trustor's other Obligations now or hereafter secured by this Deed of Trust (subject to written notice and expiration of any applicable cure period) and if no cure period is provided, a cure period equal to those granted to the Limited Partner under Section 8.12. 8.2. Acceleration of Maturity. If an Event of Default shall have occurred and be continuing, then at the option of the Beneficiary, the amount of any payment related to the Event of Default, the unpaid Principal of the Note and any other indebtedness and other Obligations secured hereby shall immediately become due and payable without presentment, protest notice or demand, all of which are hereby expressly waived, upon written notice by the Beneficiary to the Trustor and no omission on the part of the Beneficiary to exercise such option when entitled to do so shall be construed as a waiver of such right. 8.3. The Beneficiary's Right to Enter and Take Possession. If an Event of Default shall have occurred and be continuing, the Beneficiary may: (a) Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it reasonably deems necessary to preserve the value or marketability of the Security, or part thereof or interest therein, increase the income therefrom or protect the security thereof and, with or without taping possession of the Security, sue for or otherwise collect the Rents, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection including without limitation reasonable attorneys fees, against any indebtedness secured hereby, all in such order as Beneficiary may determine. The entering upon and taking possession of the Security the collection of such Rents and the application thereof as aforesaid shall not cure or waive any 27 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 —115 3/7/2023 EXHIBIT 3 Event of Default or notice of default hereunder or invalidate any act done in response to such Event of Default or pursuant to such notice of default, and, notwithstanding the continuance in possession of the Security, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any Event of Default, including the right to exercise the power of sale; (b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof, (c) Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor's interest in the Security to be sold, which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of Orange County; or (d) Exercise all other rights and remedies provided herein, in the instruments by which the Grantor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the Obligations secured hereby, or provided by law. 8.4. Foreclosure by Power of Sale. Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust, the Loan Agreement and the Note which is secured hereby (and the deposit of which shall be deemed to constitute evidence that the unpaid Principal amount of the Note is immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. (a) Upon receipt of such notice from the Beneficiary ("Notice of Default"), Trustee shall cause to be recorded, published and delivered to Grantor such Notice of Default and election to sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Default and after notice of sale having been given as required by law ("Notice of Sale"), sell the Security, at the time and place of sale fixed by it in said Notice of Sale, whether as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine unless specified otherwise to the Trustor according to California Civil Code Section 2924g(b), at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed or any matters of facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale. (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of. (1) the unpaid Principal amount of the Note; (2) all other sums then secured hereby; and (3) the remainder, if any, to Trustor. 28 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 —116 3/7/2023 EXHIBIT 3 (c) Trustee may postpone sale of all or any portion of the Security by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. 8.5. Receiver If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Grantor or anyone claiming under the Security, and without regard to the then value of the Security or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Security, unless such receivership is sooner terminated. 8.6. Application of Funds After Default. Except as otherwise herein provided, upon the occurrence of an Event of Default hereunder, and while such Event of Default remains uncured, Beneficiary may, at any time without notice, apply any or all sums or amounts received and held by Beneficiary to pay insurance premiums, Impositions, or either of them, or as Rents or income of the Security, or as insurance or condemnation proceeds, and all other sums or amounts received by Beneficiary from or on account of Grantor or the Security, or otherwise, against any indebtedness or Obligation of the Grantor secured hereby, in such manner and order as Beneficiary may elect. The receipt, use or application of any such sum or amount shall not be construed to affect the maturity of any indebtedness secured by this Deed of Trust, or any of the rights or powers of Beneficiary under the terms of the Loan Agreement, this Deed of Trust or the Note, or any of the Obligations of Grantor or any guarantor under any other instruments or documents now or hereafter delivered in connection with the Loan Agreement or to cure or waive any default or notice of default under the Loan Agreement or any such instruments or documents; or to invalidate any act of Trustee or Beneficiary. 8.7. Costs of Enforcement. If any Event of Default occurs, Beneficiary and Trustee, and each of them, may employ an attorney or attorneys to protect their rights hereunder. Trustor promises to pay to Beneficiary, on demand, the reasonable fees and expenses of such attorneys and all other reasonable costs of enforcing the Obligations secured hereby, including, without limitation, recording fees, the expense of a trustee, sale guarantee, Trustee's fees and expenses, receivers fees and expenses, and all other reasonable expenses, of whatever kind or nature, incurred by Beneficiary and Trustee, and each of them, in connection with the enforcement of the Obligations secured hereby, whether or not such enforcement includes the filing of a lawsuit. Until paid, such sums shall be secured hereby and shall bear interest at the Agreed Rate. 29 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 —117 3/7/2023 EXHIBIT 3 8.8. Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. 8.9. No Waiver. (a) No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Event of Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a waiver of any such Event of Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. No consent or waiver, expressed or implied, by the Beneficiary to or any breach by the Trustor in the performance of the Obligations hereunder shall be deemed or construed to be a consent to or waiver of Obligations of the Grantor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any rights, power or remedies consequent on any Event of Default by the Grantor. (b) If the Beneficiary (1) grants forbearance or an extension of time for the payment of any sums secured hereby, (2) takes other or additional security or the payment of any sums secured hereby, (3) waives or does not exercise any right granted in the Loan Agreement, (4) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements in the Loan Agreement, (5) consents to the granting of any easement or other right affecting the Security, or (6) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Grantor or any subsequent purchaser of the Security or any part thereof, or any maker, co- signer, endorser, surety or guarantor (unless expressly released); nor shall any such act or omission preclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in any Event of Default then made or of any subsequent Event of Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby. 8.10. Suits to Protect the Security. The Beneficiary shall have power to: (1) institute and maintain such suits and proceedings as it may in its reasonable discretion deem expedient to prevent any impairment of the Security and the rights of the Beneficiary as may be unlawful or any violation of this Deed of Trust, (2) preserve or protect its interest (as described in this Deed of Trust) in the Security, and (3) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rule or order would impair the Security thereunder or be prejudicial to the interest of the Beneficiary. 30 WISEPlace Permanent Supportive Housing City i y ounce rust 13 —118 3/7/2023 EXHIBIT 3 8.11. Trustee May File Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Grantor, its creditors or its property, the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as are necessary in order to have the claims of the Beneficiary allowed in such proceedings and for any additional amount which may become due and payable by the Trustor hereunder after such date. 8.12. Limited Partner Cure Rights. Notwithstanding anything to the contrary in this Deed of Trust, Beneficiary shall give the Limited Partner of Trustor the following notice at the address provided in Section 9.3(b) and cure rights: (a) Beneficiary will give the Limited Partner a copy of any notice (at the Limited Partner's address provided in the Loan Agreement or as otherwise provided by written notice from Trustor to Beneficiary; (b) Beneficiary will give the Limited Partner thirty (30) days after the Limited Partner's receipt of such notice to cure a non-payment of any sum due under this Deed of Trust; (c) Beneficiary will give the Limited Partner sixty (60) days after the Limited Partner's receipt of such notice to cure any other default under this Deed of Trust; (d) If a non -monetary default is incapable of being cured within sixty (60) days, Beneficiary will give the Limited Partner such additional time as is reasonably necessary to cure such default provided the Limited Partner has commenced to cure such default and is diligently proceeding to cure such default through the end of such period; and (e) If the Limited Partner makes any such payment or otherwise cures such default, the Beneficiary will accept such action as curing such default as if such payment or cure were made by Trustor. Section 9. MISCELLANEOUS 9.1. Amendments. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by Beneficiary and Trustor. 9.2. Reconveyance by Trustee. Upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey, without warranty, the Security to Trustor, or to the person or persons legally entitled thereto. 31 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 —119 3/7/2023 EXHIBIT 3 9.3. Notices. (a) If at any time after the execution of this Deed of Trust it shall become necessary or convenient for one of the parties hereto to serve any notice, demand or communication upon the other party, such notice, demand or communication shall be in writing and shall be served personally or by depositing the same in the registered United States mail, return receipt requested, postage prepaid and: (1) if intended for Beneficiary shall be addressed to: City of Santa Ana Executive Director (CDA) 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 (2) if intended for Trustors shall be addressed to: During Construction: North Broadway Housing Partners LP c/o 17701 Cowan Ave., Suite 200 Irvine, CA 92614 Attention: Chief Executive Officer Following construction: North Broadway Housing Partners LP c/o Jamboree Housing Corporation 17701 Cowan Ave., Suite 200 Irvine, CA 92614 Attention: Asset Management With a copy to: Rutan & Tucker, LLP 18575 Jamboree Road, 9th Floor Irvine, CA 92612 Attention: Patrick D. McCalla Any notice, demand or communication shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed in the manner herein specified, on the delivery date or date delivery is refused by the addressee, as shown on the return receipt. Either party may change its address at any time by giving written notice of such change to Beneficiary or Grantor as the case may be, in the manner provided herein, at least ten (10) days prior to the date such change is desired to be effective. 32 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 120 3/7/2023 EXHIBIT 3 9.4. Successors and Joint Trustors. All Obligations of Grantor secured by this Deed of Trust, shall also apply to and bind any permitted transferee or successors in interest. Where the terms of the Deed of Trust have the effect of creating an Obligation of the Grantor and a transferee, such Obligation shall be deemed to be a joint and several Obligation of the Grantor and such transferee. Where Grantor is more than one entity or person, all Obligations of Trustor shall be deemed to be a joint and several Obligation of each and every entity and person comprising Trustor. 9.5. Captions. The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Deed of Trust. 9.6. Invalidity of Certain Provisions. Every provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or other body of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid or applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust. 9.7. Governing Law and Venue. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of California. In the event of any legal action to enforce or interpret this Deed of Trust, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. 9.8. Gender and Number. In this Deed of Trust the singular shall include the plural and the masculine shall include the feminine and neuter and vice versa, if the context so requires. 9.9. Deed of Trust, Mortgage. Any reference in this Deed of Trust to a mortgage shall also refer to a deed of trust and any reference to a deed of trust shall also refer to a mortgage. 33 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 121 3/7/2023 EXHIBIT 3 9.10. Actions. Trustor agrees to appear in and defend any action or proceeding purporting to affect the Security. 9.11. Substitution of Trustee. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary, containing reference to this Deed of Trust and its place of record, which, when duly recorded in the proper office of the City or counties in which the Security is situated, shall be conclusive proof of proper appointment of the successor trustee. 9.12. Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action of proceedings in which Grantor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 9.13. Conflicts. If any term or provision of this Deed of Trust conflicts with any term of provision of the Loan Agreement, the term or provision of the Loan Agreement shall control to the extent of such conflict. 9.14. Statements by Trustor. Trustor shall, at its cost, within ten (10) days after notice thereof from Beneficiary, deliver to Beneficiary a written statement setting forth to the best of its knowledge and information, the amounts then unpaid and secured by this Deed of Trust and stating whether Trustor is aware of any offset or defense against such amounts. 9.15. Beneficiary Statements. For any statement or accounting requested by Grantoror any other entitled person pursuant to Section 2943 or Section 2954 of the California Civil Code or pursuant to any other provision of applicable law, or for any other document or instrument furnished to Grantorby Beneficiary, Beneficiary may charge the maximum amount permitted by law at the time of the request therefor, or if there be no such maximum, then in accordance with Beneficiary's customary charges therefor or the actual cost to Beneficiary therefor, whichever is greater. 34 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 122 3/7/2023 EXHIBIT 3 9.16. Statute of Limitations. Except insofar as now or hereafter prohibited by law, the right to plead, use or assert any statute of limitations as a plea or defense or bar of any bind, or for any purpose, to any debt, demand or obligation secured or to be secured hereby, or to any complaint or other pleading or proceeding filed, instituted or maintained for the purpose of enforcing this Deed of Trust or any rights hereunder, is hereby waived by Grantor. 9.17. Trust Irrevocable; No Offset. The Trust created hereby is irrevocable by Trustor. No offset or claim that Grantornow has or may in the future have against Beneficiary shall relieve Trustor from paying the indebtedness or performing any other Obligation contained herein or secured hereby. 9.18. Corrections. Grantorshall, upon request of Beneficiary, promptly correct any defect, error or omission which may be discovered in the contents hereof or in the execution or acknowledgment hereof, and will execute, acknowledge and deliver such further instruments and do such further acts as may be necessary or as may be reasonably requested by Beneficiary to carry out more effectively the purposes thereof, to subject to, the lien and security interest hereby created any of Grantor's properties, rights or interests covered or intended to be covered hereby, or to perfect and maintain such lien and security interest. 9.19. Further Assurance. Grantor, Beneficiary and Trustee agree to do or cause to be done such further acts and things and to execute and deliver or to cause to be executed and delivered such additional assignments, agreements, powers and instruments, as any of them may reasonably require to keep valid and effective the charges and liens hereof, to carry into effect the purposes of this Deed of Trust or to better assure and confirm unto any of them their rights, powers and remedies hereunder; and, upon request by Beneficiary, shall supply evidence of fulfillment of each of the covenants herein contained concerning which a request for such evidence has been made. 9.20. Waiver of Jury Trial. Unless prohibited by Federal, State or local laws, each party acknowledges that it is aware of and has had the advice of counsel of its choice with respect to its rights to trial by jury, and each party, for itself and its successors and assigns, does hereby expressly and knowingly waive and release all such rights to trial by jury in any action, proceeding or counterclaim brought by any party hereto against the other (and/or against its officers, directors, employees, agents, or subsidiary or affiliated entities) on or with regard to any matters whatsoever arising out of or in any way connected with this Deed of Trust and/or any claim of injury or damage to the fullest extent permitted by applicable law. 35 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 123 3/7/2023 EXHIBIT 3 9.21. Tax Credits. Beneficiary acknowledges that Trustor and the California Tax Credit Allocation Committee have or intend to enter into an extended use agreement pursuant to Section 42(h) of the Internal Revenue Code ("Extended Use Agreement") which will be recorded against the Property. Beneficiary acknowledges that, in the event of a foreclosure of its interest under this Deed of Trust or delivery by Trustor of a deed in lieu thereof (collectively, a "Foreclosure"), pursuant to Section 42(h)(6)(E)(ii) of the Internal Revenue Code for a period of three (3) years from the date of Foreclosure, with respect to any unit that had been regulated by the Extended Use Agreement, (i) none of the eligible tenants occupying those units at the time of Foreclosure may be evicted or their tenancy terminated (other than for good cause), (ii) nor may the rent of any such eligible tenant be increased except as otherwise permitted under Section 42 of the Internal Revenue Code.. Section 10. WAIVERS 10.1. Waivers and Related Matters. (a) To the fullest extent allowed by law, Grantorhereby waives: (i) presentment, demand, protest, notice of dishonor, notice of protest and all other notices and demands of every kind, and all suretyship defenses of every kind that would otherwise be available in connection with this Deed of Trust, and (ii) all rights of redemption, valuation, appraisement, stay of executive, notice of election to mature or declare due the whole of the Obligation and marshaling in the event of foreclosure of the liens hereby created. (b) Grantorhereby authorizes Beneficiary, at any time and from time to time without notice and without affecting this Deed of Trust in any way, to: (i) accept new or additional instruments, documents, agreements, security or guaranties in connection with all or any part of the Obligations; (ii) accept partial payments on the Obligations; and (iii) waive, release, reconvey, terminate, abandon, subordinate, exchange, substitute, transfer, compound, compromise, liquidate and enforce all or any part of the Obligations and any security or guaranties therefor, and apply any such security and direct the order or manner of sale thereof and bid and purchase at any such sale. (c) Grantorhereby waives any right to require Beneficiary to (i) proceed against any person; (ii) proceed or exhaust any collateral held from any person; or (iii) pursue any other remedy in Beneficiary's power. Upon the occurrence of any Event of Default, Beneficiary is hereby expressly given the right, at its option, to proceed in the enforcement of this Deed of Trust, independently of any other remedy or security Beneficiary may at any time hold in connection with the Obligations, and Beneficiary shall not in any way be obligated or otherwise required to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce this Deed of Trust. (d) Grantorhereby waives any defense arising by reason o£ (i) any disability or other defense of Trustor or any other person; (ii) the cessation from any cause whatsoever, other than full payment and performance of the Obligations, of the Obligations of Trustor or any other person; or (iii) any act or omission by Beneficiary which directly or indirectly results in or 36 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 124 3/7/2023 EXHIBIT 3 aids in the discharge or release of Grantor, or any other person, any Obligation, or any collateral by operation of law or otherwise. The waivers set forth in this Section 10 shall also apply, to the fullest extent permitted by law to all other real and/or personal property of Grantornow or hereafter assigned to Beneficiary as security for the Obligations. Grantorwarrants and agrees that each, of the waivers set forth above are made with Grantor's full knowledge of their significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which Trustor otherwise may have against Beneficiary or others, or against collateral, and that under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any of the waivers are determined to be contrary to any applicable law or public policy, such waivers shall be effective to the maximum extent permitted by law. {signatures on following page) 37 W1SEPlace Permanent Supportive Housing City i y ounce rust 13 — 125 3/7/2023 EXHIBIT 3 IN WITNESS WHEREOF, Trustor has executed this City Deed of Trust as of the date first written above. TRUSTOR: NORTH BROADWAY HOUSING PARTNERS LP, a California limited partnership By: JHC-North Broadway LLC, a California limited liability company, its managing general partner By: Jamboree Housing Corporation, a California non-profit public benefit corporation, its managing member By:_ NamE Title: W1SEPlace Pennanent Supportive Housing itoRunce Icedo Est y 13 — 126 3/7/2023 EXHIBIT 3 GROUND LESSOR JOINDER THE UNDERSIGNED ("Ground Lessor") is joining in the execution of this Deed of Trust to evidence the subordination of its fee interest in the Property to the lien of this Deed of Trust, and Ground Lessor's consent to the Affordability Restrictions on Transfer of Property ("Restrictions") encumbering all right, title, and interest on the Property; provided that, by accepting delivery of this Deed of Trust, Beneficiary, on behalf of itself and its successors, and assigns and on behalf of all other parties who, pursuant to the terms of this Deed of Trust, shall be entitled to the benefit thereof, shall be deemed to have agreed that: (i) Ground Lessor's execution of this joinder to the Deed of Trust shall not give rise to any personal liability or obligation under any of the Loan Documents on the part of the Ground Lessor, its successors and assigns or any present or future officer, director, employee, trustee, member, agent or advisor of any of the foregoing, and (ii) all notices of default hereunder and under the other Loan Documents to the Trustor shall also be given to the Ground Lessor, and the Ground Lessor shall have the right to cure any such default on the terms and conditions set forth in the applicable Loan Document and Beneficiary shall accept or reject such cure on the same basis as if made by the Trustor. The address for notices to Ground Lessor is: WISEPlace 1411 N. Broadway Santa Ana, CA 92706 Attn: Executive Director Dated: , 2023 WISEPlace, a California nonprofit public benefit corporation Brateil Aghasi Executive Director WISEPlace Permanent Supportive Housing itoRunce Icedo rust y 13 — 127 3/7/2023 EXHIBIT 3 EXHIBIT A LEGAL DESCRIPTION WlSEPlace Permanent Supportive Housing sty ounce Iced o rust 13 — 128 3/7/2023 EXHIBIT 3 All that certain real property situated in the County of Orange, State of California, described as follows: COMMENCING AT THE CENTERLINE INTERSECTION OF 15TH STREET AND SYCAMORE STREET AS SHOWN ON THE RECORD OF SURVEY NO 85-1067, RECORDED IN BOOK 111, PAGE 38, OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, SAID CENTERLINE OF SYCAMORE STREET BEING DESCRIBED IN THAT CERTAIN FINAL JUDGMENT, SUPERIOR COURT CASE NO. 23280, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 8, 1929 IN BOOK 227, PAGE 401 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, CALIFORNIA; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET SOUTH 000 14' 46" WEST, 90 FEET AND SOUTH 00° 04' 48" EAST, 213.42 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID CENTERLINE NORTH 890 58' 21" WEST, 312.17 FEET TO THE CENTERLINE OF BROADWAY, THENCE NORTHERLY ALONG SAID CENTERLINE OF BROADWAY NORTH 000 16' 10" EAST, 75.00 FEET TO THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN A DEED TO T. J. MULLINIX RECORDED OCTOBER 29, 1897 IN BOOK 33, PAGE 197 OF DEEDS OF SAID ORANGE COUNTY; THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF SAID DEED TO T. J. MULLINIX SOUTH 890 58' 10" EAST, 181.72 FEET TO THE WESTERLY LINE OF THE EAST 130.00 FEET OF THAT PORTION OF THE LAND ALLOTTED TO JACOB ROSS, AS DESCRIBED IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12,1869 IN BOOK `B", PAGE 410 OF JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES COUNTY, CALIFORNIA; THENCE NORTHERLY, ALONG SAID WESTERLY LINE NORTH 00° 04' 48" WEST, 77.08 FEET; THENCE SOUTH 89°58'10" EAST, 130.00 FEET TO THE ABOVE MENTIONED CENTERLINE OF SYCAMORE STREET; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET, SOUTH 00°04'48" EAST, 152.06 FEET TO THE POINT OF BEGINNING. SAID LAND IS SHOWN AS LOT 1 ON VOLUNTARY LOT MERGER NO. 2022-06 RECORDED JANUARY 26, 2023 AS INSTRUMENT NO. 2023000018589, OFFICIAL RECORDS OF SAID COUNTY. Assessor's Parcel Number: 398-523-04 City Council 13 — 129 3/7/2023 EXHIBIT 3 Exhibit E: City/HOME-ARP Loan Note City Council 13 — 130 3/7/2023 EXHIBIT 3 CITY HOME -ARP LOAN NOTE SECURED BY SUBORDINATED DEED OF TRUST TO THE CITY OF SANTA ANA, CALIFORNIA (1411 North Broadway, Santa Ana, California (APN 398-523-04)) $5,256,327 1. PRINCIPAL AMOUNT OF LOAN. [March 7], 2023 Santa Ana, California For value received, NORTH BROADWAY HOUSING PARTNERS LP, a California limited partnership (`Borrower") promises to pay to the order of THE CITY OF SANTA ANA ("City"), at 20 Civic Center Plaza, 6t' Floor, Santa Ana, California 92701, or at such other place as the City may from time to time designate in writing, or to the assignee of the City, the principal sum of FIVE MILLION, TWO HUNDRED AND FIFTY SIX THOUSAND, THREE HUNDRED AND TWENTY SEVEN DOLLARS AND NO CENTS ($5,256,327.00) or so much thereof as shall be disbursed hereunder, with three percent (3%) simple interest per annum and commencing from the date of issuance of the Certificate of Completion. City and Borrower have heretofore entered into that certain Loan Agreement dated concurrently herewith (the "Loan Agreement"), pertaining to the construction of certain real property described in the Loan Agreement as the "Property," commonly known as 1411 North Broadway, Santa Ana, California (APN 398-523-04), and the operation of the Property as affordable housing for Extremely -Low Income Households, and, with respect to the HOME -ARP Units, HOME -ARP Qualifying Populations. This City HOME -ARP Loan Note (the "Note") is made pursuant to, entitled to the benefits of and referred to as the City/HOME-ARP Loan Note in the Loan Agreement; that certain "Affordability Restrictions on Transfer of Property" between Borrower and City, dated on or about the date hereof, and that certain Subordinated City/HOME-ARP Deed of Trust and Assignment of Leases and Rents by Borrower for the benefit of City, dated on or about the date hereof (the "City Deed of Trust"). This Note, the Loan Agreement, the City Deed of Trust and the Affordability Restrictions on Transfer of Property are sometimes collectively referred to herein as the "Loan Documents." The Loan Documents and the rights and responsibilities thereto inure to the benefit of the City. Any capitalized term that is not otherwise defined herein shall have the meaning ascribed to such term in the Loan Agreement. 2. DEFINITIONS. For the purpose of calculating the payments to be made by Borrower to City pursuant to this Note, the following terms shall have the following respective meanings: "City Loan" shall mean the loan evidenced by this Note. W1SEPlace Pennanent Supportive Housing ity Round a" e 13 — 131 3/7/2023 EXHIBIT 3 "City's Percentage" with reference to the Residual Receipts, shall mean 28.45% of the total Residual Receipts from the Property, as further described in Section 5 hereof. "Calendar Year" means each consecutive twelve (12) month period from January 1 to December 31. "Closing Costs" shall mean: (i) In the case of a Sale, reasonable brokerage commissions payable to a broker as a result of the Sale, which shall not in any event exceed the customary amount charged -for similar transactions in the immediate marketplace, costs of title insurance premiums, documentary stamp taxes, escrow fees, recording charges, loan repayment charges and other costs reasonably incurred with respect to the Property, in each case actually paid by Borrower as a condition of the Sale. (ii) In the case of a Refinancing, the reasonable and necessary costs of consummating such Refinancing, including, without limitation, loan fees, loan repayment charges, costs of title insurance premiums, escrow fees, recording fees, attorneys' fees and costs of Lender required repairs or reserves. "CPI" means United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index of Urban Wage Earners and Clerical Workers, Subgroup "All Items," for the Los Angeles -Riverside -Orange County area, 1982-84 = 100, or successor or equivalent index in case such index is no longer published. "Gross Revenues" shall mean all revenues and receipts of every kind actually received by Borrower from operating the Property, and all parts thereof, including, but not limited to, income from both cash and credit transactions, rental payments from leased and/or subleased spaces, governmental assistance housing payments or other operating subsidies, and parking fees and charges (but not including security deposits and other tenant deposits, except to the extent such deposits are forfeited to the Borrower under the tenant's lease). Gross Revenues does not include any insurance proceeds other than any rental interruption insurance proceeds. Any credit consideration shall be included in Gross Revenues at the time cash proceeds (principal, interest and/or other) are received. Borrower shall establish and maintain accounts for the Gross Revenues (the "'Project Accounts") that are segregated from revenues and income received by Borrower from all other projects. Gross Revenues shall also include all interest earned on the Project Accounts to the extent interest is released from the Project Accounts. Gross Revenues do not include the proceeds of any loans or capital contributions made to Borrower, Refinancing Proceeds or Sale Proceeds. "Ground Lease" shall mean the lease between the WISEPlace, a California nonprofit corporation ("WISEPlace"), and North Broadway Housing Partners, LP, a California limited partnership, dated on or about the same date hereof. "Ground Lessor" shall mean WISEPlace. 2 WISEPlace Pennanent Supportive Housing ity ounc, an Note 13 — 132 3/7/2023 EXHIBIT 3 "Interest" shall mean that the Note shall bear simple interest at the rate of Three percent (3%) per annum, from the date of issuance of the Certificate of Completion. "Operating Expenses" shall mean the sum of the following: (a) payments of principal and interest on or with respect to the Senior Loan(s); (b) payments of any other amounts on or with respect to the Senior Loan(s) beyond principal and interest (i.e. optional payments) as approved by the City; (c) a property management fee no greater than sixty-five dollars ($65)/per unit/per year, increased annually by the lesser of: (i) three percent (3%); or (ii) prior Year CPI, beginning the year following the issuance of the first certificate of occupancy for the Project; (d) Partnership related fees that are actually incurred and are reasonable and customary to the partners of Borrower for similar projects in Southern California, and which may include: (i) the partnership management fee payable to the Administrative General Partner and/or Managing General Partner not to exceed twenty thousand dollars ($20,000) per operating year and escalating at three percent (3%) per operating year; and (ii) a limited partner asset management fee of seven thousand five hundred dollars ($7,500) per year, escalating at (A) three percent (3%) per operating year; (e) Deposits into required reserves required by any lender or Borrower's Partnership Agreement; (f) all other actual, reasonable cash operating costs and expenses, calculated on an annual basis, that are directly attributable to managing and operating the Property and the Borrower, including, without limiting the generality of the foregoing, the following: costs and expenses for real and personal property taxes, special assessments or similar charges; water, fuel, electricity and other utilities; heating, ventilation and air conditioning expenses; labor; supplies; tools; equipment; insurance; advertising and marketing; accounting and legal fees; brokerage commissions and other leasing expenses; reasonable reserves for all anticipated expenses as approved by the City; and other such items constituting operation, maintenance and repair costs actually paid by the Borrower, subject to the following conditions: (i) Depreciation, amortization, and accrued principal and interest expenses on deferred payment debt and capital improvement expenditures shall not be considered Operating Expenses, except as otherwise provided herein. (g) Any expenses, compensation or fees paid to any affiliate of Borrower shall only be included as Operating Expenses to the extent they are not in excess of the reasonable expenses, compensation or fees which would be payable to unrelated third parties in arms -length transactions for similar services in the Santa Ana, California area; 3 W1SEPlace Pennanent Supportive Housing ity ounc, an Note 13 — 133 3/7/2023 EXHIBIT 3 (h) Any other expenses necessary to meet Senior Lender requirements and requirements of Borrower's Limited Partner, or its assignee, as set forth in the Partnership Agreement, including, without limitation, repayment of any loans to the Borrower by a partner or tax credit recapture or deficiency payments; (i) Deferred developer fees; and 0) The cost of social services and other housing supportive services provided at the Project consistent with the Developer's approved Application to TCAC for the Project. The Executive Director reserves the right to at any time review and approve each or any annual budget during the Term hereof, and any changes to any said annual budget reasonably requested by Director shall be promptly implemented by Borrower. Notwithstanding the foregoing, in no event shall Operating Expenses include any costs, fees, fines, charges, penalties, awards, judgments or expenses (including, but not limited to legal and accounting fees and expenses) that are due to or arising out of the Borrower's: (a) breach or default of this Note, any Loan Document or any Senior Loan Document; (b) fraudulent acts or willful misconduct; or (c) breach or default under any other contract, lease or agreement pertaining to the Project. "Project" shall mean the possession of a leasehold interest and construction of the Property by Borrower pursuant to the Loan Agreement. "Property" shall mean the real property located at 1411 North Broadway, Santa Ana, California (APN 398-523-04) described in the City Deed of Trust. "Refinancing" shall mean changing the then existing financing on the Property by, without limitation, modifying final maturity date of an existing Senior Loan, increasing the stated maximum principal amount of an existing Senior Loan, paying off an existing Senior Loan in full and obtaining a new Senior Loan. "Refinancing Proceeds" shall be as set forth in Section 7 hereof. "Residual Receipts" shall mean the Gross Revenues from the Property, for each year, less deductions for Operating Expenses from the Property, applicable to each such year to the extent not already deducted as an Operating Expense. "Sale" shall mean any transfer, assignment, conveyance or lease (other than (a) to a tenant for occupancy, (b) a transaction set forth in Section 11.3 hereof, and (c) a Permitted Transfer as such term is defined in Section 9.13 of the Loan Agreement) of the Borrower's leasehold interest in the Property or any portion thereof, or any interest therein by the Borrower, and includes any transfer, assignment or sale of any partnership interest in the Borrower by an individual or entity which is a General Partner in the Borrower, or any interest by any individual or entity which holds an interest in any such General Partner in the Borrower, which brings the cumulative total of all such direct and indirect transfers, assignments and sales by a General Partner during the term of this Note to more than forty- 4 W1SEPlace Pennanent Supportive Housing ity ounc, an Note 13 — 134 3/7/2023 EXHIBIT 3 nine percent (49%) of the ownership interests in the Borrower, and any such transfer, assignment or sale of a direct or indirect general partnership interest thereafter. Sale includes a sale in condemnation or under threat thereof. Sale does not include dedications and grants of easements to public and private utility companies of the kind customary in real estate development, nor transfers of Limited Partnership interests or transfers of General Partner interests caused by the removal of the General Partner pursuant to the terms of the Partnership Agreement. "Sale Proceeds" shall be as set forth in Section 8 hereof. "Senior Loan" shall mean the senior loan being made by Bank of America, N.A., concurrent to the City Loan for payment of a portion of the construction costs, and shall include any other loan recorded senior in priority to this City Loan as approved by the City. "Syndication" shall mean the application for and obtaining by Developer or any successor or assign of Developer of a new allocation of federal and/or state low income housing tax credits for the Project; this term excludes the reservation of Tax Credits for this Project described and defined as part of the original financing of the Project under the Loan Agreement. "Term" the term for repayment of this Note shall mean fifty-five (55) years from the Certificate of Completion. 3. LOAN REPAYMENT. Borrower shall make payments to the City as provided in Sections 5 (Residual Receipts), 7 (Refinancing Proceeds), 8 (Sale Proceeds) and 10 (Accelerated Loan Repayment). 4. OPERATING CAPITAL IMPROVEMENT LOAN. If the replacement reserve account ("reserves") is depleted due to unforeseen repairs and the General Partner(s) makes a loan to the Borrower, the reserves must be fully funded to the balance of the reserve prior to disbursement for such unforeseen repairs prior to repayment of said loan. Such loan shall be repaid with net cash flow prior to the Residual Receipt split. The outstanding loan balance will be reflected in the annual report. 5. ANNUAL LOAN REPAYMENT. 5.1. After any deferred developer fee has been paid, as set forth hereinabove, the Borrower shall thereafter make a loan payment to the City annually, in the amount of the lesser of the outstanding balance due under this Note, plus any accrued interest thereon, or the City's Percentage of the Residual Receipts, as provided in this Section 5. 5.2. Within one hundred twenty (120) days after the year in which the construction of the Project is completed, and on or before the 120th day of each Calendar Year thereafter, the Borrower shall submit to the City a detailed statement of Gross 5 W1SEPlace Pennanent Supportive Housing ity ounc, an Note 13 — 135 3/7/2023 EXHIBIT 3 Revenues and Operating Expenses attributable to the Property for the applicable Calendar Year, along with a computation of the amount of the Residual Receipts applicable to such Calendar Year with which to make a City Loan payment then due. 5.3. Except as otherwise provided in Section 4, the Borrower shall pay to the City the City's Percentage of the Residual Receipts as payment of principal and interest under this Note. The Borrower shall pay 8.12% of the Residual Receipts to the County and 13.43% of the Residual Receipts to the Orange County Housing Finance Trust. The remaining amount of the Residual Receipts shall remain with the Borrower to be used by Borrower in accordance with the terms of the Partnership Agreement, including, without limitation, for distribution to the partners of the Borrower. 5.4. The Residual Receipts payment shall be made not later than one hundred fifty (150) days after the close of the Calendar Year. Such payment shall be applied first to the payment of all expenses, charges, costs and fees incurred by or payable to City by Borrower pursuant to the terms of the Loan Documents; second to any accrued but unpaid interest, if any; and third, to reduce the principal balance of the City Loan. Notwithstanding anything to the contrary contained herein, after the occurrence and during the continuation of an Event of Default (as such term is defined in the Loan Agreement), all amounts received by City from any party shall be applied in such order as City, in its sole discretion, may elect. 6. RESERVED. 7. LOAN REPAYMENT FROM NET REFINANCING PROCEEDS/NET SYNDICATION PROCEEDS. The Borrower shall make a payment to the City from every approved Refinancing or Syndication that occurs during the term of this Note, not to exceed the outstanding balance of principal and interest on this Note to the extent of the City's Percentage (28.45%) of the Net Refinancing Proceeds / Net Syndication Proceeds (if any). The "Net Refinancing Proceeds" shall be defined as the proceeds from the refinancing of any loan approved by the City as stipulated in the Loan Agreement, net of all of the following: the amount of the financing which is satisfied out of such proceeds, closing costs, costs to rehabilitate the Project, including the costs necessary to obtain refinancing proceeds (such as consultant, legal and other consultant costs), payments toward the Senior Loan required by the Senior Lender, payment of outstanding deferred developer fee, required reserve deposits, repayment of any General Partner loans to the Borrower, the soft costs related to the rehabilitation of the Project (such as architecture, engineering and other consultant costs, and all required relocation costs), and all hard costs of the rehabilitation, all of which have been reviewed and reasonably approved by the City. The "Net Syndication Proceeds" shall be defined as the syndication proceeds net of final Project hard and soft construction costs, including developer fee, based on a cost certification completed at the end of construction, and syndication costs all of which has been reviewed and reasonably approved by the City. 6 W1SEPlace Pennanent Supportive Housing ity ouncl an Note 13 — 136 3/7/2023 EXHIBIT 3 Such payment shall be due within 30 days of the date of such Refinancing or Syndication, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the City Loan. The City shall not be required to reconvey the lien of the City Deed of Trust if Net Refinancing/Net Syndication Proceeds are insufficient to repay the City Loan in full. 8. LOAN REPAYMENT FROM SALE PROCEEDS. The Borrower shall make a payment, not to exceed (i) the outstanding balance of principal and interest on this Note to the City from any approved sale or disposition of the leasehold interest as set forth in the Ground Lease that occurs during the term of the City Loan, to the extent of the City's Percentage of the Sale Proceeds, as follows. The Sale Proceeds shall be calculated as follows: gross sale proceeds are applied first to pay Closing Costs, next to pay in full all amounts owing on any approved Senior Loan; next to pay any deferred developer fee, next the Borrower shall pay to the City the City's Percentage of the then remaining unapplied Sale Proceeds, not to exceed the outstanding balance of principal and interest on this Note. Such payment shall be due on the date of such Sale, and shall be applied first to any accrued but unpaid interest, then to reduce the principal balance of the City Loan. The City shall not be required to reconvey the lien of the City Deed of Trust if Sale Proceeds are insufficient to repay the City Loan in full. 9. RIGHT OF FIRST REFUSAL. The Borrower shall grant to the City a right of first refusal (subject to any purchase option and/or right for first refusal granted to one or more of the General Partner(s) of the Borrower and any rights of the Tax Credit Investor under the Partnership Agreement) (the "City Right of First Refusal") to acquire the leasehold interest in the Property if Borrower desires to transfer the Borrower's interest in the Property to an entity that is not affiliated with one or more of Borrower's General Partners or any member of the Managing General Partner. The City Right of First Refusal shall be in form and substance reasonably acceptable to the City, shall comply with all applicable Tax Credit requirements (including, without limitation, Section 42(1)(7) of the Internal Revenue Code, as amended) and shall, at minimum, include that the purchase price will not be less than the amount of any bona fide third party offer received by Borrower. The City Right of First Refusal is hereby subordinated to the Senior Loan Deed of Trust and the other Senior Loan Documents. Senior Lender is hereby made a third party beneficiary of the immediately preceding sentence, and such sentence shall not be amended or deleted without Senior Lender's prior written consent. 10. ACCELERATED LOAN PAYMENT. The full principal amount outstanding plus accrued but unpaid interest thereon, shall be due and payable on the earlier to occur of the following: (a) Sale or Refinancing of the Property as provided further in Section 15 hereof; unless: (i) in the case of a Sale in which the City's Percentage of the Sale 7 W1SEPlace Pennanent Supportive Housing ity Round an Note 13 — 137 3/7/2023 EXHIBIT 3 Proceeds are insufficient to repay in full the City Loan, the City approves such sale and the purchaser assumes the balance of the City Loan in accordance with the terms of this Note; or (ii) in the case of a Refinancing in which the City's Percentage of the Refinancing Proceeds are insufficient to repay in full the City Loan, the City approves such Refinancing and the Borrower remains obligated pursuant to the terms of this Note; (b) if an Event of Default occurs pursuant to Section 16 hereof which remains uncured after the expiration of all applicable notice and cure periods; or (c) The date that is fifty-five (55) years after the date of execution of the Certificate of Completion. 11. PREPAYMENT. Borrower may prepay the outstanding principal balance under this Note, in whole or in part, together with any accrued but unpaid interest, if any, and other sums owed to the City under this Note, if any, at any time without penalty. In the event of prepayment by Borrower, the Loan Agreement (only with respect to any continuing obligations of Borrower that survive repayment in full of the City Loan) and the Affordability Restrictions on Transfer of Property shall remain intact, and shall be unaffected by the prepayment of this Note by the Borrower. 12. LAWFUL MONEY. Principal and interest are payable in lawful money of the United States of America. 13. APPLICATION OF PAYMENTS; LATE CHARGES. (a) Any payments received by the City pursuant to the terms hereof shall be applied first to sums, other than principal and interest, due the City pursuant to this Note, next to the payment of all interest accrued to the date of such payment, and the balance, if any, to the payment of principal. (b) If any payment is not received by the City within thirty (30) days following the due date thereof, then in addition to the remedies conferred upon the City pursuant to this Note and the other Loan Documents: (1) a late charge of four percent (4%) of the amount due and unpaid will be added to the delinquent amount to compensate the City for the expense of handling the delinquency; and (ii) the amount due and unpaid, excluding the late charge, shall bear interest at twelve percent (12%) per annum, or the maximum amount allowed by law, whichever is less, computed from the date on which the amount was due and payable until paid. Without prejudice to the rights of the City hereunder or under any of the other Loan Documents, Borrower shall indemnify the City against, and shall pay the City on demand, any expense or loss which it may sustain or incur as a result of the failure by Borrower to pay when due any installment of interest and/or principal, fees, or other amounts payable to the City under this Note or any other Loan Document, to the extent that any such expense or loss is not recovered pursuant to such foregoing provisions. A certificate of the City setting forth the basis for the 8 W1SEPlace Pennanent Supportive Housing ity ouncl an Note 13 — 138 3/7/2023 EXHIBIT 3 determination of the amounts necessary to indemnify the City in respect of such expenses or direct loss, submitted to Borrower by the City, shall be conclusive and binding for all purposes except as corrected by Borrower notice to City within ten (10) days of receipt of such certificate from City. 14. SECURITY. This Note is secured by the City Deed of Trust. 15. ACCELERATION BY REASON OF TRANSFER OR FINANCING. 15.1. In order to induce City to make the City Loan evidenced hereby, Borrower agrees that in the event of any transfer of the leasehold interest in the Property without the prior written consent of City (other than a Permitted Transfer as defined in Section 9.13 of the Loan Agreement, or a transfer resulting from a foreclosure, or conveyance by deed in lieu of foreclosure, by the holder of the Senior Loan Deed of Trust), City shall have the absolute right at its option, upon at least 30 days' prior written notice to Borrower, to declare all sums secured hereby immediately due and payable. Where consent is required, consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. City may grant or deny such consent in its sole and absolute discretion and, if consent should be given, any such transfer shall be subject to this Section 15, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein. Such assumption shall release Borrower from all liability thereunder from and after the date of such assumption. 15.2. As used herein, "transfer" includes the Sale, agreement to sell, transfer or conveyance of the leasehold interest in the Property, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Property, or the lease of all or substantially all of the Property. 'Transfer' shall not include the leasing of individual residential units on the Property, so long as Borrower complies with the provisions of the Loan Agreement and the affordable housing restrictions relating to such leasing activity, nor shall it include a conveyance of the Property to a limited partnership in which a General Partner of Borrower or an affiliate of a General Partner of Borrower is a general partner, or to a corporation that is wholly owned by the Borrower or a General Partner of Borrower or an affiliate of the General Partner of Borrower and that is formed for the sole purpose of owning and operating the Property, or the sale back to the Borrower. In the event of any Refinancing or partial Refinancing in an amount which results in Net Refinancing Proceeds, without the prior written consent of City (which consent City may grant or deny in its sole discretion), then the entire outstanding balance of the City Loan together with all accrued and unpaid interest, shall be repaid to the City at the time of each such Refinancing or partial Refinancing. 15.3. For the avoidance of doubt, a "transfer" shall not include (i) a transfer of any General Partner's interest in Borrower when made in connection with the exercise by the Limited Partner of its rights upon a default by a General Partner under the Partnership Agreement or upon a General Partner's withdrawal in violation of the Partnership 9 W1SEPlace Pennanent Supportive Housing `ity"douncil°a" 1VOLe 13 — 139 3/7/2023 EXHIBIT 3 Agreement, so long as the removal and substitution of the defaulting General Partner is made within thirty (30) days of such default or, if such removal and substitution cannot reasonably be completed within thirty (30) days, so long as the Limited Partner commences to take action to remove and substitute the General Partner within a reasonable period and thereafter diligently proceeds to complete such substitution; (ii) any transfer of the Property to the Managing General Partner of Borrower pursuant to the right of first refusal or to the General Partners of Borrower pursuant to the purchase option, as provided for in the Partnership Agreement; (iii) any transfer of the Limited Partner's interest in accordance with the Partnership Agreement; and (iv) any sale, transfer or other disposition of an interest in a Limited Partner of the Borrower. 16. EVENT OF DEFAULT. Subject to the provisions hereof, the occurrence of any of the following shall be deemed to be an event of default ("Event of Default") hereunder: (a) failure by Borrower to make any payments provided for herein, and if such default is not made good within the earlier of fifteen (15) days of written notice to Borrower of such default or thirty (30) days after such payment was due; or (b) failure by Borrower to perform any covenant or agreement in the City Deed of Trust, the Loan Agreement, or the Affordability Restrictions on Transfer of Property within thirty (30) days after written demand therefor by City (or, in the event that more than thirty (30) days is reasonably required to cure such default, should Borrower fail to promptly commence such cure, and diligently and continuously prosecute same to completion). 17. CURE BY LIMITED PARTNER. The City acknowledges that the Limited Partner of Borrower shall have the right, but not the obligation to cure any default hereunder. Any cure made or tendered by such Limited Partner shall be accepted as if made by Borrower. 18. REMEDIES. Upon the occurrence and during the continuance of an Event of Default, after any applicable notice has been provided and the expiration of any applicable cure period therefore, City may declare all sums evidenced hereby immediately due and payable by delivery to the Trustee named in the City/HOME-ARP Deed of Trust securing this Note, and to Borrower, written declaration of default and demand for sale, and written notice of default and of election to cause the Property to be sold, which notice Trustee shall cause to be duly filed for record and City may foreclose on the City /HOME -ARP Deed of Trust. City shall also deposit with Trustee the City HOME -ARP Deed of Trust, this Note and all documents evidencing expenditures secured thereby and evidenced hereby. No delay or omission on the part of the City in exercising any right under this Note or under any of the other Loan Documents shall operate as a waiver of such right. 10 W1SEPlace Pennanent Supportive Housing ity Round a" e 13 — 140 3/7/2023 EXHIBIT 3 19. ATTORNEYS' FEES. If this City Loan Note is not paid when due or if any Event of Default occurs, Borrower promises to pay all costs of enforcement and collection, including but not limited to, reasonable attorneys' fees, whether or not any action or proceeding is brought to enforce the provisions hereof. 20. SEVERABILITY. Every provision of this Note is intended to be severable. In the event any term or provision hereof is declared by a court of competent jurisdiction, to be illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. 21. CALCULATION OF INTEREST. Interest hereunder shall be calculated on the basis of a three hundred sixty (360) day year consisting of twelve (12) months of thirty (30) days each, except that interest due and payable for a period less than a full month shall be calculated by dividing (a) the product of (i) the actual number of days elapsed in such period, (ii) the outstanding principal balance hereunder during that period and (iii) the Note interest rate in effect hereunder during that period by (b) 360. 22. NUMBER AND GENDER. In this Note the singular shall include the plural and the masculine shall include the feminine and neuter gender, and vice versa, if the context so requires. 23. NON -RECOURSE. The City Loan is a nonrecourse obligation of the Borrower. Neither Borrower nor any other party, including Borrower's partners, shall have any personal liability for repayment of the City Loan or for any other amounts under any of the documentation evidencing, securing or describing the City Loan. The sole recourse of City under this Note and the City/HOME-ARP Deed of Trust for repayment of the City Loan and for such other amounts arising therefrom shall be the exercise of its rights against the Property and related security thereunder. 24. SUBORDINATION. Any agreement by the City to subordinate the City Deed of Trust and/or Affordability Restrictions on Transfer of Property to an encumbrance securing and/or evidencing a loan that will be senior to the City Deed of Trust ("Proposed Senior Loan"), will be subject to the satisfaction of each of the following conditions: 11 W1SEPlace Pennanent Supportive Housing ity Round an Note 13 — 141 3/7/2023 EXHIBIT 3 1. All of the proceeds of the Proposed Senior Loan, less any transaction costs, are used to provide acquisition, construction and/or permanent financing for the Project, or any combination thereof; 2. The lender of a Proposed Senior Loan (each a "Senior Lender") must be a state or federally chartered financial institution, a nonprofit corporation or a public entity that is not affiliated with Borrower; 3. Borrower demonstrates to the City's reasonable satisfaction that subordination of the City Deed of Trust and/or Affordability Restrictions on Transfer of Property is necessary to secure adequate acquisition, construction and/or permanent financing to ensure the viability of the Project, including the operation of the Project as affordable housing, as required by the Loan Documents. To satisfy this requirement, Borrower must provide to the City, in addition to any other information reasonably required by the City, evidence demonstrating that the proposed amount of the Senior Loan is necessary to provide adequate construction and/or permanent financing to ensure the viability of the Project, and adequate financing for the Project would not be available without the proposed subordination; 4. The subordination agreement(s) is structured to minimize the risk that the City Deed of Trust and/or Affordability Restrictions on Transfer of Property will be extinguished as a result of a foreclosure by a Senior Lender or other holder of a Proposed Senior Loan. To satisfy this requirement, the subordination agreement must provide the City with adequate rights to cure any defaults by Borrower, including: (i) providing the City or its successor with copies of any notices of default at the same time and in the same manner as provided to Borrower; and (ii) providing the City with a cure period of at least sixty (60) days to cure any default; 5. The subordination(s) of the City Loan is effective only during the original term of the Proposed Senior Loan and any extension of its term that is approved in writing by the City; 6. No subordination may limit the effect of the City Deed of Trust and/or the Affordability Restrictions on Transfer of Property before a foreclosure, nor require the consent of the Proposed Senior Lender prior to the City exercising any remedies available to the City under the Loan Documents; and 7. Upon a determination by the City Executive Director that the conditions in this Section have been satisfied, the Executive Director or his/her designee, will be authorized to execute the approved subordination agreement without the necessity of any further action or approval by the City Council. Execution of any subordination agreement will evidence and constitute the determination of the City that all requirements of this Section have been satisfied or waived. 12 W1SEPlace Permanent Supportive Housing stounc, Wan Note yR13 — 142 3/7/2023 EXHIBIT 3 Notwithstanding anything to the contrary contained in the Loan Documents, with prior 30-days written notice to City, Borrower may refinance an existing senior loan with a non-profit, commercial, governmental or institutional lender without the prior consent of the City ("Refinanced Senior Indebtedness"), and the City hereby agrees to subordinate the lien of its Deed of Trust (but not the Affordability Restrictions on Transfer of Property) to the Refinanced Senior Indebtedness and the lien of any deed of trust or mortgage securing the Refinanced Senior Indebtedness, provided that the principal balance of the Refinanced Senior Indebtedness does not result in Net Refinancing Proceeds. 25. RESERVED. 26. RESERVED. 27. FORCE MAJEURE. Notwithstanding specific provisions of this Note, performance hereunder shall not be deemed to be in default where delays or defaults are due to: war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; acts of God or other deities; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the other party; acts or failure to act of the City or any other public or governmental City or entity (except that any act or failure to act of City shall not excuse performance by City); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time the party claiming such extension gives notice to the other party, provided notice by the party claiming such extension is given within thirty (30) days after the commencement of the cause. Times of performance under this Note may also be extended in writing by the City and the Borrower. 28. ASSIGNMENTS. The City, and the assignee of the City, shall have the right to assign this Note and the City Deed of Trust securing this Note, without any further act of Borrower. The assignee shall give notice to Borrower as soon as practicable after such assignment. {signatures on following page) 13 W1SEPlace Pennanent Supportive Housing ity ouncl an Note 13 — 143 3/7/2023 EXHIBIT 3 This Note is hereby agreed to and executed on the date first set forth above. "BORROWER" NORTH BROADWAY HOUSING PARTNERS LP, a California limited partnership By: JHC-North Broadway LLC, a California limited liability company, its managing general partner By: Jamboree Housing Corporation, a California non-profit public benefit corporation, its managing member By: Name: Title: 14 W1SEPlace Pennanent Supportive Housing ity ounc, an Note 13 — 144 3/7/2023 EXHIBIT 3 Exhibit F: Affordability Restrictions on Transfer of Property City Council 13 — 145 3/7/2023 EXHIBIT 3 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council SPACE ABOVE THIS LINE FOR RECORDING USE FREE RECORDING REQUESTED [Government Code Section 6103] AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (1411 North Broadway, Santa Ana, California (APN 398-523-04) THESE AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY (the "Restrictions") are entered into as of March 7, 2023, by and between North Broadway Housing Partners LP, a California limited partnership ("Developer"), and the City of Santa Ana, a charter city and municipal corporation ("City"), with WISEPlace, a California nonprofit public benefit corporation ("WISEPIace"), joining in the restrictions. RECITALS: A. WISEPlace is the owner of fee simple title to certain property located at 1411 North Broadway (APN 398-523-04), in the City of Santa Ana, totaling approximately 0.60 acres of land area ("the Property"). WISEPlace intends to ground lease the Property to the Developer (the "Ground Lease") for sixty-five (65) years from the Commencement Date of the Ground Lease. The Property is located in the City of Santa Ana, more particularly described in Exhibit A, which is attached hereto and incorporated herein by this reference. WISEPIace is executing a joinder to these Affordability Restrictions on Transfer of Property to encumber its fee interests with the covenants contained herein. B. The Developer is a limited partnership, whose sole general partner is JHC-North Broadway LLC, a California limited liability company (the General Partner"). WISEPlace and Jamboree Housing Corporation, a California non-profit public benefit corporation ("JHC"), are the sole members of the General Partner. The Developer will adaptively reuse one existing building on the Property and construct, own and operate an additional building on the Property to accommodate a forty-eight (48) unit multifamily affordable housing proj ect ("Project"). C. The Developer and the City have entered into that certain City/HOME-ARP Loan Agreement, dated on or about the date hereof ("Loan Agreement"), for the purpose of WISEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 146 3/7/2023 EXHIBIT 3 making the City/HOME ARP Loan ("Loan") and providing for the development of forty- seven (47) units of housing that will be affordable to Extremely Low Income Households ("Restricted Units"), with one un-restricted unit reserved for an on -site manager, to which these Restrictions are attached as Exhibit F (any capitalized term that is not otherwise defined in these Restrictions shall have the meaning ascribed to such term in the Loan Agreement). D. During the twenty (20) year HOME -ARP Compliance Period, sixteen (16) of the Restricted Units will be designated as HOME -ARP Units. The HOME -ARP Units will be rented to HOME -ARP Qualifying Populations as set forth in Housing and Urban Development ("HUD") Community Planning and Development (CPD) Notice: CPD-21- 10 (the "HOME -ARP Notice"). E. The Loan Agreement provides, among other things, for the use of the Property for affordable housing with all Restricted Units being restricted to Extremely Low Income Households, at Affordable Rent(s), as well as the requirements imposed by the HOME - ARP Notice for the HOME -ARP Units, with a preference for individuals and families who are chronically homeless. F. The Loan Agreement contains certain provisions relating to the use of the Property. NOW, THEREFORE, CITY AND DEVELOPER COVENANT AND AGREE AS FOLLOWS: 1. Developer covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property or any part thereof) that Developer, such successors, and such assigns shall use the Property exclusively to provide affordable housing to Extremely Low Income Households, as provided in these Restrictions and in the Loan Agreement. 2. Developer covenants and agrees (for itself, its successors, its assigns, and every successor in interest to the Property or any part thereof) that during the HOME -ARP Compliance Period the HOME -ARP Units will be leased to a HOME -ARP Qualifying Population as provided in these Restrictions, the Loan Agreement and the HOME -ARP Notice. 3. Developer, for itself and its successors and assigns, hereby covenants and agrees that all of the apartments in the Property (less one manager's unit) (the "Units") shall be rented exclusively, at Affordable Rent, to Extremely Low Income Households to the extent provided for herein, except to the extent a different eligibility or rent is required for HOME - ARP Units. Area median income levels and Affordable Rents are subject to adjustment from time to time as provided in Section 3 below. 2 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 147 3/7/2023 EXHIBIT 3 4. DEFINITIONS "Affordable Rent" means monthly rent that does not exceed the amounts set forth in Section 5.2 of these Restrictions. "City Restriction Period" means a period of fifty-five (55) years after the date on which the Certificate of Completion is issued. "Chronically Homeless" means an individual or family who meets the definition of "chronically homeless" under HUD regulations and guidance, including 24 C.F.R. § 578.3. "Extremely Low Income" means an adjusted income that does not exceed thirty percent (30%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Extremely Low Income Household" means an individual or family whose income qualifies as Extremely Low Income, adjusted for household size, as published by HUD. "HOME -ARP Compliance Period" means a period of twenty (20) years from the issuance of the Certificate of Completion, unless a shorter period is required by HUD or the HOME -ARP Program. "HOME -ARP Program" means the program established with the HOME - American Rescue Plan (HOME -ARP) funds from the United States Department of Housing and Urban Development ("HUD") under the Section 3205 of the American Rescue Plan Act of 2021 (P.L. 117-2)) ("ARP) to be implemented through the HOME Investment Partnerships Program (the "HOME Program") (42 U.S.C. § 12701, et seq.,) and governed in accordance with applicable statutory requirements, regulations, and guidance, including but not limited to HUD Notice CPD-21-10 (the "HOME -ARP Notice") and the HOME Regulations (24 CFR Part 92). "HOME -ARP Qualifying Populations" means any individual or family who meets the eligibility criteria of a "qualifying population" of the HOME -ARP Program. "HOME -ARP Units" the sixteen (16) units assisted under the HOME -ARP Program and subject to the HOME -ARP Compliance Period. "Limited Partner" means, collectively, the investor limited partner and special limited partner of the Developer, and their respective successors and assigns. "Low HOME Rent" means rent that does not exceed thirty percent (30%) of the adjusted income of a household whose annual income is equal to or less than fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD for the HOME -ARP rent limits. 3 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 148 3/7/2023 EXHIBIT 3 "Restricted Units" means the forty-seven (47) units restricted to Extremely Low Income Households during the City Restriction Period, which includes the sixteen (16) HOME -ARP Units assisted under the HOME -ARP Program and available for rental to HOME -ARP Qualifying Populations during the HOME -ARP Compliance Period. "Very Low Income" means an adjusted income that does not exceed fifty percent (50%) of the area median income for the Orange County, California PMSA, adjusted for household size, as published by HUD. "Very Low Income Household" means an individual or family whose annual income qualifies as Very Low Income, adjusted for household size, as published by HUD. 5. AFFORDABILITY REQUIREMENTS, USE AND MAINTENANCE OF THE PROPERTY 5.1. Use Covenants and Restrictions. (a) Developer agrees and covenants, which covenants shall run with the land and bind Developer, its successors, its assigns and every successor in interest to the Property, that all Restricted Units on the Property will be made available for rent as follows: (i) Except as set forth in sub -paragraph (ii) of this Section 5.1(a), the Restricted Units shall be rented to Extremely Low Income Households for the City Restriction Period. (ii) During the HOME -ARP Compliance Period, all HOME - ARP Units must be rented to a HOME -ARP Qualifying Population as allowed by the HOME -ARP Program. After the HOME -ARP Compliance Period expires, all Units shall be restricted under sub -paragraph (i) of this Section 5.1(a). (b) The HOME -ARP Units shall be studio units, with comparable amenities to the other Restricted Units. The HOME -ARP Units shall be initially distributed throughout the complex, but thereafter shall be allowed to "float" . (c) It is anticipated that during the Term of Agreement the Project will be supported by Project -Based Section 8 rental subsidy payments provided by the Housing Authority of the City of Santa Ana ("Housing Authority") for not less than twenty-five (25) of the Restricted Units (the "PBV Rental Subsidy"), and the HOME - ARP Subsidy Reserve will be utilized to cover operating deficits associated with the sixteen (16) HOME -ARP Units. To the extent allowed by the HOME -ARP Program, the HOME -ARP Subsidy Reserve cannot be used for HOME -ARP Qualifying Households with project -based vouchers or project -based rental assistance (but may be used for HOME -ARP Qualifying Households with tenant based rental assistance). The PBV Rental Subsidy may not be placed on any HOME -ARP Unit. (d) The Developer shall establish a preference for renting Restricted 4 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 149 3/7/2023 EXHIBIT 3 Units to individuals and families who qualify as Chronically Homeless in accordance with Section 7.5, provided, however that any preference applicable to the HOME -ARP Units must comply with the HOME -ARP Program. (e) Rental increases in the Restricted Units shall be subject to and in conformance with federal, state law, and local law. (f) Maximum Occupancy for Restricted Units will be three persons per studio unit. (g) For all Restricted Units, Developer must have a written lease between tenant and owner for a period of at least one year, unless a shorter period is mutually agreed upon. All leases must be consistent with the applicable laws and regulations, including the HOME -ARP Program for the HOME -ARP Units. 5.2. Affordability Levels/Unit Mix: (a) All Restricted Units in the Property will be studios, except the one (1) manager unit will be a 2-bedroom unit reserved for the on -site manager. (b) Except as set forth in sub -paragraph (c) of this Section 5.2, the allowable rent for the Restricted Units in the Project shall not exceed the Affordable Rent for an Extremely Low Income Household as follows: Unit Size 30% TCAC AMI No. Units Current Rent Studio 47 $711 Total 47 The remaining unit will be an un-restricted 2-bedroom unit reserved for the onsite manager. (c) During the HOME -ARP Compliance Period, the allowable rent for HOME -ARP Units in the Project shall not exceed the lesser of: (a) 30% of the tenant's actual household income (inclusive of Supplemental Security Income (SSI) / State Supplementary Payment (SSP) payments); or (b) the Low HOME Rent in accordance with the HOME -ARP Program. The number of HOME -ARP Units and allowable rent shall be as follows: HOME -ARP Units # of HOME- HOME -ARP Maximum ARP Units Restriction Allowable Rent HOME -ARP 16 Studio Units Qualifying Low HOME Rent Population 5 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 150 3/7/2023 EXHIBIT 3 (i) At the time of project completion, the Developer shall provide to the City the address and/or unit number of each of the units initially designated as the HOME -ARP Units. (ii) Annually with the financial statements, the Developer shall provide an annual report of rents and occupancy of all Restricted Units, including the HOME -ARP Units, to verify compliance with affordability requirements. For the HOME -ARP Units, information on unit substitution and filling vacancies shall be provided to ensure that the project maintains the required unit mix. (d) The Affordable Rents charged at the Project must comply with the standards set forth by TCAC as defined in this Affordability Restrictions on Transfer of Property, except that during the HOME -ARP Compliance Period, and if allowed by the HOME -ARP Program, the Affordable Rents for the HOME -ARP Units must comply with the most stringent of standards set forth by the HOME -ARP Program and TCAC. (e) At the time of this Agreement, the Project will pay for all utilities with no tenants being charged for utilities. If tenants are charged for utilities at any time during the term of this Agreement, a utility allowance must be deducted from the maximum affordable rent charged at the Project for each unit. With respect to the HOME -ARP Units, utility allowances must be based on project -specific allowances. (f) Initial rents may be recalculated to allowable rental amounts at the time of initial lease -up following completion of construction in accordance with any changes in allowable rent and income tables as published by HUD. 5.3. Rent Increases. On an annual basis, the City shall provide Developer with the maximum allowable schedule of rents for the Property in accordance with changes in allowable rent and income tables published by HUD and TCAC, provided however that the rent for the HOME -ARP Units shall in no event be higher than the rent for the equivalent non -HOME -ARP Unit within the Project. In no event can Developer charge any tenant more than such amount. All rent increases on the Restricted Units are subject to City approval pursuant to the terms of this Section. No later than sixty (60) days prior to the proposed implementation of any rent increase, Developer shall submit to the City a schedule of any proposed increase in the rent. The City will disapprove a rent increase if it does not comply with the restrictions set forth in Section 5.2 above. (a) Termination of Tenancy. Developer may not terminate the tenancy or refuse to renew the lease of any tenant except for serious or repeated violation of the terms and conditions of the Lease; for violation of applicable federal, state, or local law; for completion of the transitional housing tenancy period (if the housing is transitional); or for other good cause. Any termination or refusal to renew must be preceded by not less than thirty (30) days by the Developer's service upon the tenant of a written notice specifying the grounds for the action. 6 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 151 3/7/2023 EXHIBIT 3 (b) Non -Qualifying Adjusted Income. Subject to the applicable requirements and provisions of, and changes to, the HOME -ARP Program, and Section 42 and 142(d) of the Internal Revenue Code of 1986, as amended (the "Code"), if, upon recertification of the income of a tenant of a Restricted Unit, the Developer determines that a tenant has an adjusted income exceeding 30% of the applicable Median Income for the Area in each case, adjusted for household size as provided in Section 5.2 above, such tenant may be permitted to continue to occupy the Restricted Unit at the rental rate as provided for in Section 5.2 above, until the tenant chooses to vacate the Restricted Unit. After the Restricted Unit is vacated, the Restricted Unit shall be re -rented to a tenant pursuant to the terms, covenants and conditions of these Restrictions. 5.4. Maintaining Financial Stability. It is anticipated that during a portion of the Term of Agreement the Project will be supported by a PBV Rental Subsidy for not less than twenty-five (25) of the Restricted Units, and the HOME -ARP Subsidy Reserve for the sixteen (16) HOME -ARP Units. These subsidies will not overlap on the same units. If, during the Term of Agreement and through no fault of Developer, (a) the HOME -ARP Subsidy Reserve is depleted, (b) there is a reduction, termination or nonrenewal of the PBV Rental Subsidy, or (c) the Project generates insufficient income to cover its operating costs, required deposits to replacement reserves, and debt service on approved financing as shown on the Operating Budget, and as is necessary to maintain the financial stability of the Project, with the exception of the HOME -ARP Units during the HOME -ARP Compliance Period, Developer may request approval of the City (a) to allow households with adjusted incomes that do not exceed sixty percent (60%) of AMI, adjusted for actual household size, to occupy the Restricted Units (i.e., a unit previously restricted to households with adjusted incomes that do not exceed 30% of AMI), and (b) to increase the rent on one or more of the Restricted Units to rents that are affordable to households with an adjusted income that does not exceed sixty percent (60%) of AMI, adjusted for actual household size . The rent increase is subject to the following requirements: (a) concurrently with the request, Developer shall provide the City with evidence of the anticipated reduction, termination, or nonrenewal of the Rental Subsidy and/or depletion of the HOME -ARP Subsidy Reserve and/or evidence that the Project is not operating at a financially stable level, (b) a Management Plan (as defined in Section 6.1(d) of the Loan Agreement) for the Project for the City's approval pursuant to Sections 6.1(d) and Exhibit G of the Loan Agreement, showing the impact of the depletion of the HOME -ARP Subsidy Reserve and/or loss, termination, or reduction of the Rental Subsidy; (c) a proposed operating budget reflecting the requested rent increases (the "Operating Budget"); and (d) a description of efforts to obtain alternate sources of rental subsidy and/or maintain financial stability. The number of the Restricted Units subject to the rent increase and the amount of the proposed increase may not be greater than the number or amount required to ensure that the Project generates sufficient income to cover its operating costs, required deposits to replacement reserves, and debt service on approved financing as shown on the Operating Budget, and as is necessary to maintain the financial stability of the Project. In addition , Developer hereby agrees to the following: (a) Developer shall use good faith commercially reasonable efforts to obtain alternative sources of rental subsidies and shall provide the City with annual 7 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 152 3/7/2023 EXHIBIT 3 progress reports on efforts to obtain alternative sources of rental subsidies that would allow the rents to be reduced. Upon receipt of any alternative rental subsidies, Developer shall reduce the rents back to the original restrictions to the extent that the alternative rental subsidies provide sufficient income to cover the operating costs, required replacement reserves and debt service of the Project as shown on the Operating Budget. (b) Developer shall provide tenants in the Restricted Units with notice of any rent increase pursuant to this Section 5.4, and shall notify the tenant that if they have received a tenant -based voucher from the Housing Authority they may use the tenant -based voucher for their Restricted Unit. (c) All rent increases for the Restricted Units are subject to City approval pursuant to the terms of this Section 5.4. No later than sixty (60) days prior to the proposed implementation of any rent increase, Developer shall submit to the City a schedule of any proposed increase in the rent. The City will disapprove a rent increase if it does not comply with the restrictions set forth in this Section 5.4. Notwithstanding the foregoing, rent increases for the Restricted Units shall be subject to review and approval of the City. (d) Developer shall give tenants of all Restricted Units written notice at least sixty (60) days prior to any rent increase. With respect to any Restricted Units for which City has authorized Developer to increase rents pursuant to this Section, the preference to rent to Chronically Homeless households shall automatically terminate. The City's local preferences as Section 7.5 of these Restrictions shall remain. 6. Developer, its successors and assigns shall not charge rents for the Units in excess of the amounts set forth herein, as adjusted on the basis of the revised schedules of area median incomes issued from time -to -time by HUD. The City shall notify Developer in writing of the adjusted allowable maximum incomes and rents. 7. Developer shall adopt and include as part of its Management Plan (described in Section 13 below), written tenant selection policies and criteria for the Units that meet the following requirements: 7.1. Are consistent with the purpose of providing housing to HOME -ARP Qualifying Populations (applicable only with respect to the HOME - ARP Units), Extremely Low Income Households, and individuals or families who qualify as Chronically Homeless; 7.2. Are reasonably related to program eligibility and the applicants' ability to perform the obligations of the lease; 7.3. Give reasonable consideration to the housing needs of households that would have a preference under 42 CFR §906.211 (Federal selection preferences for admission to Public Housing); W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 153 3/7/2023 EXHIBIT 3 7.4. Provide for: (a) The selection of tenants through the Coordinated Entry System, except as necessary to comply with the HOME -ARP Program; (b) To the extent practicable, and in a manner consistent with sub- paragraph (a), selection of tenants from a written waiting list in the chronological order of their application; and (c) The prompt written notification to any rejected applicant of the grounds for any rejection. 7.5. With regard to the leasing of the Restricted Units, inclusive of the persons referred off of the County of Orange coordinated entry system for the HOME -ARP Units, and subject to compliance with the HOME -ARP Program, the HOME Regulations and applicable California and federal fair housing laws, and the requirements of Section 142(d) and Section 42 of the Internal Revenue Code, Developer's tenant selection plan shall include a preference for individuals or families who qualify as Chronically Homeless and satisfy the criteria below, in the following order of priority: (a) First priority shall be given to persons who are either: (i) Residents of Santa Ana; and/or (ii) Working in Santa Ana at least 32 hours per week for at least the last 6 months. (b) The Restricted Units will still be available to the general public, as required under Section 142(d) of the Code and Section 42 of the Code, and these preferences do not restrict the availability of the units to the general public. 7.6. Carry out the affirmative marketing procedures of the City of Santa Ana, which are designed to provide information and otherwise attract eligible persons from all racial, ethnic and gender groups in the housing market area to the units. Developer shall cooperate with the City to effectuate this provision prior to the initial renting, or upon occurrence of a vacancy, and the re -renting of any HOME -ARP assisted units (24 CFR 92.351). 8. Developer, its successors and assigns, shall not refuse to lease a unit to a holder of a rental voucher under 24 CFR part 887 (Housing Choice Voucher Program) or to a holder of a comparable document evidencing participation in a HOME and/or HOME -ARP tenant -based assistance program because of the status of the prospective tenant as a holder of such certificate of family participation, rental voucher, or comparable HOME and/or HOME -ARP tenant -based assistance document. Total rents charged to the tenant for the tenant's share of rent shall not exceed the allowable rents as described above. 9 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 154 3/7/2023 EXHIBIT 3 9. Any lease of any of the units must be maintained in the tenant's rental file held by the Developer. The lease may not contain any of the following provisions (in which references to "owner" shall mean the Developer, its successors or assigns): 9.1. Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease; 9.2. Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing Unit after the tenant has moved out of the Unit. The owner may dispose of this personal property in accordance with state law; 9.3. Agreement by the tenant not to hold the owner or the owner's agent legally responsible for any action or failure to act, whether intentional or negligent; 9.4. Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant; 9.5. Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties; 9.6. Agreement by the tenant to waive any right to a trial by jury; 9.7. Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease; and 9.8. Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses. 10 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 155 3/7/2023 EXHIBIT 3 10. Developer, its successors or assigns, must adhere to state law requirements with regard to termination of tenancy. 11. Developer shall maintain the improvements on the Property in compliance with all applicable housing quality standards [24CFR 92.504 (c)(6)] and state and local code requirements (California Health and Safety Code section 33418), and shall keep the Property free from any unreasonable accumulation of debris or waste materials. Developer shall also maintain in a healthy condition any landscaping planted on the Property. 12. Developer covenants and agrees for itself, its successors, its assigns and every successor in interest to the Property or any part thereof, there shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, mental or physical disability, marital status, national origin or ancestry in the sale, lease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property, as required by the Title VI of the Civil Rights Act of 1964, the Fair Housing Act (42 U.S.C. 3601-20) and all implementing regulations, and the Age Discrimination Act of 1975, and all implementing regulations. 13. Not later than fifteen (15) business days prior to the Close of Escrow on the Loan Agreement, Developer shall submit to the Executive Director a Management Plan in a form reasonably acceptable to the Executive Director, including, but not limited to, the components listed below. Approval of the Management Plan must be obtained from the Executive Director not later than the time for the Close of Escrow. Developer shall manage the Restricted Units in accordance with the approved Management Plan, including such amendments as may be approved in writing from time to time by the Executive Director, for the term of the income and rent restrictions contained in these Restrictions. The components of the Management Plan shall include: 13.1. Management Agent. Developer shall submit the name and qualifications of the proposed Management Agent. The Executive Director shall approve (such approval not to be unreasonably withheld or delayed) or disapprove the proposed Management Agent in writing based on the experience and qualifications of the Management Agent. 13.2. Management Agreement. Developer shall submit a copy of the proposed management agreement specifying the amount of the management fee, and the relationship and division of responsibilities between Developer and Management Agent. 13.3. Annual Budget and Projected Cash Flows. Prior to the Closing, and annually thereafter not less than sixty (60) days prior to the close of each calendar year thereafter until the Loan is repaid in full, Developer shall submit a projected operating budget and cash flow to the Executive Director for the following calendar year. The budget and cash flow shall be in a form that is acceptable to the Executive Director. 13.4. Tenant Selection Policies. Developer shall include in the Management 11 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 156 3/7/2023 EXHIBIT 3 Plan the tenant selection policies in accordance with Section 5, above. 14. If at any time the City determines that the units are not being managed or maintained in accordance with the approved Management Plan, the City shall send the Developer a detailed description of the management deficiencies (a "Deficiency Notice"). If the deficiencies set forth in the Deficiency Notice are not cured within sixty (60) days (or such longer period as may be reasonably required to cure the deficiency), with the exception of any applicable HOME -ARP Program regulations that require a shorter period, the Executive Director may require Developer to change management practices or to terminate the management contract and designate and retain a different management agent. The management agreement shall provide that it is subject to termination by Developer without penalty, upon thirty (30) days prior written notice, at the direction of the Executive Director upon failure to cure a Deficiency Notice within the time period specified above. Within thirty (30) days following a direction of the Executive Director to replace the management agent in accordance with the terms hereof, the Developer shall select another management agent or make other arrangements satisfactory to the Executive Director or designee for continuing management of the units. 14.1. Marketing lan. The marketing plan will apply to all of the units in the Project, except the one manager's unit. The Developer shall submit a marketing plan for review and approval by the Executive Director which approval will not be unreasonably withheld, conditioned or delayed. The marketing plan must contain procedures that ensure marketing of the Restricted Units to Extremely Low Income Households, and the HOME - ARP Units to HOME -ARP Qualifying Populations, with a preference for Chronically Homeless households for the Restricted Units. Such procedures shall be applicable for initial rent -up and ongoing marketing of the units throughout the term of these Restrictions. Developer shall advertise vacancies of the Restricted Units in general distribution newspapers that circulate throughout the City. Where the Developer utilizes other forms of advertising, such advertising shall also be distributed throughout the City. The marketing plan shall be consistent with the County of Orange coordinated entry system. 15. Covenants Binding on the Property. 15.1. The covenants established in these Restrictions and any amendments hereto approved by the City, Developer, and WISEPlace shall, without regard to technical classification and designation, be binding for the benefit and in favor of the City and their respective successors and assigns. 15.2. These Restrictions shall remain in effect for fifty-five (55) years from the issuance of the Certificate of Completion and the HOME -ARP Units shall be subject to the HOME -ARP Compliance Period. 15.3. In its discretion, the City may defer repayment of the HOME -ARP Loan or the City may agree to such reasonable modifications to the requirements of these Restrictions, as they may determine are necessary for the continued maintenance and operation of the Restricted Units. The covenants against discrimination shall remain in effect for the period of these Restrictions. 12 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 157 3/7/2023 EXHIBIT 3 15.4. WISEPIace, as owner of the Project's fee estate and as Lessor under the Ground Lease with respect to the Project, has joined herein to evidence its consent to these Restrictions and its agreement that the Restrictions bind the Project, the fee estate, and the leasehold estate created by the Ground Lease (both landlord and tenant's interests) and run with the land. WISEPIace agrees and understands that its agreement to these Restrictions being imposed upon and recorded against the Ground Lease and the fee estate is part of the consideration for City entering into a Loan Agreement. 16. Developer shall not request disbursement of HOME -ARP Loan until the funds are needed to pay eligible costs. The City shall have the right to disapprove any request if the City reasonably determines the request is for an ineligible item or is otherwise not in compliance with or inconsistent with the Loan Agreement, these Restrictions, the HOME - ARP Notice and/or the applicable HOME Programs [24 CFR 92.504(c)]. 17. Maintenance; Compliance with Law. During the term of these Restrictions, Developer agrees to maintain all interior and exterior improvements, including landscaping, on the Project in good condition, repair and sanitary condition (and, as to landscaping, in a healthy condition) and in accordance with any Management Plan approved by the City under these Restrictions (including without limitation any landscaping and signage), as the same may be amended from time to time, and all other applicable laws, rules, ordinances, orders, and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having jurisdiction over the Property and all their respective departments, bureaus, and officials. Developer acknowledges the great emphasis the City places on quality maintenance to protect its investment and to provide quality low income housing for its constituents and to ensure that all City subsidized affordable housing projects within the City are not allowed to deteriorate due to deficient maintenance. In addition, Developer shall keep the Project free from all graffiti and any accumulation of debris or waste material. Developer shall promptly make all repairs and replacements necessary to keep the Project in good condition and repair and shall promptly eliminate all graffiti and replace dead and diseased plants and landscaping with comparable approved materials. In the event that Developer breaches any of the covenants contained in this Section 15 and such default continues for a period of five (5) days after written notice from the City (with respect to graffiti, debris, waste material, and general maintenance) or thirty (30) days after written notice from the City (with respect to landscaping and building improvements), then the City, in addition to whatever other right or remedy it may have under the Loan Agreement, the other Loan Documents, these Restrictions or at law or in equity, shall have the right to enter upon the Project and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, the City shall be permitted (but is not required) to enter upon the Project and perform all acts and work necessary to protect, maintain and preserve the improvements and landscaped areas on the Project. Developer shall promptly pay to the City, as applicable, the amount of the expenditure arising from such acts and work of protection, maintenance, and preservation by the City and/or costs of such cure, including a fifteen percent (15%) administrative charge. 13 W1SEPlace Pennanent Supportive Housing l.,ltHUdL AKr Jrroraaoniry Kestrieuonson i ransrer or rroper[y 13 — 158 3/7/2023 EXHIBIT 3 18. Developer shall prepare, maintain and submit to the City, as appropriate, the following records and reports in compliance with the HOME -ARP Program and 24 CFR 92.504(c): 18.1. Annual Reports. Developer shall file with the City an Annual Report (herein referred to as the "Annual Report") by June I5th of each calendar year, commencing with the end of the calendar year (or portion thereof) in which the Ground Lease is executed. The Annual Report shall contain a certification by Developer as to such information as the City Executive Director may then reasonably require, including, but not limited to, the following: (a) The fiscal condition of the Project, including the Annual Budget and Project Cash Flow report required by Section 13.3 which shall include a financial statement for the previous calendar year that includes a balance sheet and a profit and loss statement indicating any surplus or deficit in operating accounts; a detailed itemized listing of income and expenses; and the amounts of any fiscal reserves. Such Annual Budget and financial statement shall be prepared in accordance with generally accepted accounting practices. The City Executive Director may require that the financial statement be audited at Developer's expense by an independent certified public accountant acceptable to the Executive Director. (b) Any substantial physical defects in the Project, including a description of any major repair or maintenance work undertaken or needed in the previous and current years. Such statement shall describe what steps Developer has taken in order to maintain the Project in a safe and sanitary condition in accordance with applicable housing and building codes and the property standards set forth in 24 CFR 92.251. (c) The occupancy of the units indicating the income of each current resident and the current rents charged each resident and whether those rents include utilities, including records that demonstrate that the Project meets the requirements of 24 CFR 92.253 for tenant and participant protection under the HOME -ARP Program. (d) General management performance, including tenant relations and other relevant information. (e) Records that demonstrate that the Restricted Units meet the applicable affordability requirements for the required period of affordability. (f) Evidence of a currently paid hazard insurance policy in accordance with the requirements of Section 3 of the City/HOME-ARP Deed of Trust, with a loss payable endorsement naming the City as a loss payee(s) together with other approved lenders (as their interests may appear), with a "Replacement Cost Endorsement" in amount sufficient to prevent Developer or City from becoming a co-insurer under the terms of the policy, but in any event in an amount not less than 100% of the then full replacement cost, to be determined at least once annually and subject to reasonable approval by the Executive Director. 14 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 159 3/7/2023 EXHIBIT 3 (g) Evidence of a currently paid liability insurance policy, naming the City as additional insured and in a form approved by the City Attorney with coverage as described in the Loan Agreement. (h) Termite reports pertaining to the Property every fifth (5t) year. (i) Such other information as may be reasonably required by the Executive Director or his/her designee. 18.2. Records and Audits. During the HOME -ARP Compliance Period, Developer shall maintain the following general program records, and make them available for inspection by the City, the State or HUD: (a) records which demonstrate that the HOME -ARP Units meet the property standard specified in 24 CFR 92.251; (b) records, for each HOME -ARP Unit, which demonstrates that such units meet the requirements of 24 CFR 92.252; (c) records which demonstrate compliance with the tenant and participant protections, as specified in 24 Section 29.253; (d) records which demonstrate compliance with the Equal Opportunity and Fair Housing requirements outlined in these Restrictions, including: (i) data on the extent to which each racial and ethnic group and single head of household (by gender of head of household) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with HOME -ARP funds; (ii) documentation of actions undertaken to meet the equal opportunity requirements of 24 CFR 92.350, which implements Section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u); (iii) documentation and data on the steps taken to implement Developer's outreach programs to minority -owned and women -owned businesses to meet the minority outreach requirements of 24 CFR 92.350; (e) documentation of the steps taken to carry out an affirmative marketing program in accordance with 24 CFR 92.351, if applicable; (f) if applicable, records which demonstrate compliance with the requirements relating to relocation of displaced persons, as described in 24 CFR 92.353. At a minimum, these shall include project occupancy lists identifying the name and address of all persons occupying the project property up until the date of the Closing (i.e., the date on which Developer obtained site control); (g) records concerning lead -based paint in accordance with 24 CFR 15 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 160 3/7/2023 EXHIBIT 3 92.355; (h) if applicable, records which support any requests for waivers of the conflict of interest prohibition as stated in 24 CFR 92.356; (i) records of certifications of contractor qualifications as they relate to the debarment and suspension requirement as stated in 24 CFR 92.357 and 24 CFR Part 24; and (j) any other reports required by other monitoring agencies with jurisdiction over the Property. 18.3. All records pertaining to each calendar year of HOME -ARP funds must be retained for the most recent five year period, except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates (24 CFR 92.508). Developer shall cooperate with the City to retain all books and records relevant to the Loan Agreement for a minimum of five years after the expiration of the Loan Agreement and any and all amendments hereto, or for five years after the conclusion or resolution of any and all audits or litigation relevant to the Loan Agreement, whichever is later. The City, the State, the Office of the Auditor General of HUD, and/or their representatives shall have unrestricted reasonable access to all locations, books, and records for the purpose of monitoring, auditing, or otherwise examining said locations, books, and records with or without prior notice. 18.4. If so directed by the City, the State or HUD upon termination of the Loan Agreement, Developer shall cause all records, accounts, documentation and all other materials relevant to the work to be delivered to the City, the State or HUD, as depository. 18.5. All records, accounts, documentation and other materials relevant to the Project shall be accessible at any time to the authorized representatives of the City, the State or HUD, on not less than seventy-two (72) hours' prior written notice, for the purpose of examination or audit. 18.6. Pursuant to 24 CFR Part 44, the City shall perform an annual audit at the close of each calendar year in which these Restrictions are in effect. Developer shall reasonably cooperate with City in performing such audit. 16 WlSSEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 1 61 3/7/2023 EXHIBIT 3 19. If an event of default occurs under the terms of these Restrictions, prior to exercising any remedies hereunder, City shall give Developer written notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Developer shall have such period to effect a cure prior to exercise of remedies by the City under these Restrictions. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Developer: (i) initiates corrective action within said period; and (ii) diligently, continually, and in good faith works to effect a cure as soon as reasonably possible, then Developer shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by City. The City shall provide the Developer's Limited Partner with an opportunity to cure any default. Any cure made or tendered by Limited Partner shall be accepted as if made by Developer. The City is a beneficiary of the terms and provisions of these Restrictions and the covenants herein, both for and in their own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit these Restrictions and the covenants running with the land have been provided. Upon the occurrence of and continuation of an event of default following written notice to Developer thereof and the expiration of the cure period specified above, the City shall have the right to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which they or any other beneficiaries of these Restrictions and covenants are entitled. 20. Default. Each of the following shall constitute an "Event of Default" by Developer under these Restrictions: 20.1. Failure to Make Payments. Developer fails to make any payment due the City under these Restrictions within thirty (30) days after receiving written notice for said payment from the City; 20.2. Non -Monetary Failure to Perform. Developer fails to timely perform, comply with or observe any of the terms, covenants, or conditions of these Restrictions (other than those provisions elsewhere referred to in this Section 18) and such failure continues uncured or without Developer commencing to diligently cure for thirty (30) days after notice thereof in writing is given by the City to Developer, provided that if Developer has commenced cure but cannot complete such cure reasonably within thirty (30) days, Developer shall have one hundred and twenty (120) days from the date of notice to cure such failure without such failure constituting an event of default; 20.3. Senior Loan Document Breach. Any default or breach of Developer which continues uncured after the expiration of any applicable cure period under the Loan Agreement (including, but not limited to, the obligations of the Developer under Section 6 of the Loan Agreement), or any Loan Document or any default or breach of Developer under the Senior Loan Documents, which continues uncured after the expiration of any applicable cure period thereunder; 17 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 162 3/7/2023 EXHIBIT 3 20.4. Voluntary Suspension. The voluntary suspension of Developer's business or the dissolution or termination of the partnership (if any) constituting Developer; 20.5. Unauthorized Transfer. Developer's sale or other transfer of the Project in violation of the Loan Agreement; 20.6. Fraud or Material Misstatement or Omissions. Any fraudulent act or intentional material omission of Developer pertaining to or made in connection with the Loan, Loan Documents or the Project that is not cured within thirty (30) days after written notice to Developer, unless such act or omission is not capable of cure; 20.7. Insolvency. A court having jurisdiction shall have made or entered any decree or order: (1) adjudging Developer to be bankrupt or insolvent; (11) approving as properly filed a petition seeking reorganization of Developer or seeking any arrangement for Developer under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (iii) appointing a receiver, trustee, liquidator, or assignee of Developer in bankruptcy or insolvency or for any of their properties; or (iv) directing the winding up or liquidation of Developer, if any such decree or order described in clauses (i) to (iv), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) days, unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this section as well; or Developer shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submitted to or filed apetition seeping any decree or order of the nature described in clauses (i) to (iv), inclusive. The occurrence of any of the events of default in this paragraph shall act to accelerate automatically, without the need for any action by the City, the indebtedness evidenced by the Note; or 20.8. Project Monies. Developer's intentional misapplication or embezzlement of Project monies. 21. Reserved. 22. Remedies. The occurrence of any Event of Default shall, either at the option of the City or automatically where so specified, relieve the City of any obligation to make or continue the Loan and shall give the City the right to proceed with any and all remedies set forth in these Restrictions or otherwise available at law or in equity or by statute (and all of the City's rights and remedies shall be cumulative), including but not limited to the following: 22.1. Acceleration of Note. The City shall have the right to cause all indebtedness of the Developer to the City under the Note, together with any accrued interest thereon, to become immediately due and payable. The Developer waives all right to presentment, demand, protest or notice of protest, or dishonor. The City may proceed to enforce payment of the indebtedness and to exercise any or all rights afforded to the City as a creditor and secured party under the law, including the Uniform Commercial Code, including foreclosure under the City/HOME-ARP Deed of Trust. The Developer shall be liable to 18 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 163 3/7/2023 EXHIBIT 3 pay the City on demand all expenses, costs and fees (including, without limitation, reasonable attorneys' fees and expenses) paid or incurred by the City in connection with the enforcement of this provision, provided that such expenses, costs and fees shall be subordinate to the Senior Loan made to Developer and the Senior Loan Documents. 22.2. Specific Performance. The City shall have the right to mandamus or other suit, action or proceeding at law or in equity to require Developer to perform its obligations and covenants under these Restrictions or to enjoin acts on things, which may be unlawful, or in violation of the provisions of these Restrictions. The Developer shall be liable to pay the City on demand all expenses, costs and fees (including, without limitation, reasonable attorneys' fees and expenses) paid or incurred by the City in connection with the enforcement of these Restrictions. 22.3. Right to Cure at Developer's Expense. The City shall have the right to cure any monetary Event of Default by Developer under these Restrictions. The Developer agrees to reimburse the City for any funds advanced by the City to cure a monetary default by Developer upon demand therefore, together with interest thereon at the rate of twelve percent (12%) per annum or the maximum rate permitted by law, whichever rate is lesser, from the date of expenditure until the date of reimbursement. 22.4. Remedies Cumulative. No right, power, or remedy given to the City by the terms of these Restrictions is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the City by the terms of any such instrument, or by any statute or otherwise against Developer and any other person. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. 22.5. Waiver of Terms and Conditions. No waiver of any default or breach by Developer hereunder shall be implied from any omission by the City to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and such waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term, or condition. The consent or approval by the City to or of any act by Developer requiring further consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar act. The exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of any default under these Restrictions or the Loan Documents, nor shall it invalidate any act done pursuant to notice of default, or prejudice the City in the exercise of any right, power, or remedy hereunder or under the Loan Documents, unless in the exercise of any such right, power, or remedy all obligations of Developer to City are paid and discharged in full. 19 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 164 3/7/2023 EXHIBIT 3 23. The covenants and agreements contained herein shall run with the land and not be personal obligations of Developer. Upon the sale, conveyance or other transfer of the leasehold interest in the Property (a "Transfer") and the assumption of the obligations hereunder by a transferee, Developer's liability for performance shall be terminated as to any obligation to be performed hereunder after the date of such Transfer. 24. The Loan Agreement and all of its attachments shall be enforceable by City in accordance with the terms thereof. Each of the Loan Agreement, the Affordability Restrictions on Transfer of Property, the City/HOME-ARP Loan Note and the City/HOME-ARP Deed of Trust provide a means of enforcement by the City if Developer is in breach of its obligations hereunder and thereunder, including liens on the Property, use and deed restrictions and covenants running with the land [24 CFR 92.504(c)]. 25. Additional Terms. 25.1. Indemnity. To the fullest extent permitted by law, the Developer agrees to indemnify, hold harmless and defend the City and its elected officials, officers, governing members, employees, attorneys and agents (collectively, the "Indemnified Parties"), from and against any and all losses, damages, claims, actions, liabilities, costs and expenses of any and every conceivable nature, kind or character (including, without limitation, reasonable attorneys' fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject to under any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to: (a) these Restrictions or the execution or amendment thereof in connection with the transactions contemplated thereby; (b) Developer's ownership of a leasehold interest in or operation of the Property and the Project or any act or omission of the Developer or any of its agents, contractors, servants, employees or licensees in connection with the Property and the Project, the operation of the Project, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation, operation or rehabilitation of, the Project or any part thereof; (c) any lien or charge upon payments by the Developer to the City, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on the City in respect of any portion of the Project; (d) any violation of any applicable environmental law, rule or regulation with respect to, or the release of any toxic substance from, the Property or the Project or any part thereof, or (e) any untrue or misleading statement of a material fact by the Developer, which Developer knew or should have known to be untrue or misleading, that is contained in any Loan Document or any of the documents or instruments relating to said 20 W1SEPlace Pennanent Supportive Housing l.,ltHUd L AKr Jrroraao"iry Kestrieuonson i ransrer or rroper[y 13 — 165 3/7/2023 EXHIBIT 3 Loan Documents that the City relied upon in making the Loan; except to the extent such damages are caused by the active negligence or willful misconduct of such Indemnified Party. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Developer, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment and payment for of counsel selected by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement. 25.2. Time. Time is of the essence in these Restrictions. 25.3. Construction. Except where the context otherwise requires, words imparting the singular number shall include the plural number and vice versa, words imparting persons shall include firms, associations, partnerships and corporations, and words of either gender shall include the other gender. 25.4. Waiver of Jury Trial. Unless prohibited by Federal, State or local laws, each party to these Restrictions hereby expressly waives any right to trial by jury of any claim, demand, action or cause of action arising under any Loan Document or in any way connected with or related or incidental to the dealings of the parties hereto or any of them with respect to any Loan Document, or the transactions related thereto, in each case whether now existing or hereafter arising, and whether sounding in contract or tort or otherwise; and each party hereby agrees and consents that any such claim, demand, action or cause of action shall be decided by court trial without a jury, and that any party to these Restrictions may file an original counterpart or a copy of this section with any court as written evidence of the consent of the parties hereto to the waiver of their right to trial by jury. 25.5. Nonliability. By accepting or approving anything required to be performed or given to City under these Restrictions, City shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by City to anyone. 25.6. Obligations Unconditional and Independent. Notwithstanding the existence at any time of any obligation or liability of City to Developer, or any claim by Developer against City, in connection with these Restrictions or otherwise, Developer hereby waives any right it might otherwise have: (a) to offset any such obligation, liability or claim against Developer's obligations under these Restrictions; or (b) to claim that the existence of any such obligation, liability or claim excuses the nonperformance by Developer of any of its obligations under these Restrictions. 21 WlSSEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans er o ropey Rounc1 3 — 1 66 3/7/2023 EXHIBIT 3 26. Whenever this Agreement or any other Loan Document references a request that requires the approval or consent of a party, then each party shall act reasonably and in good faith in making any such request and responding to the request, but in no event shall either party be required to agree to terms that are not specified in this Agreement or waive any rights or privileges set forth herein. Whenever this Agreement references a party having "sole and absolute" discretion, then that party may exercise its discretion for any reason or no reason at all as that party may determine in its exclusive and independent judgment. 27. Notices. All notices, demands, approvals and other communications provided for in the Loan Documents shall be in writing and be delivered to the appropriate party by personal service or U.S. mail at its address as follows: If to Developer: During Construction: North Broadway Housing Partners LP c/o 17701 Cowan Ave., Suite 200 Irvine, CA 92614 Attention: Chief Executive Officer Following construction: North Broadway Housing Partners LP c/o Jamboree Housing Corporation 17701 Cowan Ave., Suite 200 Irvine, CA 92614 Attention: Asset Management With a copy to: Rutan & Tucker, LLP 18575 Jamboree Road, 9th Floor Irvine, CA 92612 Attention: Patrick D. McCalla Limited Partner Bank of America, N.A. 100 Federal Street MA5-100-04-11 Boston, MA 02110 Attention: Asset Management Facsimile: 617-346-2257 and Banc of America CDC Special Holding Company, Inc. 100 Federal Street MA5-100-04-11 Boston, MA 02110 Attention: Asset Management Facsimile: 617-346-2257 and Buchalter, a Professional Corporation 1000 Wilshire Blvd., Suite 1500 22 WlSSEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans er o ropey Rounc1 3 — 1 67 3/7/2023 EXHIBIT 3 Los Angeles, CA 90017-2457 Attn: Michael A. Williamson, Esq. If to Lessor: WISEPlace 1411 N. Broadway Santa Ana, CA 92706 Attn: Executive Director If to City: City of Santa Ana Executive Director (CDA) 20 Civic Center Plaza (M-26) P.O. Box 1988 Santa Ana, California 92702 With a copy to: City Attorney City of Santa Ana 20 Civic Center Plaza, 7th Floor (M-29) Santa Ana, California 92702 Addresses for notice may be changed as required by written notice to all other parties. All notices personally served shall be effective when actually received. All notices mailed shall be effective three (3) days after deposit in the U.S. Mail, postage prepaid. The foregoing notwithstanding, the non -receipt of any notice as the result of a change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such notice. {signatures on folloiving page} 23 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 168 3/7/2023 EXHIBIT 3 IN WITNESS WHEREOF, the parties hereto have caused these Affordability Restrictions on Transfer of Property to be executed on the date set forth hereinabove. ATTEST: CITY OF SANTA ANA Norma Orozco Kristine Ridge Clerk of the Council City Manager Dated: Dated: APPROVED AS TO FORM: SONIA R. CARVALHO, City Attorney By: a(zw-� Special Counsel to the City Best, Best & Krieger Dated: 2/23/23 Michael L. Garcia Executive Director Community Development Agency 24 WISEPIace Permanent Supportive Housing jttAKV E- I1CI or a i iry es actions on rans er o roper 3 — 69 3/7/2023 EXHIBIT 3 DEVELOPER NORTH BROADWAY HOUSING PARTNERS LP, a California limited partnership By: JHC-North Broadway LLC, a California limited liability company, its managing general partner By: Jamboree Housing Corporation, a California non-profit public benefit corporation, its managing member By: Name: Title: 25 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 170 3/7/2023 EXHIBIT 3 GROUND LESSOR JOINDER THE UNDERSIGNED ("Ground Lessor") is joining in the execution of these Affordability Restrictions on Transfer of Property ("Restrictions") to evidence its consent to these Restrictions and its agreement that the Restrictions bind the fee simple interest in the Property and the leasehold interest created by the Ground Lease, and further these Restrictions run with the land; provided that, by recording these Restrictions, the City, on behalf of itself and its successors, and assigns and on behalf of all other parties who, pursuant to the terms of these Restrictions, shall be entitled to the benefit thereof, shall be deemed to have agreed that: (i) Ground Lessor's execution of this joinder to the Restrictions shall not give rise to any personal liability or obligation under these Restrictions or any of the Loan Documents on the part of the Ground Lessor, its successors and assigns or any present or future officer, director, employee, trustee, member, agent or advisor of any of the foregoing, and (ii) all notices of default hereunder and under the other Loan Documents to the Trustor shall also be given to the Ground Lessor, and the Ground Lessor shall have the right to cure any such default on the terms and conditions set forth in the applicable Loan Document and Beneficiary shall accept or reject such cure on the same basis as if made by the Trustor. The address for notices to Ground Lessor is: WISEPIace 1411 N. Broadway Santa Ana, CA 92706 Attn: Executive Director Dated: , 2023 WISEPIace, a California nonprofit public benefit corporation Brateil Aghasi Executive Director 26 W1ySEPlace Permanent Supportive Housing Itor a i i yRestrictions on rans ero ropey Rounc13 — 171 3/7/2023 EXHIBIT 3 EXHIBIT A LEGAL DESCRIPTION 27 WlSSEPlace Permanent Supportive Housing It�/ ounce IttordabilityRestrictions on rans er o ropey 1 3 — 1 72 3/7/2023 EXHIBIT 3 All that certain real property situated in the County of Orange, State of California, described as follows: COMMENCING AT THE CENTERLINE INTERSECTION OF 15TH STREET AND SYCAMORE STREET AS SHOWN ON THE RECORD OF SURVEY NO 85-1067, RECORDED IN BOOK 111, PAGE 38, OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, SAID CENTERLINE OF SYCAMORE STREET BEING DESCRIBED IN THAT CERTAIN FINAL JUDGMENT, SUPERIOR COURT CASE NO. 23280, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 8, 1929 IN BOOK 227, PAGE 401 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, CALIFORNIA; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET SOUTH 000 14' 46" WEST, 90 FEET AND SOUTH 00° 04' 48" EAST, 213.42 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID CENTERLINE NORTH 890 58' 21" WEST, 312.17 FEET TO THE CENTERLINE OF BROADWAY, THENCE NORTHERLY ALONG SAID CENTERLINE OF BROADWAY NORTH 000 16' 10" EAST, 75.00 FEET TO THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN A DEED TO T. J. MULLINIX RECORDED OCTOBER 29, 1897 IN BOOK 33, PAGE 197 OF DEEDS OF SAID ORANGE COUNTY; THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF SAID DEED TO T. J. MULLINIX SOUTH 890 58' 10" EAST, 181.72 FEET TO THE WESTERLY LINE OF THE EAST 130.00 FEET OF THAT PORTION OF THE LAND ALLOTTED TO JACOB ROSS, AS DESCRIBED IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12,1869 IN BOOK `B", PAGE 410 OF JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES COUNTY, CALIFORNIA; THENCE NORTHERLY, ALONG SAID WESTERLY LINE NORTH 00° 04' 48" WEST, 77.08 FEET; THENCE SOUTH 89°58'10" EAST, 130.00 FEET TO THE ABOVE MENTIONED CENTERLINE OF SYCAMORE STREET; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET, SOUTH 00°04'48" EAST, 152.06 FEET TO THE POINT OF BEGINNING. SAID LAND IS SHOWN AS LOT 1 ON VOLUNTARY LOT MERGER NO. 2022-06 RECORDED JANUARY 26, 2023 AS INSTRUMENT NO. 2023000018589, OFFICIAL RECORDS OF SAID COUNTY. Assessor's Parcel Number: 398-523-04 City Council 13 — 173 3/7/2023 EXHIBIT 3 Exhibit G les Additional Terms and Conditions for Federal HOME -American Rescue Plan (HOME -ARP) and HOME Investment Partnership (HOME) Funds City Council 13 — 174 3/7/2023 EXHIBIT 3 EXHIBIT G ADDITIONAL TERMS AND CONDITIONS FEDERAL HOME INVESTMENT PARTNERSHIP — AMERICAN RESCUE PLAN (HOME -ARP) FUNDS The City has received an allocation of HOME -American Rescue Plan (HOME -ARP) funds from the United States Department of Housing and Urban Development ("HUD") under the Section 3205 of the American Rescue Plan Act of 2021 (P.L. 117-2)) ("ARP) to be implemented through the HOME Investment Partnerships Program (the "HOME Program") (42 U.S.C. §12701, et seq.,). On September 13, 2021, HUD issued Community Planning and Development (CPD) Notice: CPD-21-10 (the "HOME -ARP Notice") that implements the applicable statutory requirements and regulations for the use of HOME -ARP Funds. Specifically, the HOME -ARP funds must be used in accordance with both the requirements of the HOME -ARP Notice and the HOME Regulations (24 CFR Part 92), as applicable, including but not limited to 24 C.F.R. § 92.504, 92.305, 92.351, and 24 CFR 92.359, or as maybe amended from time to time. In addition to the requirements set forth in other provisions of the Agreement, Developer shall comply, and shall cause all Developer personnel and/or subcontractors to comply, with the following regulations and requirements to the extent applicable to the Project.' 1. Use of the HOME -ARP Funds. The Loan shall be used only for eligible costs (see, e.g., the HOME -ARP Notice, and 24 C.F.R. § 92.206, 92.214, 92.300(c), and 92.301), and any development work shall be completed within the times referred to in the Affordable Housing and Loan Agreement between City and Developer. The HOME -ARP Notice waives 24 CFR 92.206 to the extent that it conflicts with the eligible costs for eligible activities identified in the HOME -ARP Notice. In addition, HUD waives 24 CFR 92.206(d)(5) and imposes the requirement outlined in the HOME -ARP Notice. 2. Affordability. At initial lease up, there shall be a total of sixteen (16) units restricted for rental to a HOME -ARP Qualifying Population ("HOME -ARP Units"). The HOME - ARP Units shall meet the qualifying population and affordability requirements as outlined in the HOME -ARP Notice or this Agreement and the Affordability Restrictions on Transfer of Property, whichever is more restrictive. If the HOME -ARP Units do not meet the affordability requirements of the HOME -ARP Requirements for the specified time period, it shall be a breach of the Loan Agreement and Developer shall repay the Loan to City promptly upon demand by City, subject to all applicable notice and cure periods. In such event, Developer shall not be released from the ' This exhibit is a list and summary of some of the applicable legal requirements and is not a complete list of all Developer requirements. The description set forth next to a statute or regulation is a summary of certain provisions in the statute or regulation and is in no way intended to be a complete description or summary of the statute or regulation. In the event of any conflict between this summary and the requirements imposed by applicable laws, regulations, and requirements, the applicable laws, regulations, and requirements shall apply. WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOME�I2 ` IdDFNG A fITTONAL TERMS AND CONDTTIONS 13 — 175 3/7/2023 EXHIBIT 3 affordability and other covenants and restrictions set forth in this Agreement and the Regulatory Agreement, which shall continue to apply independent of the HOME -ARP Requirements. 3. Equal Opportunity and Nondiscrimination. a. Title VI of the Civil Rights Act of 1964, as amended, including Public Law 88-352 implemented in 24 CFR Part 1. This law provides in part that no person shall, on the grounds of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. In regard to the sale or lease of the Property, Developer shall cause or require a covenant running with the land to be inserted in the deed and leases prohibiting discrimination under this Title, and providing that City and the United States are beneficiaries of and entitled to enforce such covenants. Developer shall enforce such covenant and shall not itself so discriminate. b. Fair Housing Act, Title V111 of the Civil Rights Act of 1968, as amended, including Public Law 90-234. The Fair Housing Act provides in part that there shall be no discrimination in housing practices on the basis of race, color, religion, sex, and national origin. The Fair Housing Act was amended in 1988 to provide protections from discrimination in any aspect of the sale or rental of housing for families with children and persons with disabilities. The Fair Housing Act also establishes requirements for the design and construction of new rental or for -sale multi -family housing to ensure a minimum level of accessibility for persons with disabilities. C. Section 109 of Title I of the Housing and Community Development Act of 1974, as amended, including 42 U.S.C. 5301 et. seq., 42 U.S.C. 6101 et. seq., and 29 U.S.C. 794. This law provides in part that no person on the grounds of race, color, national origin, sex, or religion shall be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination under any activity funded in whole or part with funds under this Title. d. Section 104(b) of Title I of the Housing and Community Development Act of 1974, as amended, including 42 U.S.C. 5301 et. seq. This law provides in part that any grant under Section 106 shall be made only if the grantee certifies to the satisfaction of the Secretary of HUD that the grantee will, among other things, affirmatively further fair housing. e. Executive Order 11246, as amended. This order includes a requirement that grantees and subrecipients and their contractors and subcontractors not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. f. Executive Order 11063, as amended, including 24 CFR Part 107. This order and its implementing regulations include requirements that all actions necessary be taken to prevent discrimination because of race, color, religion, sex, or national origin in the use, occupancy, sale, leasing, rental, or other disposition of property assisted with Federal loans, advances, grants, or contributions. WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOME�ItP FtL4O NG ADPITIONAL TERMS AND CONDITIONS 13 — 176 3/7/2023 EXHIBIT 3 g. Section 504 of the Rehabilitation Act of 1973, as amended. This Act specifies in part that no otherwise qualified individual shall solely by reason of his or her disability or handicap be excluded from participation (including employment), denied program benefits, or subjected to discrimination under any program or activity receiving Federal assistance. Developer must ensure that its programs are accessible to and usable by persons with disabilities. h. The Americans with Disabilities Act (ADA) of 1990, as amended. This Act prohibits discrimination on the basis of disability in employment by state and local governments and in places of public accommodation and commercial facilities. The ADA also requires that facilities that are newly constructed or altered, by, on behalf of, or for use of a public entity, be designed and constructed in a manner that makes the facility readily accessible to and usable by persons with disabilities. The Act defines the range of conditions that qualify as disabilities and the reasonable accommodations that must be made to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for persons with disabilities. i. The Age Discrimination Act of 1975, as amended. This law provides in part that no person shall be excluded from participation in, be denied program benefits, or subjected to discrimination on the basis of age under any program or activity receiving federal assistance. j. EEO/AA Statement. Developer shall, in all solicitations or advertisements for employees placed by or on behalf of Developer, state that it is an Equal Opportunity or Affinnative Action employer. k. Minority/Women Business Enterprise. Developer will use its best efforts to afford small businesses and minority and women -owned business enterprises the maximum practicable opportunity to participate in the performance of the Agreement. As used in the Agreement, the tern "small business" means a business that meets the criteria set forth in Section 3(a) of the Small Business Act, as amended (15 U.S.C. 632), and "minority and women - owned business enterprise" means a business at least fifty-one percent (51 %) owned and controlled by minority group members or women. For the purpose of this definition, "minority group members" are Afro-Americans, Spanish-speaking, Spanish surnamed or Spanish -heritage Americans, Asian -Americans, and American Indians. Developer may rely on written representations by businesses regarding their status as minority and female business enterprises in lieu of an independent investigation. 1. Nondiscrimination. Developer shall comply with the federal requirements and nondiscrimination provisions in 24 C.F.R. § 92.350, which include requirements on nondiscrimination and equal opportunity, disclosure requirements, debarred, suspended or ineligible contractors, and maintaining a drug -free workplace. k. Violence Against Women Act. Developer shall comply with obligations to meet the Violence Against Women Act requirements set forth in 24 C.F.R. § 92.359, including but not limited to notice obligations and obligations under the emergency transfer plan, and any local requirements imposed by the City. WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOME�ItP FtL4O NG ADPITIONAL TERMS AND CONDITIONS 13 — 177 3/7/2023 EXHIBIT 3 4. Environmental. a. Air and Water. Developer shall comply with the following regulations insofar as they apply to the performance of the Agreement: Clean Air Act, 42 U.S.C. 7401, et seq.; Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251, et seq., as amended, 1318 relating to inspection, monitoring, entry, reports, and information, as well as other requirements specified in said Section 114 and Section 308, and all regulations and guidelines issued thereunder; and the U.S. Environmental Protection City regulations pursuant to 40 CFR Part 50, as amended. b. Flood Disaster Protection Act of 1973. Developer shall assure that for activities located in an area identified by FEMA as having special flood hazards, flood insurance under the National Flood Insurance Program is obtained and maintained. C. Lead -Based Paint. Developer shall comply with the Lead -Based Paint Regulations referenced in 24 C.F.R. 92.355, including 24 C.F.R. Part 35, et. al. d. Historic Preservation. Developer shall comply with the historic preservation requirements set forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470) and the procedures set forth in 36 C.F.R. Part 800, Advisory Council on Historic Preservation Procedures for Protection of Historic Properties and related laws and Executive Orders, insofar as they apply to the performance of this Agreement. In general, this requires concurrence from the State Historic Preservation Officer for all rehabilitation and demolition of historic properties that are fifty years old or older or that are included on a federal, state, or local historic property list. e. Limitation on Activities Pending Clearance. In accordance with 24 C.F.R. § 58.22 entitled "Limitations on activities pending clearance," neither a recipient nor any participant in the development process, including public or private nonprofit or for -profit entities, or any of their contractors, may commit HUD assistance under a program listed in 24 C.F.R. § 58.1(b) on an activity or project until HUD or the state has approved the recipient's Request for Release of Funds (RROF) and the related certifications have been approved. Neither a recipient nor any participant in the development process may commit non -HUD funds or undertake an activity or project that would have an adverse environmental impact or limit the choice of reasonable alternatives. Upon completion of environmental review or receipt of environmental clearance, City shall notify Developer. HUD funds shall not be utilized before this requirement is satisfied. The environmental review or violation of the provisions may result in approval, modification of cancellation of the Loan. If a project or activity is exempt under 24 C.F.R. § 58.34, or is categorically excluded (except in extraordinary circumstances) under 24 C.F.R. § 58.35(b), no RROF is required and the recipient may undertake the activity immediately after the City has documented its determination that each activity or project is exempt and meets the conditions specified for such exemption under this section by issuing a Notice to Proceed. 5. Uniform Administrative Requirements. Developer shall comply with applicable uniform administrative requirements as described in 24 C.F.R. § § 92.205. WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOME�ItP FtL4O NG ADPITIONAL TERMS AND CONDITIONS 13 — 178 3/7/2023 EXHIBIT 3 6. Other Program Requirements. Developer shall carry out each activity under the Agreement in accordance with all applicable federal laws and regulations described in the HOME - ARP Notice and Subpart H of 24 C.F.R. § 92 as applicable, except for City's responsibility for initiating the environmental review process under the provisions of 24 C.F.R. Part 58. 7. Project Requirements. Developer shall comply with all project requirements set forth in the HOME -ARP Notice and 24 C.F.R. §§ 92.250-92.258, as applicable in accordance with the type of project assisted. 8. Property Standards. Developer shall perform any construction work and maintain the Project units in compliance with the property standards in 24 C.F.R. § 92.251 and the lead -based paint requirements in 24 C.F.R. § 92 Part 35, Subparts A, B, J, K, M and R, as applicable. Developer shall comply with Broadband Infrastructure, as this term is defined in 24 CFR 5.100, requirements as stipulated in 24 CFR 92.25 1 (a)(2)(iv). 9. Records and Reports. Developer shall provide to City all records and reports relating to the Program Activities that may be reasonably requested by City in order to enable it to perform its recordkeeping and reporting obligations pursuant to the HOME -ARP and HOME Requirements, including 24 C.F.R. §§ 92.508 and 92.509. 10. Conflict of Interest. Developer will comply with 2 C.F.R. Part 200 and 24 C.F.R. 84.42, 85.36 and 92.356, as applicable, regarding the avoidance of conflict of interest, which provisions include (but are not limited to) the following: a. Developer shall maintain a written code or standards of conduct that shall govern the performance of its officers, employees or agents engaged in the award and administration of contracts supported by Federal funds. b. No employee, officer or agent of the Developer shall participate in the selection, or in the award, or administration of, a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. C. No covered persons who exercise or have exercised any functions or responsibilities with respect to HOME -ARP -assisted activities, or who are in a position to participate in a decision -making process or gain inside information with regard to such activities, may obtain a financial interest in any contract, or have a financial interest in any contract, subcontract, or agreement with respect to the HOME -ARP -assisted activity, or with respect to the proceeds from the HOME -ARP -assisted activity, either for themselves or those with whom they have business or immediate family ties, during their tenure or for a period of one (1) year thereafter. For purposes of this paragraph, a "covered person" includes any person who is an employee, agent, consultant, officer, or elected or appointed official of the Grantee, the Developer, or any designated public agency. 11. Affirmative Marketing. If the Loan will be used for housing containing 5 or more assisted units, Developer shall establish for City's review and approval a plan and procedures to affirmatively market the units. The objective of the plan shall be to provide information and attract eligible persons from all racial, ethnic and general groups in the housing market area to the WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOME�ItP FtL4O NG ADPITIONAL TERMS AND CONDITIONS 13 — 179 3/7/2023 EXHIBIT 3 available housing. In connection therewith, Developer shall perform those affirmative marketing responsibilities set forth in 24 C.F.R. § 92.351(a) and the marketing plan shall include the following: a. methods for informing the public, owners, and potential tenants about federal fair housing loans and the City's affirmative marketing policy; b. requirements and practices Developer must adhere to in order to carry out the affirmative marketing procedures and requirements; C. procedures to be used by Developer to inform and solicit applications from persons in the housing market area that are not likely to apply for the housing without special outreach; d. records that will be kept describing actions taken by Developer to affirmatively market units and records to assess the results of those actions; and e. a description of how Developer will assess the success of affirmative marketing actions and what corrective actions will be taken where affirmative marketing requirements are not met. 12. Displacement. Consistent with the other goals and objectives of Subpart H of 24 C.F.R. § 92, Developer shall take all reasonable steps to minimize the displacement of persons (families, individuals, businesses, nonprofit organizations, and farms) as a result of the Program Activities. 13. Debarment and Suspension. As required in 24 C.F.R. § 92.357, Developer shall comply with all debarment and suspension certifications. 14. Enforcement of Agreement. In addition to the other provisions set forth in the Agreement, City shall have the authority to enforce Developer's obligation to comply with the HOME -ARP Requirements. 15. Return of HOME -ARP Funds. a. HOME -ARP Construction Component. Upon the completion of the Project or earlier termination of the Agreement, Developer shall transfer to City any HOME -ARP Construction Component funds on hand for which expenses have not been incurred and any accounts receivable attributable to the use of HOME -ARP Construction Component funds. In addition to the foregoing, in the event the expenses for which any disbursement of HOME -ARP Construction Component funds are disbursed to Developer are not incurred by Developer within thirty (30) days after City's (or escrow holder's) disbursement to Developer, or such longer time as City approves in its sole discretion, City shall have the right to require that Developer immediately return the HOME -ARP Construction Component proceeds to City. Disbursement of proceeds by the City to an escrow holder shall not constitute disbursement to Developer for purposes of this provision. b. HOME -ARP Subsidy Reserve Component. The HOME -ARP Subsidy Reserve is intended to assure affordability of the HOME -ARP assisted units during the HOME- WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOME�ItP FtL4O NG ADPITIONAL TERMS AND CONDITIONS 13 — 180 3/7/2023 EXHIBIT 3 ARP Compliance Period. Unexpended funds in the HOME -ARP Subsidy Reserve at the end of the HOME -ARP Compliance Period must be returned to the City and deposited in the City's HOME account and recorded as HOME Program income. 16. Monitoring. Not less than once per year, City shall review Developer's activities and operations under the Agreement and Developer's compliance with the HOME -ARP Requirements. Such review may include an on -site inspection of the Project units (including unit interiors). If such an on -site inspection of the Project units is to be undertaken, City shall coordinate such inspection with Developer. The monitoring required pursuant to this paragraph shall be in compliance with the requirements of 24 C.F.R. § 92.504. 17. Tenant Participation Plan. Developer shall provide to City for approval the form of the lease agreement to be used for the rental units, which lease must be fair and provide for a grievance procedure. In addition, Developer shall provide to City for approval a plan that provides for tenant participation in management decisions. (24 C.F.R § 92.303.) 18 Anti -Lobbying Certification. By its execution of the Agreement, Developer hereby certifies that: i. No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. ii. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. iii. It will require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. This certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S.C. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. At the request of City, Developer shall execute a separate document that contains the certifications set forth above. WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOME�ItP FtL4O NG ADPITIONAL TERMS AND CONDITIONS 13 — 181 3/7/2023 EXHIBIT 3 19. Drug -Free Workplace Requirements. Developer shall comply with and be subject to the requirements of the federal drug -free workplace requirements, which include the following actions be taken: i. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition. ii. Establishing an ongoing drug -free awareness program to inform employees about: (a) the dangers of drug abuse in the work place; (b) the grantee's policy of maintaining a drug -free workplace; (c) any available drug counseling, rehabilitation, and employee assistance programs; and (d) the penalties that may be imposed upon employees for drug abuse violations occurring in the workplace. iii. Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (i). iv. Notifying the employee in the statement required by paragraph (i) that, as a condition of employment under the grant, the employee will: (a) abide by the terms of the statement; and (b) notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction. V. Notifying the agency in writing, within ten calendar days after receiving notice under sub -paragraph (iv) (b) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant. Vt. Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (iv)(b), with respect to any employee who is so convicted: (a) taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (b) requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State or local health, law enforcement, or other appropriate agency. vii. Making a good faith effort to continue to maintain a drug -free workplace through implementation of paragraphs (i), (ii), (iii), (iv), (v), and (vi). 20. Procurement. If applicable, Developer will comply with the procurement standards under 24 CFR 85.36 for governmental subrecipients and 24 CFR 84.40-48 for subrecipients that are non-profit organizations. Developer shall comply with all existing and future City policies concerning the purchase of equipment. WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOME�ItP FtL4O NG ADPITIONAL TERMS AND CONDITIONS 13 — 182 3/7/2023 EXHIBIT 3 21. Hatch Act. The Developer agrees that no funds provided, nor personnel employed under this Agreement, shall be in any way or to any extent engaged in the conduct of political activities in violation of Title V United States Code Section 1501 et seq. 22. Labor Provisions. a. Section 3 of the Housing and Community Development Act of 1968. Developer shall comply with and cause its contractors and subcontractors to comply with the requirements of Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. § 1701u), the HUD regulations issued pursuant thereto at 24 C.F.R, Part 135, and any applicable rules and orders of HUD issued thereunder. The Section 3 clause, set forth in 24 C.F.R § 135.38 provides: i. The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. § 170lu (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. ii. The parties to this contract agree to comply with HUD's regulations in 24 C.F.R. Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. iii. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. iv. The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 C.F.R. Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 C.F.R. Part 135. The contractor will not subcontract with any subcontractor where the WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOMF�ItP FtL4O NG ADPITIONAL TERMS AND CONDITIONS 13 — 183 3/7/2023 EXHIBIT 3 contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R. Part 135. V. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 C.F.R. Part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 C.F.R. Part 135. vi. Noncompliance with HUD's regulations in 24 C.F.R Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. Developer shall abide by the Section 3 clause set forth above and will also cause this Section 3 clause to be inserted in all contracts relating to the construction of the Project. 23. Compliance with 2 C.F.R. Part 200. All costs must comply with the Cost Principles contained in subpart E of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards at 2 CFR part 200, as amended (Uniform Administrative Requirements). WISEPLACE PERMANENT SUPPORTIVE HOUSING EXHIBIT G HOME�ItP FtL4O NG ADPITIONAL TERMS AND CONDITIONS 13 — 184 3/7/2023 EXHIBIT 4 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Davis Wright Tremaine LLP 865 S. Figueroa Street Suite 2400 Los Angeles, California 90017 Attention: Nancy Clapp, Esq. SPACE ABOVE THIS LINE FOR RECORDER'S USE SUBORDINATION AGREEMENT (City of Santa Ana) This SUBORDINATION AGREEMENT (this "Agreement") dated as of , 2023, is executed by and among (i) BANK OF AMERICA, N.A., a national banking association ("Senior Lender"), (ii) CITY OF SANTA ANA, a charter city and municipal corporation ("Subordinate Lender"), (iii) NORTH BROADWAY HOUSING PARTNERS LP, a California limited partnership ("Borrower"), and (iv) WISEPLACE, a California nonprofit public benefit corporation ("Ground Lessor", and together with Borrower, "Trustor"). RECITALS: A. Senior Lender has determined to make a mortgage loan to the Borrower in the maximum aggregate principal amount of $ (the "Senior Loan") to provide for the financing of a 48-unit rental housing development project (the "Project") on certain real property more particularly described on Exhibit A attached hereto (the "Land"). The Senior Loan will be made pursuant to that certain Construction Loan Agreement dated as of even date herewith (as amended from time to time, the "Senior Loan Agreement"), between Senior Lender, as lender, and Borrower, as borrower. The Senior Loan is evidenced by, among other things, that certain Promissory Note dated as of even date herewith (the "Senior Note"), made by Borrower to the order of Senior Lender in the face principal amount of $ B. To secure Borrower's obligations under the Senior Loan Agreement and the Senior Note, the Borrower is executing and delivering that certain Construction Deed of Trust, Assignment, Security Agreement and Fixture Filing dated as of even date herewith (as amended from time to time, the "Senior Security Instrument"), executed by Borrower for the benefit of Senior Lender, encumbering, among other things, Borrower's leasehold interest in the Land, Ground Lessor's fee simple interest in the Land, and certain personal property more particularly described therein (collectively, the "Mortgaged Property"), which is being recorded in the Official Records of the County of Orange, State of California (the "Official Records"), substantially concurrently herewith. Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 1 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO ify ounce - 18 / EXHIBIT 4 C. The Senior Loan Agreement, the Senior Note, the Senior Security Instrument and all of the other "Loan Documents" (as defined in the Senior Loan Agreement) are collectively referred to herein as the "Senior Loan Documents". D. Borrower has requested Senior Lender to permit that certain subordinate loan in the amount of ///[$5,256,327]/// (the "Subordinate Loan") from Subordinate Lender to Borrower and to allow the Subordinate Loan to be secured by mortgage liens against the Mortgaged Property. The Subordinate Loan is being made pursuant to that certain HOME -American Rescue Plan (HOME -ARP) Loan Agreement dated as of March , 2023 (the "Subordinate Loan Agreement"), by and between Borrower and Subordinate Lender. The Subordinate Loan is evidenced by that certain City HOME -ARP Loan Note Secured By Subordinated Deed of Trust to the City of Santa Ana, California dated as of March , 2023 (the "Subordinate Note"), executed by Borrower to the order of Subordinate Lender in the face principal amount of ///[$5,256,327]/// and secured by that certain City HOME -ARP Deed of Trust and Assignment of Rents dated as of March , 2023 (the "Subordinate Mortgage"), executed by Borrower for the benefit of Subordinate Lender and recorded in the Official Records substantially concurrently herewith. In connection with the Subordinate Loan, Borrower and Subordinate Lender will also enter into that certain Affordability Restrictions on Transfer of Property dated as of March , 2023 (the "Unsubordinated City Regulatory Agreement") and recorded in the Official Records substantially concurrently herewith. Borrower and Subordinate Lender also entered into that certain Density Bonus Agreement dated as of June 21, 2022 (the "Density Bonus Agreement"), by and between Borrower and Subordinate Lender and recorded in the Official Records on June 29, 2022 under Instrument No. 2022000231667. E. Senior Lender has agreed to permit the Subordinate Loan and to allow the subordinate mortgage liens against the Mortgaged Property subject to all of the conditions contained in this Agreement. AGREEMENTS: NOW, THEREFORE, in order to induce the Senior Lender to permit the Subordinate Lender to make the Subordinate Loan to Borrower and to place a subordinate mortgage lien against the Mortgaged Property, and in consideration thereof, Senior Lender, Subordinate Lender and Trustor agree as follows: 1. Recitals. The recitals set forth above are incorporated herein by reference. 2. Definitions. In addition to the terms defined in the Recitals to this Agreement, for purposes of this Agreement the following terms have the respective meanings set forth below: "Affiliate" means, when used with respect to a Person, any corporation, partnership, joint venture, limited liability company, limited liability partnership, trust or individual Controlled by, under Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 2 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO incefy ou— 1'8 / EXHIBIT 4 common Control with, or which Controls such Person, and in all cases any other Person that holds fifty percent (50%) or more of the ownership interests in such Person. "Borrower" means the Person named as such in the first paragraph on page 1 of this Agreement, any successor or assign of Borrower, including without limitation, a receiver, trustee or debtor -in - possession and any other Person (other than Senior Lender) who acquires title to the Mortgaged Property after the date of this Agreement. "Business Day" means any day other than (a) a Saturday, (b) a Sunday, (c) a day on which Senior Lender or Subordinate Lender is not open for business, or (d) a day on which the Federal Reserve Bank of New York is not open for business. "Condemnation Action" means any action or proceeding, however characterized or named, relating to any condemnation or other taking, or conveyance in lieu thereof, of all or any part of the Mortgaged Property, whether direct or indirect. "Control" (including with correlative meanings, the terms "Controlling," "Controlled by" and "under common Control with"), as applied to any entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or operations of such entity, whether through the ownership of voting securities, ownership interests or by contract or otherwise. "Default Notice" means: (a) a copy of any written notice from Senior Lender to Borrower and Subordinate Lender stating that a Senior Loan Default has occurred under the Senior Loan Documents; or (b) a copy of any written notice from Subordinate Lender to Borrower and Senior Lender stating that a Subordinate Loan Default or a default under any Unsubordinated City Regulatory Agreement or the Density Bonus Agreement has occurred, as applicable. Each Default Notice shall specify the default upon which such Default Notice is based. "Official Records" means the Official Records of Orange County, California. "Person" means an individual, an estate, a trust, a corporation, a partnership, a limited liability company or any other organization or entity (whether governmental or private). "Senior Lender" means the Person named as such in the first paragraph on Page 1 of this Agreement, its successors and assigns and any other Person who becomes the legal holder of the Senior Loan after the date of this Agreement. "Senior Loan Agreement" has the meaning set forth in Recital A, above. "Senior Loan Default" means the occurrence of an "Event of Default" as that term is defined in the Senior Loan Documents. "Senior Loan Documents" has the meaning set forth in Recital C, above. "Senior Note" has the meaning set forth in Recital A, above. Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 3 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 No ify ounce - 18 / EXHIBIT 4 "Senior Security Instrument" has the meaning set forth in Recital B, above. "Subordinate Assignment" means that certain Assignment of Lessor's Interest in Leases, Rents and Profits dated as of , 2023, executed by Borrower for the benefit of Lender, which is recording in the Official Records substantially concurrently herewith, encumbering the Mortgaged Property as security for the Subordinate Loan. "Subordinate Lender" means the Person named as such in the first paragraph on page I of this Agreement, any successor or assign of Subordinate Lender, or any other Person who becomes the legal holder of the Subordinate Note after the date of this Agreement. "Subordinate Loan Agreement" has the meaning set forth in Recital D, above. "Subordinate Loan Default" means a default by Borrower in performing or observing any of the terms, covenants or conditions in the Subordinate Loan Documents to be performed or observed by it, which continues beyond any applicable period provided in the Subordinate Loan Documents for curing the default. "Subordinate Loan Documents" means the Subordinate Loan Agreement, Subordinate Note, the Subordinate Mortgage, the Subordinate Assignment, any UCC-1 financing statement filed showing Borrower, as debtor, and Subordinate Lender, as secured party, filed in connection with the Subordinate Loan, and all other documents evidencing, securing or otherwise executed and delivered in connection with the Subordinate Loan, but specifically excluding the Unsubordinated City Regulatory Agreement and the Density Bonus Agreement. "Subordinate Loan" has the meaning set forth in Recital D, above. "Subordinate Mortgage" has the meaning set forth in Recital D, above. "Subordinate Note" has the meaning set forth in Recital D, above. "Unsubordinated City Regulatory Agreement" has the meaning set forth in Recital D, above. 3. Permission to Place Mortgage Lien Against Mortgaged Property. Senior Lender agrees, notwithstanding the prohibition against inferior liens on the Mortgaged Property contained in the Senior Loan Documents and subject to the provisions of this Agreement, to permit Subordinate Lender to record the Subordinate Mortgage, the Unsubordinated City Regulatory Agreement, and other recordable Subordinate Loan Documents against the Mortgaged Property to secure Borrower's obligation to repay the Subordinate Note and all other obligations, indebtedness and liabilities of Borrower to Subordinate Lender under and in connection with the Subordinate Loan. Such permission is subject to the condition that each of the representations and warranties made by the Borrower and the Subordinate Lender in Section 4 is true and correct on the date of this Agreement and on the date on which the proceeds of the Subordinate Loan are disbursed to the Borrower. If any of the representations and warranties made by the Borrower and the Subordinate Lender in Section 4 is not true and correct on both of those dates, the Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 4 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO incefy ou— 1'8 / EXHIBIT 4 provisions of the Senior Loan Documents applicable to unpermitted liens on the Mortgaged Property shall apply. 4. Borrower's and Subordinate Lender's Representations and Warranties. Borrower and Subordinate Lender each makes the following representations and warranties to Senior Lender: (a) Subordinate Loan Documents. Each Subordinate Loan is evidenced by the Subordinate Note and is secured by the Subordinate Mortgage, the Subordinate Loan Agreement and the Subordinate Loan Documents. (b) Relationship of Borrower to Subordinate Lender and Senior Lender. The Subordinate Lender is not an Affiliate of the Borrower and is not in possession of any facts which would lead it to believe that the Senior Lender is an Affiliate of the Borrower. (c) Term. The term of the Subordinate Note does not end before the stated term of the Senior Note. (d) Subordinate Loan Documents and Unsubordinated City Regulatory Agreement. The executed Subordinate Loan Documents and the Unsubordinated City Regulatory Agreement are substantially in the same forms as those submitted to, and approved by, Senior Lender prior to the date of this Agreement. Upon execution and delivery of the Subordinate Loan Documents and the Unsubordinated City Regulatory Agreement, Borrower shall deliver to Senior Lender an executed copy of each of the Subordinate Loan Documents and the Unsubordinated City Regulatory Agreement, certified to be true, correct and complete. 5. Deliveries. Upon execution and delivery of the Senior Loan Documents, Borrower shall deliver to Subordinate Lender an executed copy of each of the Senior Loan Documents, certified to be true, correct and complete. 6. Terms of Subordination. (a) Agreement to Subordinate. Senior Lender and Subordinate Lender agree that (1) the Unsubordinated City Regulatory Agreement and the Density Bonus Agreement shall remain senior to the lien of the Senior Security Instrument and all other Senior Loan Documents, (2) subject to the terms of paragraph (c) below in this Section 6, the indebtedness evidenced by the Subordinate Loan Documents is and shall be subordinated in right of payment, to the extent and in the manner provided in this Agreement, to Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 5 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO incefy ou— 1'8 / EXHIBIT 4 the prior payment in full of the Indebtedness evidenced by the Senior Loan Documents, and (3) the liens, terms, covenants and conditions of the Subordinate Mortgage and the other Subordinate Loan Documents are and shall be subject and subordinate in all respects to the liens, terms, covenants and conditions of the Senior Security Instrument and the other Senior Loan Documents and to all advances heretofore made or which may hereafter be made pursuant to the Senior Security Instrument and the other Senior Loan Documents (including but not limited to, all sums advanced for the purposes of (1) protecting or further securing the lien of the Senior Security Instrument, curing defaults by Borrower under the Senior Loan Documents or for any other purpose expressly permitted by the Senior Loan Documents, or (2) constructing, renovating, repairing, furnishing, fixturing or equipping the Mortgaged Property). (b) Subordination of Subrogation Rights. Subordinate Lender agrees that if, by reason of its payment of real estate taxes or other monetary obligations of Borrower, or by reason of its exercise of any other right or remedy under the Subordinate Loan Documents or the Unsubordinated City Regulatory Agreement, it acquires by right of subrogation or otherwise a lien on the Mortgaged Property which (but for this subsection) would be senior to the lien of the Senior Security Instrument, then, in that event, such lien shall be subject and subordinate to the lien of the Senior Security Instrument. (c) Payments Before Senior Loan Default. Notwithstanding anything to the contrary in this Agreement, until Subordinate Lender receives a Default Notice (or otherwise acquires actual knowledge) of a Senior Loan Default, Subordinate Lender shall be entitled to retain for its own account all payments made under or pursuant to the Subordinate Loan Documents. (d) Payments After Senior Loan Default. Borrower agrees that, after it receives a Default Notice (or otherwise acquires knowledge) of a Senior Loan Default, it will not make any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorneys' fees, or any other sums secured by the Subordinate Loan Documents) without Senior Lender's prior written consent. Subordinate Lender agrees that, after it receives a Default Notice from Senior Lender with written instructions directing Subordinate Lender not to accept payments from Borrower on account of the Subordinate Loan, it will not accept any payments under or pursuant to the Subordinate Loan Documents (including but not limited to principal, interest, additional interest, late payment charges, default interest, attorneys' fees, or any other sums secured by the Subordinate Loan Documents) without Senior Lender's prior written consent or until the Senior Loan has been repaid in full. If Subordinate Lender receives written notice from Senior Lender that the Senior Loan Default which gave rise to Subordinate Lender's obligation not to accept payments has been cured, waived, or otherwise suspended by Senior Lender, the restrictions on payment to Subordinate Lender in this Section 6 shall terminate, and Senior Lender shall have no right to any subsequent payments made to Subordinate Lender by Borrower prior to Subordinate Lender's receipt of a new Default Notice from Senior Lender in accordance with the provisions of this Section 6(d). Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 6 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO inafy Du — 1,9 / EXHIBIT 4 (e) Remitting Subordinate Loan Payments to Senior Lender. If, after Subordinate Lender receives a Default Notice from Senior Lender in accordance with Section 6(d), Subordinate Lender receives any payments under the Subordinate Loan Documents, Subordinate Lender agrees that such payment or other distribution will be received and held in trust for Senior Lender and unless Senior Lender otherwise notifies Subordinate Lender in writing, will be promptly remitted, in kind to Senior Lender, properly endorsed to Senior Lender, to be applied to the principal of, interest on and other amounts due under the Senior Loan Documents in accordance with the provisions of the Senior Loan Documents. By executing this Agreement, Borrower specifically authorizes Subordinate Lender to endorse and remit any such payments to Senior Lender, and specifically waives any and all rights to have such payments returned to Borrower or credited against the Subordinate Loan. Borrower and Senior Lender acknowledge and agree that payments received by Subordinate Lender, and remitted to Senior Lender under this Section 6, shall not be applied or otherwise credited against the Subordinate Loan, nor shall the tender of such payment to Senior Lender waive any Subordinate Loan Default which may arise from the inability of Subordinate Lender to retain such payment or apply such payment to the Subordinate Loan. (f) Notice of Payment from Other Persons. Subordinate Lender agrees to notify (telephonically or via email, followed by written notice) Senior Lender of Subordinate Lender's receipt from any Person other than Borrower of a payment with respect to Borrower's obligations under the Subordinate Loan Documents, promptly after Subordinate Lender obtains knowledge of such payment. (g) Agreement Not to Commence Bankruptcy Proceeding. Subordinate Lender agrees that during the term of this Agreement it will not commence, or join with any other creditor in commencing any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings against or with respect to Borrower, without Senior Lender's prior written consent. 7. Default Under Subordinate Loan Documents, Unsubordinated City Regulatory Agreement or Density Bonus Agreement. (a) Notice of Subordinate Loan Default and Cure Rights. During the term of this Agreement, Subordinate Lender shall deliver to Senior Lender a Default Notice within five (5) Business Days in each case where Subordinate Lender has given a Default Notice to Borrower. Failure of Subordinate Lender to send a Default Notice to Senior Lender shall not prevent the exercise of Subordinate Lender's rights and remedies under the Subordinate Loan Documents, the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement, as applicable, subject to the provisions of this Agreement. Senior Lender shall have the right, but not the obligation, to cure any Subordinate Loan Default or any default under the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement within sixty (60) days following the date of such notice; provided, however that Subordinate Lender shall be Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 7 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO inafy Du — 1'9 / EXHIBIT 4 entitled, during such sixty (60) day period, to continue to pursue its rights and remedies under the Subordinate Loan Documents, the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement, as applicable, to the extent permitted under Section 7(b). All amounts paid by Senior Lender in accordance with the Senior Loan Documents to cure a Subordinate Loan Default or a default under the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement shall be deemed to have been advanced by Senior Lender pursuant to, and shall be secured by, the Senior Loan Agreement and the Senior Security Instrument. (b) Subordinate Lender's Agreement to Standstill. If a Subordinate Loan Default or a default under any Unsubordinated City Regulatory Agreement occurs and is continuing, the Subordinate Lender agrees that, without the Senior Lender's prior written consent, it will not accelerate the Subordinate Loans, commence foreclosure proceedings with respect to the Mortgaged Property, collect rents, appoint (or seek the appointment of) a receiver or institute any other collection or enforcement action. (c) Cross Default. Trustor and Subordinate Lender agree that a Subordinate Loan Default and/or a default under the Unsubordinated City Regulatory Agreement shall constitute a Senior Loan Default under the Senior Loan Documents and Senior Lender shall have the right to exercise all rights or remedies under the Senior Loan Documents in the same manner as in the case of any other Senior Loan Default. If Subordinate Lender notifies Senior Lender in writing that any Subordinate Loan Default or of any default under the Unsubordinated City Regulatory Agreement of which Senior Lender has received a Default Notice has been cured or waived, as determined by Subordinate Lender in its sole discretion, then provided that Senior Lender has not conducted a sale of the Mortgaged Property pursuant to its rights under the Senior Loan Documents, any Senior Loan Default under the Senior Loan Documents arising solely from such Subordinate Loan Default or default under the Unsubordinated City Regulatory Agreement shall be deemed cured, and the Senior Loan shall be reinstated, provided, however, that Senior Lender shall not be required to return or otherwise credit for the benefit of Borrower any default rate interest or other default related charges or payments received by Senior Lender during such Senior Loan Default. 8. Default Under Senior Loan Documents. (a) Notice of Senior Loan Default and Cure Rights. Senior Lender shall deliver to Subordinate Lender a Default Notice within five (5) Business Days in each case where Senior Lender has given a Default Notice to Borrower. Failure of Senior Lender to send a Default Notice to Subordinate Lender shall not prevent the exercise of Senior Lender's rights and remedies under the Senior Loan Documents, subject to the provisions of this Agreement. The Subordinate Lender shall have the right, but not the obligation, to cure any such Senior Loan Default as provided below. Subordinate Lender shall have up to thirty (30) days from the date of the Default Notice to cure any monetary default under the Senior Loan Documents; provided, however, that the Senior Lender shall be entitled during such 30-day period to continue to pursue its remedies with respect to the Mortgaged Property. Subordinate Lender shall have up to Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 8 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO incefy ou— 1'9 / EXHIBIT 4 sixty (60) days from the date of the Default Notice to cure a non -monetary default if during such 60- day period Subordinate Lender keeps current all payments required by the Senior Loan Documents. In the event that such a non -monetary default creates an unacceptable level of risk relative to the Mortgaged Property, or Senior Lender's secured position relative to the Mortgaged Property, as determined by Senior Lender in its sole discretion, then Senior Lender may exercise during such 60- day period all available rights and remedies to protect and preserve the Mortgaged Property and the rents, revenues and other proceeds from the Mortgaged Property. All amounts paid by the Subordinate Lender to the Senior Lender to cure a Senior Loan Default shall be deemed to have been advanced by the Subordinate Lender pursuant to, and shall be secured by the lien of, the Subordinate Mortgage. (b) Cross Default. Subordinate Lender agrees that, notwithstanding any contrary provision contained in the Subordinate Loan Documents, a Senior Loan Default shall not constitute a default under the Subordinate Loan Documents (if no other default has occurred under the Subordinate Loan Documents) until either (1) Senior Lender has accelerated the maturity of the Senior Loan, or (2) Senior Lender has taken affirmative action to exercise its rights under the Senior Loan Documents to collect rent, to appoint (or seek the appointment of) a receiver or to foreclose on (or to exercise a power of sale contained in) the Senior Loan Documents. At any time after a Senior Loan Default is determined to constitute a default under the Subordinate Loan Documents, Subordinate Lender shall be permitted to pursue its remedies for default under the Subordinate Loan Documents, subject to the restrictions and limitations of this Agreement. If at any time Borrower cures any Senior Loan Default to the satisfaction of Senior Lender, as evidenced by written notice from Senior Lender to Subordinate Lender, any default under the Subordinate Loan Documents arising from such Senior Loan Default shall be deemed cured and the Subordinate Loan shall be retroactively reinstated as if such Senior Loan Default had never occurred. 9. Conflict. Trustor, Senior Lender and Subordinate Lender each agrees that, in the event of any conflict or inconsistency between the terms of the Senior Loan Documents, the Subordinate Loan Documents, the Unsubordinated City Regulatory Agreement, the Density Bonus Agreement and the terms of this Agreement, the terms of this Agreement shall govern and control solely as to the following: (a) the relative priority of the security interests of Senior Lender and Subordinate Lender in the Mortgaged Property; (b) the timing of the exercise of remedies by Senior Lender and Subordinate Lender under the Senior Loan Documents and the Subordinate Loan Documents and/or the Unsubordinated City Regulatory Agreement, respectively; and (c) solely as between Senior Lender and Subordinate Lender, the notice requirements, cure rights, and the other rights and obligations which Senior Lender and Subordinate Lender have agreed to as expressly provided in this Agreement. Trustor acknowledges that the terms and provisions of this Agreement shall not, and shall not be deemed to: extend Trustor's time to cure any Senior Loan Default or Subordinate Loan Default and/or default under the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement, as the case may be; give Trustor the right to notice of any Senior Loan Default or Subordinate Loan Default and/or default under the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement, as the case may be other than that, if any, Subordination Agreement (City of Santa Ana) Form 6456 Page 9 Fannie Mae 08-13 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO incefy ou— T / EXHIBIT 4 provided, respectively under the Senior Loan Documents or the Subordinate Loan Documents, Unsubordinated City Regulatory Agreement and/or the Density Bonus Agreement; or create any other right or benefit for Trustor as against Senior Lender or Subordinate Lender. 10. Rights and Obligations of Subordinate Lender Under the Subordinate Loan Documents and of Senior Lender under the Senior Loan Documents. Subject to each of the other terms of this Agreement, all of the following provisions shall supersede any provisions of the Subordinate Loan Documents covering the same subject matter: (a) Protection of Security Interest. Subordinate Lender shall not, without the prior written consent of Senior Lender in each instance, take any action which has the effect of increasing the indebtedness outstanding under, or secured by, the Subordinate Loan Documents, except that Subordinate Lender shall have the right to advance funds to cure Senior Loan Defaults pursuant to Section 8(a) and advance funds pursuant to the Subordinate Loan Documents for the purpose of paying real estate taxes and insurance premiums, making necessary repairs to the Mortgaged Property and curing other defaults by Borrower under the Subordinate Loan Documents. (b) Condemnation or Casualty. Following the occurrence of (1) a Condemnation Action, or (2) a fire or other casualty resulting in damage to all or a portion of the Mortgaged Property (collectively, a "Casualty"), at any time or times when the Senior Security Instrument remains a lien on the Mortgaged Property the following provisions shall apply: (A) Subordinate Lender hereby agrees that its rights (under the Subordinate Loan Documents or otherwise) to participate in any proceeding or action relating to a Condemnation Action or a Casualty, or to participate or join in any settlement of, or to adjust, any claims resulting from a Condemnation Action or a Casualty shall be and remain subject and subordinate in all respects to Senior Lender's rights under the Senior Loan Documents with respect thereto, and Subordinate Lender shall be bound by any settlement or adjustment of a claim resulting from a Condemnation Action or a Casualty made by Senior Lender; provided, however, this subsection or anything contained in this Agreement shall not limit the rights of Subordinate Lender to file any pleadings, documents, claims or notices with the appropriate court with jurisdiction over the proposed Condemnation Action or Casualty; and (B) all proceeds received or to be received on account of a Condemnation Action or a Casualty, or both, shall be applied (either to payment of the costs and expenses of repair and restoration or to payment of the Senior Loan) in the manner determined by Senior Lender in its sole discretion; provided, however, that if Senior Lender is entitled to and elects to apply such proceeds to payment of the principal of, interest on and other amounts payable under the Senior Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 10 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO inafy Du — 1'9 / EXHIBIT 4 Loan, any proceeds remaining after the satisfaction in full of the principal of, interest on and other amounts payable under the Senior Loan shall be paid to, and may be applied by, Subordinate Lender in accordance with the applicable provisions of the Subordinate Loan Documents, provided however, Senior Lender agrees to consult with Subordinate Lender in determining the application of Casualty proceeds, provided further however that in the event of any disagreement between Senior Lender and Subordinate Lender over the application of Casualty proceeds, the decision of Senior Lender, in its sole discretion, shall prevail. (c) Insurance. Subordinate Lender agrees that all original policies of insurance required pursuant to the Senior Security Instrument shall be held by Senior Lender. The preceding sentence shall not preclude Subordinate Lender from requiring that it be named as a loss payee, as its interest may appear, under all policies of property damage insurance maintained by Borrower with respect to the Mortgaged Property, provided such action does not affect the priority of payment of the proceeds of property damage insurance under the Senior Security Instrument, or that it be named as an additional insured under all policies of liability insurance maintained by Borrower with respect to the Mortgaged Property. (d) No Modification of Subordinate Loan Documents or Unsubordinated City Regulatory Agreement. Borrower and Subordinate Lender each agree that, until the principal of, interest on and all other amounts payable under the Senior Loan Documents have been paid in full, it will not, without the prior written consent of Senior Lender in each instance, increase the amount of any Subordinate Loan, increase the required payments due under any Subordinate Loan, decrease the term of any Subordinate Loan, increase the interest rate on any Subordinate Loan, or otherwise amend any Subordinate Loan terms or the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement in a manner that creates an adverse effect upon Senior Lender under the Senior Loan Documents. Any unauthorized amendment of the Subordinate Loan Documents, the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement, or assignment of Subordinate Lender's interest in any Subordinate Loan without Senior Lender's consent, shall be void ab initio and of no effect whatsoever and Subordinate Lender agrees that it shall not transfer or assign the Subordinate Loan or any Subordinate Loan Document without the prior written consent of the Senior Lender. 11. Modification or Refinancing of Senior Loan. Subordinate Lender consents to any agreement or arrangement in which Senior Lender waives, postpones, extends, reduces or modifies any provisions of the Senior Loan Documents, including any provision requiring the payment of money. Subordinate Lender further agrees that its agreement to subordinate hereunder shall extend to any amendments or additional documents executed in connection with any new mortgage debt which is for the purpose of refinancing all or any part of the Senior Loan (including reasonable and necessary costs associated with the closing and/or the refinancing) and, in the event of new mortgage debt, Subordinate Lender shall execute Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 11 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO inafy Du — 1*9 / EXHIBIT 4 and deliver to Senior Lender a new subordination agreement on the same terms and conditions as this Subordination Agreement; and that all the terms and covenants of this Agreement shall inure to the benefit of any holder of any such refinanced debt; and that all references to the Senior Loan, the Senior Note, the Senior Loan Agreement, the Senior Security Instrument, the Senior Loan Documents and Senior Lender shall mean, respectively, the refinance loan, the refinance note loan agreement, the mortgage securing the refinance note, all documents evidencing securing or otherwise pertaining to the refinance note and the holder of the refinance note. 12. Default by Subordinate Lender or Senior Lender. If Subordinate Lender or Senior Lender defaults in performing or observing any of the terms, covenants or conditions to be performed or observed by it under this Agreement, the other, non -defaulting lender shall have the right to all available legal and equitable relief. 13. Special Provisions Regarding Unsubordinated City Regulatory Agreement. (a) Transfers. Notwithstanding anything set forth in the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement to the contrary, nothing in the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement shall be deemed to restrict or limit, or require the consent of Subordinate Lender to, the following: (i) any foreclosure or deed in lieu of foreclosure of the Senior Security Instrument by Senior Lender or its successor, assigns, or nominee (a "Foreclosure Action"), or (ii) the first subsequent transfer by Senior Lender or its successors, assigns or nominee following a Foreclosure Action. Neither the successor owner initially acquiring title to the Mortgaged Property as a result of a Foreclosure Action, nor its immediate successor in interest, shall be subject to any of the limitations upon creation of indebtedness nor creation of any lien securing indebtedness set forth in the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement; provided that any subsequent mortgagee or lienholder with respect to such indebtedness shall agree that in the event of foreclosure or deed in lieu of foreclosure, the transferee under such foreclosure agrees that it will take subject to the Unsubordinated City Regulatory Agreement and the Density Bonus Agreement; and provided further that all other subsequent encumbrances shall be subject to Subordinate Lender's approval under the Unsubordinated City Regulatory Agreement and the Density Bonus Agreement. Any sale, assignment or transfer of the Mortgaged Property following a transfer pursuant to a Foreclosure Action (other than the fast transfer thereafter) shall be subject to Subordinate Lender's rights under the Unsubordinated City Regulatory Agreement and the Density Bonus Agreement to approve such transfer, except that Subordinate Lender agrees that its decision to approve any such sale, assignment or other transfer will be based solely upon whether the proposed transferee is qualified to manage and operate affordable housing projects similar to the Mortgaged Property, and the Subordinate Lender will not unreasonably withhold, delay or condition its consent to any such proposed transfer; (b) Compliance with Subordinate Loan Documents. Notwithstanding anything to the contrary set forth in the Unsubordinated City Regulatory Agreement, from and after any foreclosure or deed in lieu of foreclosure, neither Senior Lender nor any successor in interest to the Property following any foreclosure or deed in lieu of foreclosure of the Senior Deed of Trust (collectively, the "Successor Owner"), shall be obligated to comply with the terms of any Subordination Agreement (City of Santa Ana) Form 6456 Page 12 Fannie Mae 08-13 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO incefy ou— 1'9 / EXHIBIT 4 Subordinate Loan Document and neither Senior Lender, nor any Successor Owner have any obligation to repay the Subordinate Loan. (c) Indemnification Provisions in Unsubordinated City RegulatoryAgreement. Notwithstanding anything to the contrary set forth in the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement, in no event shall Senior Lender or any Successor Owner be liable to Subordinate Lender for amounts due to the Subordinate Lender under the Unsubordinated City Regulatory Agreement or the Density Bonus Agreement as the result of an act or a failure to act occurring prior to the date on which Senior Lender or its successor, assign, or nominee acquires title to the Mortgaged Property by foreclosure or deed in lieu of foreclosure. (d) Default Under Unsubordinated City Re ug latory Agreement. No Successor Owner shall be required to cure any default under the Unsubordinated City Regulatory Agreement first occurring prior to the date upon which such Successor Owner acquired title to the Mortgaged Property, except that each Successor Owner shall be required to cure continuing defaults under the Unsubordinated City Regulatory Agreement related to the Mortgaged Property; provided further, however, that each such Successor Owner shall have 120 days after the date upon which it acquires title to the Mortgaged Property to cure such continuing defaults, or, if any such continuing default is not reasonably susceptible to a cure by such Successor Owner within such period, to commence curing such default (and in such latter case, such owner shall thereafter continuously and diligently pursue the cure of such default to completion). 14. Reinstatement. To the extent that Borrower makes a payment to Senior Lender or Senior Lender receives any payment or proceeds of the collateral securing the Senior Loan for Borrower's benefit, which payment or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable doctrine, then to the extent of such payment or proceeds received and not retained by Senior Lender, this Agreement shall be reinstated and continue in full force and effect until full and final payment shall have been made to Senior Lender. Subordinate Lender agrees to hold in trust for Senior Lender and promptly remit to Senior Lender any payments received by Subordinate Lender after such invalidated, rescinded or returned payment was originally made. 15. Notices. Each notice, request, demand, consent, approval or other communication (hereinafter in this Section referred to collectively as "notices" and referred to singly as a "notice") which the Senior Lender or the Subordinate Lender is required or permitted to give to the other party pursuant to this Agreement shall be in writing and shall be deemed to have been duly and sufficiently given if: (a) personally delivered with proof of delivery thereof (any notice so delivered shall be deemed to have been received at the time so delivered); or (b) sent by Federal Express (or other similar national overnight courier) designating early morning delivery (any notice so delivered shall be deemed to have been received on the next Business Day following receipt by the courier); or (c) sent by United States registered or certified mail, return receipt requested, postage prepaid, at a post office regularly Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 13 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 No ify ounce - 19 / EXHIBIT 4 maintained by the United States Postal Service (any notice so sent shall be deemed to have been received two days after mailing in the United States), addressed to the respective parties as follows: SENIOR LENDER: Bank of America, N.A. Mail Code #CA4-704-06-06 2000 Clayton Road 6th Floor Concord, California 94520-2405 Attention: Loan Administration Manager SUBORDINATE LENDER: City of Santa Ana City Manager 20 Civic Center Plaza P.O. Box 1988 Santa Ana, California 92702 With a copy to: City of Santa Ana City Attorney 20 Civic Center Plaza 7"' Floor (M-29) Santa Ana, California 92702 Either party may, by notice given pursuant to this Section, change the person or persons and/or address or addresses, or designate an additional person or persons or an additional address or addresses for its notices, but notice of a change of address shall only be effective upon receipt. 16. General. (a) Assignment/Successors. This Agreement shall be binding upon Trustor, Senior Lender and Subordinate Lender and shall inure to the benefit of the respective legal successors, transferees and assigns of Trustor, Senior Lender and Subordinate Lender. Trustor shall not assign any of its rights and obligations under this Agreement without the prior written consent of Senior Lender and Subordinate Lender. (b) No Partnership or Joint Venture. Senior Lender's permission for the placement of the Subordinate Loan does not constitute Senior Lender as a j oint venturer or partner of Subordinate Lender. Neither party hereto shall hold itself out as a partner, agent or Affiliate of the other party hereto. Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 14 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO inafy Du — T9 / EXHIBIT 4 (c) Senior Lender's and Subordinate Lender's Consent. Wherever Senior Lender's consent or approval is required by any provision of this Agreement, such consent or approval may be granted or denied by Senior Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. Wherever Subordinate Lender's consent or approval is required by any provision of this Agreement, such consent or approval maybe granted or denied by Subordinate Lender in its sole and absolute discretion, unless otherwise expressly provided in this Agreement. (d) Further Assurances. Subordinate Lender, Senior Lender and Trustor each agrees, at Borrower's expense, to execute and deliver all additional instruments and/or documents reasonably required by any other party to this Agreement in order to evidence that the Subordinate Mortgage is subordinate to the lien, covenants and conditions of the Senior Loan Documents, or to further evidence the intent of this Agreement. hereto. (e) Amendment. This Agreement shall not be amended except by written instrument signed by all parties (f) Governing Law. This Agreement shall be governed by the laws of the jurisdiction in which the Mortgaged Property is located without giving effect to any choice of law provisions thereof that would result in the application of the laws of another jurisdiction. Senior Lender, Subordinate Lender and Trustor agree that any controversy arising under or in relation to this Security Instrument shall be litigated exclusively in the jurisdiction in which the Mortgaged Property is located. The state and federal courts and authorities with jurisdiction in such locale shall have exclusive jurisdiction over all controversies that arise under or in relation to this Agreement. The parties hereto irrevocably consent to service, jurisdiction, and venue of such courts for any such litigation and waive any other venue to which any might be entitled by virtue of domicile, habitual residence or otherwise. (g) Severable Provisions. If any provision of this Agreement shall be invalid or unenforceable to any extent, then the other provisions of this Agreement, shall not be affected thereby and shall be enforced to the greatest extent permitted by law. (h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original for all purposes; provided, however, that all such counterparts shall together constitute one (1) and the same instrument. Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 15 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO inafy Du — 1'9 / EXHIBIT 4 (i) Sale of Senior Loan. Nothing in this Agreement shall limit Senior Lender's (including any assignee or transferee of Senior Lender) right to sell or transfer the Senior Loan, or any interest in the Senior Loan. The Senior Loan or a partial interest in the Senior Loan (together with this Agreement and the other Loan Documents) may be sold one or more times without prior notice to Trustor. [Remainder of Page Intentionally Left Blank] Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page 16 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO ify ounce - 20 / EXHIBIT 4 IN WITNESS WHEREOF, Trustor, Senior Lender and Subordinate Lender have signed and delivered this Agreement under seal (where applicable) or have caused this Agreement to be signed and delivered under seal (where applicable) by a duly authorized representative. Where applicable law so provides, Trustor, Senior Lender, and Subordinate Lender intend that this Agreement shall be deemed to be signed and delivered as a sealed instrument. SENIOR LENDER: BANK OF AMERICA, N.A., a national banking association C Michael K. Petty Senior Vice President Address: Bank of America, N.A. Mail Code #CA4-704-06-06 2000 Clayton Road 61h Floor Concord, California 94520-2405 Attention: Loan Administration Manager Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page S-1 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 No ify ounce 1 --2 1 / 3 EXHIBIT 4 BORROWER: NORTH BROADWAY HOUSING PARTNERS LP, a California limited partnership By: JHC-North Broadway LLC, a California limited liability company, its Managing General Partner By: Jamboree Housing Corporation, a California non-profit public benefit corporation, its Managing Member Michael Massie Chief Development Officer Borrower's address for notice purposes: North Broadway Housing Partners LP c/o Jamboree Housing Corporation 17701 Cowan Avenue Suite 200 Irvine, CA 92614 Attention: Asset Management With a copy to: Rutan & Tucker, LLP 18575 Jamboree Road 9th Floor Irvine, CA 92612 Attention: Patrick D. McCalla, Esq. Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page S-2 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 No ify ounce 1 --2 / 3 EXHIBIT 4 GROUND LESSOR: WISEPLACE, a California nonprofit public benefit corporation [Name] [Title] Ground Lessor's address for notice purposes: WISEPlace Attention: Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page S-3 © 2013 Fannie Mae WISEPlace 4893-9038-0110vA 4900000-002383 No ify ounce 1 -'2 / 3 EXHIBIT 4 ATTEST: WE Norma Orozco Clerk of the Council Dated: APPROVED AS TO FORM: SONIA R. CARVALHO, City Attorney By: Ooff� Special Counsel t,,Kthe City Best, Best & Krieger Dated: 2/23/23 RECOMMENDED FOR APPROVAL: 10. Michael L. Garcia Executive Director Community Development Agency SUBORDINATE LENDER: CITY OF SANTA ANA, a charter city and municipal corporation Kristine Ridge City Manager Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 Page S-4 © 2013 Fannie Mae WISEP1ace 4893-9038-0110vA 4900000-002383 NOTTi . NQ !''DNDIT A DDDl1V A T u A S RTi 9N R !-'Ti IALE13 TUTC TC NQT A f'l11VTA44T-A G'I�TT City Council 13 — 204 3/7/2023 EXHIBIT 4 EXHIBIT A Legal Description Subordination Agreement (City of Santa Ana) Fannie Mae Form 6456 08-13 Page A-1 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO ify ounce - 20 / EXHIBIT 4 All that certain real property situated in the County of Orange, State of California, described as follows: COMMENCING AT THE CENTERLINE INTERSECTION OF 15TH STREET AND SYCAMORE STREET AS SHOWN ON THE RECORD OF SURVEY NO 85-1067, RECORDED IN BOOK 111, PAGE 38, OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, SAID CENTERLINE OF SYCAMORE STREET BEING DESCRIBED IN THAT CERTAIN FINAL JUDGMENT, SUPERIOR COURT CASE NO. 23280, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 8, 1929 IN BOOK 227, PAGE 401 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, CALIFORNIA; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET SOUTH 000 14' 46" WEST, 90 FEET AND SOUTH 00° 04' 48" EAST, 213.42 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID CENTERLINE NORTH 890 58' 21" WEST, 312.17 FEET TO THE CENTERLINE OF BROADWAY, THENCE NORTHERLY ALONG SAID CENTERLINE OF BROADWAY NORTH 000 16' 10" EAST, 75.00 FEET TO THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN A DEED TO T. J. MULLINIX RECORDED OCTOBER 29, 1897 IN BOOK 33, PAGE 197 OF DEEDS OF SAID ORANGE COUNTY; THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF SAID DEED TO T. J. MULLINIX SOUTH 890 58' 10" EAST, 181.72 FEET TO THE WESTERLY LINE OF THE EAST 130.00 FEET OF THAT PORTION OF THE LAND ALLOTTED TO JACOB ROSS, AS DESCRIBED IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12,1869 IN BOOK `B", PAGE 410 OF JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES COUNTY, CALIFORNIA; THENCE NORTHERLY, ALONG SAID WESTERLY LINE NORTH 00° 04' 48" WEST, 77.08 FEET; THENCE SOUTH 89°58'10" EAST, 130.00 FEET TO THE ABOVE MENTIONED CENTERLINE OF SYCAMORE STREET; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET, SOUTH 00°04'48" EAST, 152.06 FEET TO THE POINT OF BEGINNING. SAID LAND IS SHOWN AS LOT 1 ON VOLUNTARY LOT MERGER NO. 2022-06 RECORDED JANUARY 26, 2023 AS INSTRUMENT NO. 2023000018589, OFFICIAL RECORDS OF SAID COUNTY. Assessor's Parcel Number: 398-523-04 City Council 13 — 206 3/7/2023 EXHIBIT 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ss County of On , 2023 before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity (ies), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO ify ounce — 20 / EXHIBIT 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) ss County of ) On , 2023 before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity (ies), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO ify ounce — 20 / EXHIBIT 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) ss County of ) On , 2023 before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity (ies), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO ify ounce — 20 / EXHIBIT 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) ss County of ) On , 2023 before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person (s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity (ies), and that by his/her/their signature (s) on the instrument the person (s), or the entity upon behalf of which the person (s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Subordination Agreement (City of Santa Ana) Form 6456 Fannie Mae 08-13 © 2013 Fannie Mae WISEPIace 4893-9038-0110vA 4900000-002383 NO ify ounce — 216/ EXHIBIT 5 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council SUBORDINATION AGREEMENT CITY OF SANTA ANA AND COUNTY OF ORANGE This Subordination Agreement (this "Subordination Agreement") is dated for reference purposes as of , and is executed by and between the CITY OF SANTA ANA, a California charter city (the "City"), and the COUNTY OF ORANGE, a political subdivision of the State of California (the "County"). Factual Background A. City has agreed to make a permanent loan to North Broadway Housing Partners L.P., a California limited partnership (the "Borrower"), in the original principal amount of up to Five Million Two Hundred Fifty Six Thousand Three Hundred Twenty Seven Dollars ($5,256,327) (the "City Loan") to assist in financing the construction of an affordable multifamily residential development (the "Project') on property located at 1411 N. Broadway in Santa Ana, and more particularly described in Exhibit A attached hereto and incorporated herein (the "Property"). B. The City Loan is evidenced by a City HOME -ARP Loan Agreement dated as of , and executed by and between Borrower and the City (the "City Loan Agreement") and a City HOME -ARP Promissory Note executed by the Borrower in favor of the County dated as of (the "City Note"). The City Loan is secured by a City HOME -ARP Deed of Trust , dated as of , that will be recorded in the official records of Orange County ("Official Records") substantially concurrently herewith (the "City Deed of Trust"). The City Loan Agreement, the City Note, and the City Deed of Trust are collectively referred to herein as the "City Loan Documents." In connection with the City Loan, Borrower and City will execute that certain Affordability Restrictions on the Transfer of Property, which will be recorded substantially concurrently herewith (the "City Regulatory Agreement"). C. Pursuant to a County of Orange ARPA Loan Agreement dated as of , between County and Borrower ("County Loan Agreement'), County has made or is City Council 13 — 211 3/7/2023 EXHIBIT 5 making a loan to Borrower in the maximum principal amount of One Million Five Hundred Thousand Dollars ($ 1,500,000) ("County Loan"). The County is secured by a County of ARPA Deed of Trust dated as of ("County Deed of Trust") encumbering all or a portion of the Mortgaged Property. In connection with the County Loan, Borrower and County have entered into that certain Amended and Restated Rent Limitation and Regulatory Agreement by and between Borrower and City to be recorded with the Recording Office on or about the date hereof (the "County Regulatory Agreement"). AGREEMENT 1. Subordination. 1.1 The City Deed of Trust, and any and all renewals, modifications permitted hereunder, extensions, or protective advances (including those costs to cure Borrower's default) thereunder (including interest thereon), is and will remain at all times, a lien, claim, or charge on the Property prior and superior to the County Deed of Trust. County acknowledges that it has had an opportunity to review the City Loan Documents, and County intentionally subordinates the lien of the County Deed of Trust to the City Deed of Trust. 1.2 The City Regulatory Agreement, and any and all renewals, modifications permitted hereunder, extensions, or protective advances (including those costs to cure Borrower's default) thereunder (including interest thereon), is and will remain at all times, a lien, claim, or charge on the Property prior and superior to the County Regulatory Agreement. County acknowledges that it has had an opportunity to review the City Regulatory Agreement, and County intentionally subordinates the County Regulatory Agreement to the City Regulatory Agreement. 2. Amendments Require Consent. County agrees that it will not amend or modify the County Loan Documents to shorten the maturity date, increase the principal amount, accelerate the repayment schedule (excluding any acceleration of the County Note due to Borrower's default) or increase the interest rate payable under the County Loan Documents without City's prior written consent. City agrees that it will not amend or modify the City Loan Documents to shorten the maturity date, increase the principal amount, accelerate the repayment schedule (excluding any acceleration of the County Note due to Borrower's default) or increase the interest rate payable under the City Loan Documents without County's prior written consent. 3. Notice and Cure Riehts. 3.1 Definitions: For purposes of this Section 31 the following capitalized words and terms shall have the following meanings. "Cure Period" means a period of a ninety (90) consecutive days from the giving of a Default Notice. "Defaulted Lender" means the party giving a Default Notice. 2 City Council 13 — 212 3/7/2023 EXHIBIT 5 "Default Notice" means written notice of the default(s) or Event(s) of Default giving rise to a party's right to complete a Foreclosure Remedy. "Foreclosure Remedy" means the completion of a foreclosure sale of the Property or the recording of a deed -in -lieu of foreclosure with respect to the Property. "Noticed Defaults" means the noticed default(s) or Event(s) of Default set forth in a Default Notice. "Notice Party" means the party receiving a Default Notice. 3.2 Notice and Cure Rights. (a) Notice and Cure Rights of City. County agrees that concurrently with County's provision of any notice of default (including without limitation any Default Notice) to Borrower under the County Loan Documents, County shall provide a copy of such notice to City at the address specified below. County agrees that City shall have the right to cure any default of Borrower within the same period of time provided to Borrower under the County Loan Documents, extended by a period of ninety (90) days. County further agrees that it shall not complete a Foreclosure Remedy unless and until City has first been given a Default Notice, and City has failed to cure the Noticed Defaults within the Cure Period or such longer period provided pursuant to this Section; provided, however, that County shall be entitled during the Cure Period to continue to pursue all of its rights and remedies under the County Loan Documents, including but not limited to acceleration of the County Note (subject to the de - acceleration provisions set forth below), commencement and pursuit of foreclosure (but not completion of the foreclosure sale), any guaranty (subject to any notice and cure provisions contained therein), and/or any other County Loan Document. It is the express intent of the parties hereunder that County shall have the right to pursue all rights and remedies except completion of a Foreclosure Remedy without liability to City for failure to provide notice to City, and that the County's liability hereunder shall be expressly limited to actual damages to City directly caused by the County's completion of a Foreclosure Remedy without City receiving the notice and opportunity to cure described above. Except as specifically provided herein, or otherwise agreed in writing, County's failure to give any such notice for any reason shall not act to impair or waive any remedy or right of County under this Subordination Agreement or any of the Loan Documents. (b) Notice and Cure Rights of County. City agrees that concurrently with City's provision of any notice of default (including without limitation any Default Notice) to Borrower under the City Loan Documents, City shall provide a copy of such notice to County at the address specified below. City agrees that County shall have the right to cure any default of Borrower within the same period of time provided to Borrower under the City Loan Documents, extended by a period of ninety (90) days. City agrees that it shall not complete a Foreclosure Remedy unless and until County has first been given a Default Notice, and County has failed to cure the Noticed Defaults with the Cure Period; provided, however, that City shall be entitled during the Cure Period to continue to pursue all of its rights and remedies under City Loan Documents including but not limited to acceleration of the City Note (subject to the de -acceleration provisions set forth below), commencement and pursuit of foreclosure (but not 3 City Council 13 — 213 3/7/2023 EXHIBIT 5 completion of the foreclosure sale), any guaranty (subject to any notice and cure provisions contained therein), and/or any other City Loan Document. It is the express intent of the parties hereunder that City shall have the right to pursue all rights and remedies except completion of a Foreclosure Remedy without liability to County for failure to provide notice to County, and that the City's liability hereunder shall be expressly limited to actual damages to County directly caused by the City's completion of a Foreclosure Remedy without County receiving the notice and opportunity to cure described above. Except as specifically provided herein, or otherwise agreed in writing, City's failure to give any such notice for any reason shall not act to impair or waive any remedy or right of City under this Subordination Agreement or any of the City Loan Documents. 3.3 Exercise of Cure Rights. With respect to the exercise of the cure rights provided in Section 3.2 above, the following shall apply: (a) Each Notice Party, whether County or City, shall have the right, but not the obligation, to elect to cure the Noticed Defaults by giving the Defaulted Lender written notice of its intention to cure the Noticed Defaults within the Cure Period and thereafter curing all Noticed Defaults within the Cure Period. (b) If a cure of all the Noticed Defaults is completed within the Cure Period, the Defaulted Lender will rescind any notice of default recorded and request dismissal of any receiver who has been appointed, after reimbursement of all of Defaulted Lender's costs, including, without limitation, reasonable attorneys' fees and costs. (c) Following the timely cure of all Noticed Defaults by a Notice Party, the Defaulted Lender will not exercise its right to accelerate (or will de -accelerate) the amounts due under the Defaulted Lender's loan documents by reason of the Noticed Defaults cured by such Notice Party; provided, however, that nothing herein shall be construed to waive or limit any of Defaulted Lender's rights or remedies as to any uncured Noticed Default, or any subsequent default, by Borrower. (d) Nothing in this Section is intended to limit or modify any covenant, term, or condition contained in the County Loan Documents or the City Loan Documents, including, without limitation, any covenant against creating or recording any liens or encumbrances against the Property without County's or City's prior written approval, and any acceleration clause in the County Deed of Trust and/or the City Deed of Trust. 4. Integration; No Waiver. This Subordination Agreement is the whole and only agreement with regard to the subordination of the liens, claims, and charges of the City Deed of Trust to the County Deed of Trust. This Subordination Agreement may not be modified or amended except by a written agreement signed by the party against whom enforcement is sought. No waiver shall be deemed to be made by any party of any of its rights hereunder unless the same shall be in writing signed by such party, and each such waiver, if any, shall be a waiver only with respect to the specific matter or matters to which the waiver relates and shall in no way impair the rights of such party or the obligations of Borrower to City or County in any other respect at any other time. 4 City Council 13 — 214 3/7/2023 EXHIBIT 5 5. Successors and Assigns. This Subordination Agreement is binding on and inures to the benefit of the legal representatives, successors, and assigns of the parties. 6. Creditor's Rights. City and County each agree not to commence or join with any other creditor of Borrower in commencing any bankruptcy, reorganization, or insolvency proceedings against the Borrower without the prior written consent of the other party. 7. Governing Law. This Subordination Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to the choice of law rules of that State, except to the extent that any of such laws may now or hereafter be preempted by Federal law. The parties hereto consent to the jurisdiction of any Federal or State court having jurisdiction within the County of Orange, California, submits to venue in such jurisdiction, and also consents to service of process by any means authorized by Federal law or the law of the State of California. Without limiting the generality of the foregoing, the parties hereby waive and agree not to assert by way of motion, defense, or otherwise in such suit, action, or proceeding, any claim that (i) any such party is not subject to the jurisdiction of the courts of the above -referenced jurisdiction or the United States District Court for such jurisdiction, or (ii) such suit, action, or proceeding is brought in an inconvenient forum, or (iii) the venue of such suit, action, or proceeding is improper. 8. Notices. All notices given under this Subordination Agreement shall be in writing and be given by personal delivery, overnight receipted courier (such as Airborne, UPS, or Federal Express) or by registered or certified United States mail, postage prepaid, sent to the party at its address appearing below its signature. Notices shall be effective upon the first to occur of receipt, when proper delivery is refused, or the expiration of forty-eight (48) hours after deposit in registered or certified United States mail as described above. Addresses for notice may be changed by any party by notice to any other party in accordance with this Section. 9. Counterparts. This Subordination Agreement may be executed in counterparts, and all counterparts constitute but one and the same document. 10. Exhibits and Recitals. The above Recitals and the attached exhibits are incorporated into this Agreement. (Remainder of page intentionally left blank.) s City Council 13 — 215 3/7/2023 EXHIBIT 5 IN WITNESS WHEREOF, the parties have executed this Subordination Agreement. ATTEST: CITY OF SANTA ANA Norma Orozco Kristine Ridge Clerk of the Council City Manager Dated: Dated: APPROVED AS TO FORM: SONIA R. CARVALHO, City Attorney By Special Couny 1 to the City Best, Best & Krieger Dated: 2/23/23 RECOMMENDED FOR APPROVAL: Michael L. Garcia Executive Director Community Development Agency County Subordination Agreement 6 City Council 13 — 216 3/7/2023 EXHIBIT 5 COUNTY: COUNTY OF ORANGE, a political subdivision of the state of California Julia Bidwell, OC Community Resources, Housing and Community Development APPROVED AS TO FORM Deputy County Counsel Address for notices to County: County of Orange OC Community Resources/ Housing & Community Development 1501 E. St. Andrew Place, 1 st Floor Santa Ana, CA 92705 Attn: Director City Council 13 — 217 3/7/2023 EXHIBIT 5 EXHIBIT A LEGAL DESCRIPTION City Council 13 — 218 3/7/2023 Exhibit A EXHIBIT 5 All that certain real property situated in the County of Orange, State of California, described as follows: COMMENCING AT THE CENTERLINE INTERSECTION OF 15TH STREET AND SYCAMORE STREET AS SHOWN ON THE RECORD OF SURVEY NO 85-1067, RECORDED IN BOOK 111, PAGE 38, OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, SAID CENTERLINE OF SYCAMORE STREET BEING DESCRIBED IN THAT CERTAIN FINAL JUDGMENT, SUPERIOR COURT CASE NO. 23280, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 8, 1929 IN BOOK 227, PAGE 401 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, CALIFORNIA; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET SOUTH 00" 14' 46" WEST, 90 FEET AND SOUTH 00° 04' 48" EAST, 213.42 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID CENTERLINE NORTH 890 58' 21" WEST, 312.17 FEET TO THE CENTERLINE OF BROADWAY, THENCE NORTHERLY ALONG SAID CENTERLINE OF BROADWAY NORTH 000 16' 10" EAST, 75.00 FEET TO THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN A DEED TO T. J. MULLINIX RECORDED OCTOBER 29, 1897 IN BOOK 33, PAGE 197 OF DEEDS OF SAID ORANGE COUNTY; THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF SAID DEED TO T. J. MULLINIX SOUTH 890 58' 10" EAST, 181.72 FEET TO THE WESTERLY LINE OF THE EAST 130.00 FEET OF THAT PORTION OF THE LAND ALLOTTED TO JACOB ROSS, AS DESCRIBED IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12,1869 IN BOOK `B", PAGE 410 OF JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES COUNTY, CALIFORNIA; THENCE NORTHERLY, ALONG SAID WESTERLY LINE NORTH 00° 04' 48" WEST, 77.08 FEET; THENCE SOUTH 89°58'10" EAST, 130.00 FEET TO THE ABOVE MENTIONED CENTERLINE OF SYCAMORE STREET; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET, SOUTH 00°04'48" EAST, 152.06 FEET TO THE POINT OF BEGINNING. SAID LAND IS SHOWN AS LOT 1 ON VOLUNTARY LOT MERGER NO. 2022-06 RECORDED JANUARY 26, 2023 AS INSTRUMENT NO. 2023000018589, OFFICIAL RECORDS OF SAID COUNTY. Assessor's Parcel Number: 398-523-04 City Council 13 — 219 3/7/2023 EXHIBIT 6 FREE RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail to: City of Santa Ana Clerk of the Council 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702 Attention: Clerk of the Council SUBORDINATION AGREEMENT CITY OF SANTA ANA AND ORANGE COUNTY HOUSING FINANCE TRUST This Subordination Agreement (this "Subordination Agreement") is dated for reference purposes as of , and is executed by and between the CITY OF SANTA ANA, a California charter city (the "City"), and the ORANGE COUNTY HOUSING FINANCE TRUST, a joint powers authority (the "OCHFT"). Factual Background A. City has agreed to make a permanent loan to North Broadway Housing Partners L.P., a California limited partnership (the "Borrower"), in the original principal amount of up to Five Million Two Hundred Fifty Six Thousand Three Hundred Twenty Seven Dollars ($5,256,327) (the "City Loan") to assist in financing the construction of an affordable multifamily residential development (the "Project") on property located at 1411 N. Broadway in Santa Ana, and more particularly described in Exhibit A attached hereto and incorporated herein (the "Property"). B. The City Loan is evidenced by a City HOME -ARP Loan Agreement dated as of , and executed by and between Borrower and the City (the "City Loan Agreement") and a City HOME -ARP Promissory Note executed by the Borrower in favor of the City dated as of (the "City Note"). The City Loan is secured by a City HOME -ARP Deed of Trust , dated as of , that will be recorded in the official records of Orange County ("Official Records") substantially concurrently herewith (the "City Deed of Trust"). The City Loan Agreement, the City Note, and the City Deed of Trust are collectively referred to herein as the "City Loan Documents." In connection with the City Loan, Borrower and City will execute that certain Affordability Restrictions on the Transfer of Property, which will be recorded substantially concurrently herewith (the "City Regulatory Agreement"). C. Pursuant to an Orange County Housing Finance Trust ("OCHFT") Loan Agreement dated as of , between OCHFT and Borrower ("OCHFT Loan City Council 13 — 220 3/7/2023 EXHIBIT 6 Agreement"), OCHFT has made or is making a loan to Borrower in the maximum principal amount of Two Million Four Hundred Eighty Thousand Thirty Dollars ($ 2,480,030) ("OCHFT Loan"). The OCHFT Loan is secured by an OCHFT Deed of Trust dated as of ("OCHFT Deed of Trust") encumbering all or a portion of the Mortgaged Property. In connection with the OCHFT Loan, Borrower and OCHFT have entered into that certain Amended and Restated Rent Limitation and Regulatory Agreement by and between Borrower and City to be recorded with the Recording Office on or about the date hereof (the "OCHFT Regulatory Agreement"). AGREEMENT 1. Subordination. 1.1 The City Deed of Trust, and any and all renewals, modifications permitted hereunder, extensions, or protective advances (including those costs to cure Borrower's default) thereunder (including interest thereon), is and will remain at all times, a lien, claim, or charge on the Property prior and superior to the OCHFT Deed of Trust. OCHFT acknowledges that it has had an opportunity to review the City Loan Documents, and OCHFT intentionally subordinates the lien of the OCHFT Deed of Trust to the City Deed of Trust. 1.2 The City Regulatory Agreement, and any and all renewals, modifications permitted hereunder, extensions, or protective advances (including those costs to cure Borrower's default) thereunder (including interest thereon), is and will remain at all times, a lien, claim, or charge on the Property prior and superior to the OCHFT Regulatory Agreement. OCHFT acknowledges that it has had an opportunity to review the City Regulatory Agreement, and OCHFT intentionally subordinates the OCHFT Regulatory Agreement to the City Regulatory Agreement. 2. Amendments Require Consent. OCHFT agrees that it will not amend or modify the OCHFT Loan Documents to shorten the maturity date, increase the principal amount, accelerate the repayment schedule (excluding any acceleration of the OCHFT Note due to Borrower's default) or increase the interest rate payable under the OCHFT Loan Documents without City's prior written consent. City agrees that it will not amend or modify the City Loan Documents to shorten the maturity date, increase the principal amount, accelerate the repayment schedule (excluding any acceleration of the OCHFT Note due to Borrower's default) or increase the interest rate payable under the City Loan Documents without OCHFT's prior written consent. 3. Notice and Cure Rights. 3.1 Definitions: For purposes of this Section 31 the following capitalized words and terms shall have the following meanings. "Cure Period" means a period of a ninety (90) consecutive days from the giving of a Default Notice. "Defaulted Lender" means the party giving a Default Notice. 2 City Council 13 — 221 3/7/2023 EXHIBIT 6 "Default Notice" means written notice of the default(s) or Event(s) of Default giving rise to a party's right to complete a Foreclosure Remedy. "Foreclosure Remedy" means the completion of a foreclosure sale of the Property or the recording of a deed -in -lieu of foreclosure with respect to the Property. "Noticed Defaults" means the noticed default(s) or Event(s) of Default set forth in a Default Notice. "Notice Party" means the party receiving a Default Notice. 3.2 Notice and Cure Rights. (a) Notice and Cure Rights of City. OCHFT agrees that concurrently with OCHFT's provision of any notice of default (including without limitation any Default Notice) to Borrower under the OCHFT Loan Documents, OCHFT shall provide a copy of such notice to City at the address specified below. OCHFT agrees that City shall have the right to cure any default of Borrower within the same period of time provided to Borrower under the OCHFT Loan Documents, extended by a period of ninety (90) days. OCHFT further agrees that it shall not complete a Foreclosure Remedy unless and until City has first been given a Default Notice, and City has failed to cure the Noticed Defaults within the Cure Period or such longer period provided pursuant to this Section; provided, however, that OCHFT shall be entitled during the Cure Period to continue to pursue all of its rights and remedies under the OCHFT Loan Documents, including but not limited to acceleration of the OCHFT Note (subject to the de -acceleration provisions set forth below), commencement and pursuit of foreclosure (but not completion of the foreclosure sale), any guaranty (subject to any notice and cure provisions contained therein), and/or any other OCHFT Loan Document. It is the express intent of the parties hereunder that OCHFT shall have the right to pursue all rights and remedies except completion of a Foreclosure Remedy without liability to City for failure to provide notice to City, and that the OCHFT's liability hereunder shall be expressly limited to actual damages to City directly caused by the OCHFT's completion of a Foreclosure Remedy without City receiving the notice and opportunity to cure described above. Except as specifically provided herein, or otherwise agreed in writing, OCHFT's failure to give any such notice for any reason shall not act to impair or waive any remedy or right of OCHFT under this Subordination Agreement or any of the Loan Documents. (b) Notice and Cure Rights of OCHFT. City agrees that concurrently with City's provision of any notice of default (including without limitation any Default Notice) to Borrower under the City Loan Documents, City shall provide a copy of such notice to OCHFT at the address specified below. City agrees that OCHFT shall have the right to cure any default of Borrower within the same period of time provided to Borrower under the City Loan Documents, extended by a period of ninety (90) days. City agrees that it shall not complete a Foreclosure Remedy unless and until OCHFT has first been given a Default Notice, and OCHFT has failed to cure the Noticed Defaults with the Cure Period; provided, however, that City shall be entitled during the Cure Period to continue to pursue all of its rights and remedies under City Loan Documents including but not limited to acceleration of the City Note (subject to the de -acceleration provisions set forth below), commencement and pursuit of foreclosure (but not 3 City Council 13 — 222 3/7/2023 EXHIBIT 6 completion of the foreclosure sale), any guaranty (subject to any notice and cure provisions contained therein), and/or any other City Loan Document. It is the express intent of the parties hereunder that City shall have the right to pursue all rights and remedies except completion of a Foreclosure Remedy without liability to OCHFT for failure to provide notice to OCHFT, and that the City's liability hereunder shall be expressly limited to actual damages to OCHFT directly caused by the City's completion of a Foreclosure Remedy without OCHFT receiving the notice and opportunity to cure described above. Except as specifically provided herein, or otherwise agreed in writing, City's failure to give any such notice for any reason shall not act to impair or waive any remedy or right of City under this Subordination Agreement or any of the City Loan Documents. 3.3 Exercise of Cure Rights. With respect to the exercise of the cure rights provided in Section 3.2 above, the following shall apply: (a) Each Notice Party, whether OCHFT or City, shall have the right, but not the obligation, to elect to cure the Noticed Defaults by giving the Defaulted Lender written notice of its intention to cure the Noticed Defaults within the Cure Period and thereafter curing all Noticed Defaults within the Cure Period. (b) If a cure of all the Noticed Defaults is completed within the Cure Period, the Defaulted Lender will rescind any notice of default recorded and request dismissal of any receiver who has been appointed, after reimbursement of all of Defaulted Lender's costs, including, without limitation, reasonable attorneys' fees and costs. (c) Following the timely cure of all Noticed Defaults by a Notice Party, the Defaulted Lender will not exercise its right to accelerate (or will de -accelerate) the amounts due under the Defaulted Lender's loan documents by reason of the Noticed Defaults cured by such Notice Party; provided, however, that nothing herein shall be construed to waive or limit any of Defaulted Lender's rights or remedies as to any uncured Noticed Default, or any subsequent default, by Borrower. (d) Nothing in this Section is intended to limit or modify any covenant, term, or condition contained in the OCHFT Loan Documents or the City Loan Documents, including, without limitation, any covenant against creating or recording any liens or encumbrances against the Property without OCHFT's or City's prior written approval, and any acceleration clause in the OCHFT Deed of Trust and/or the City Deed of Trust. 4. Integration; No Waiver. This Subordination Agreement is the whole and only agreement with regard to the subordination of the liens, claims, and charges of the City Deed of Trust to the OCHFT Deed of Trust. This Subordination Agreement may not be modified or amended except by a written agreement signed by the party against whom enforcement is sought. No waiver shall be deemed to be made by any party of any of its rights hereunder unless the same shall be in writing signed by such party, and each such waiver, if any, shall be a waiver only with respect to the specific matter or matters to which the waiver relates and shall in no way impair the rights of such party or the obligations of Borrower to City or OCHFT in any other respect at any other time. 4 City Council 13 — 223 3/7/2023 EXHIBIT 6 5. Successors and Assigns. This Subordination Agreement is binding on and inures to the benefit of the legal representatives, successors, and assigns of the parties. 6. Creditor's Rights. City and OCHFT each agree not to commence or join with any other creditor of Borrower in commencing any bankruptcy, reorganization, or insolvency proceedings against the Borrower without the prior written consent of the other party. 7. Governing Law. This Subordination Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to the choice of law rules of that State, except to the extent that any of such laws may now or hereafter be preempted by Federal law. The parties hereto consent to the jurisdiction of any Federal or State court having jurisdiction within the OCHFT of Orange, California, submits to venue in such jurisdiction, and also consents to service of process by any means authorized by Federal law or the law of the State of California. Without limiting the generality of the foregoing, the parties hereby waive and agree not to assert by way of motion, defense, or otherwise in such suit, action, or proceeding, any claim that (i) any such party is not subject to the jurisdiction of the courts of the above -referenced jurisdiction or the United States District Court for such jurisdiction, or (ii) such suit, action, or proceeding is brought in an inconvenient forum, or (iii) the venue of such suit, action, or proceeding is improper. 8. Notices. All notices given under this Subordination Agreement shall be in writing and be given by personal delivery, overnight receipted courier (such as Airborne, UPS, or Federal Express) or by registered or certified United States mail, postage prepaid, sent to the party at its address appearing below its signature. Notices shall be effective upon the first to occur of receipt, when proper delivery is refused, or the expiration of forty-eight (48) hours after deposit in registered or certified United States mail as described above. Addresses for notice may be changed by any party by notice to any other party in accordance with this Section. 9. Counterparts. This Subordination Agreement may be executed in counterparts, and all counterparts constitute but one and the same document. 10. Exhibits and Recitals. The above Recitals and the attached exhibits are incorporated into this Agreement. (Remainder of page intentionally left blank.) s City Council 13 — 224 3/7/2023 EXHIBIT 6 IN WITNESS WHEREOF, the parties have executed this Subordination Agreement. ATTEST: CITY OF SANTA ANA Norma Orozco Kristine Ridge Clerk of the Council City Manager Dated: Dated: APPROVED AS TO FORM: SONIA R. CARVALHO, City Attorney B Y: Special Counsel to the City Best, Best & Krieger 2/23/23 Dated: RECOMMENDED FOR APPROVAL: Michael L. Garcia Executive Director Community Development Agency OCHFT Subordination Agreement 6 City Council 13 — 225 3/7/2023 EXHIBIT 6 ORANGE COUNTY HOUSING FINANCE TRUST, a political subdivision of the State of California Date: APPROVED AS TO FORM AND LEGALITY m. Address for notices to OCHFT: Orange County Housing Finance Trust Attn: Adam Eliason, Manager 1 League #62335 Irvine, CA 92602 City Council 13 — 226 3/7/2023 EXHIBIT 6 EXHIBIT A LEGAL DESCRIPTION City Council 13 — 227 3/7/2023 Exhibit A EXHIBIT 6 All that certain real property situated in the County of Orange, State of California, described as follows: COMMENCING AT THE CENTERLINE INTERSECTION OF 15TH STREET AND SYCAMORE STREET AS SHOWN ON THE RECORD OF SURVEY NO 85-1067, RECORDED IN BOOK 111, PAGE 38, OF RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY, SAID CENTERLINE OF SYCAMORE STREET BEING DESCRIBED IN THAT CERTAIN FINAL JUDGMENT, SUPERIOR COURT CASE NO. 23280, A CERTIFIED COPY OF WHICH WAS RECORDED JANUARY 8, 1929 IN BOOK 227, PAGE 401 OF OFFICIAL RECORDS OF SAID ORANGE COUNTY, CALIFORNIA; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET SOUTH 000 14' 46" WEST, 90 FEET AND SOUTH 00° 04' 48" EAST, 213.42 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID CENTERLINE NORTH 890 58' 21" WEST, 312.17 FEET TO THE CENTERLINE OF BROADWAY, THENCE NORTHERLY ALONG SAID CENTERLINE OF BROADWAY NORTH 000 16' 10" EAST, 75.00 FEET TO THE SOUTHWEST CORNER OF THE LAND DESCRIBED IN A DEED TO T. J. MULLINIX RECORDED OCTOBER 29, 1897 IN BOOK 33, PAGE 197 OF DEEDS OF SAID ORANGE COUNTY; THENCE EASTERLY ALONG SAID SOUTHERLY LINE OF SAID DEED TO T. J. MULLINIX SOUTH 890 58' 10" EAST, 181.72 FEET TO THE WESTERLY LINE OF THE EAST 130.00 FEET OF THAT PORTION OF THE LAND ALLOTTED TO JACOB ROSS, AS DESCRIBED IN THE FINAL DECREE OF PARTITION OF THE RANCHO SANTIAGO DE SANTA ANA, WHICH WAS ENTERED SEPTEMBER 12,1869 IN BOOK `B", PAGE 410 OF JUDGMENTS OF THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT IN AND FOR LOS ANGELES COUNTY, CALIFORNIA; THENCE NORTHERLY, ALONG SAID WESTERLY LINE NORTH 00° 04' 48" WEST, 77.08 FEET; THENCE SOUTH 89°58'10" EAST, 130.00 FEET TO THE ABOVE MENTIONED CENTERLINE OF SYCAMORE STREET; THENCE SOUTHERLY ALONG SAID CENTERLINE OF SYCAMORE STREET, SOUTH 00°04'48" EAST, 152.06 FEET TO THE POINT OF BEGINNING. SAID LAND IS SHOWN AS LOT 1 ON VOLUNTARY LOT MERGER NO. 2022-06 RECORDED JANUARY 26, 2023 AS INSTRUMENT NO. 2023000018589, OFFICIAL RECORDS OF SAID COUNTY. Assessor's Parcel Number: 398-523-04 City Council 13 — 228 3/7/2023 Parks, Recreation, and Community Services www.santa-ana.org/parks Item # 14 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Resolution and Donation Agreement for Project Backboard Renovation of the Basketball Court at Portola Park AGENDA TITLE: Resolution Accepting the In -Kind Donation for the Repair and Resurfacing of the Basketball Court at Portola Park RECOMMENDED ACTION 1. Adopt a resolution accepting the donation for the repair and resurfacing of the basketball court at Portola Park and 2. Authorize the City Manager to execute donation agreement with Project Backboard for the repair and resurfacing of a basketball court, valued at approximately $75,000, with no cost to the City, for the period of March 7, 2023 through April 30, 2023, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION Project Backboard's mission is to renovate public basketball courts and install large scale works of site specific art on the surface in order to strengthen communities, improve park safety, encourage multi -generational play, and inspire people to think more critically and creatively about their environment. This renovation will enhance the Portola basketball court at no cost to the City. The following terms are incorporated into the donation agreement: • Clean existing basketball court. • Patch and level significant areas on the court surface and repair existing cracks. • Apply acrylic sports resurfacer. • Two coats, minimum, of acrylic sports specific color coating accordance with the requirements of final approved design. • Source all stencils and other materials needed to install court artwork. • Stripe court(s) with textured acrylic with line paint. • Remove and replace basketball rims. • Clean and repaint existing basketball backboards as necessary. City Council 14 — 1 3/7/2023 Resolution and Donation Agreement for Project Backboard Renovation of the Basketball Court at Portola Park March 7, 2023 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. EXHIBIT(S) 1. Resolution 2. Agreement Submitted By: Hawk Scott, Executive Director of Parks, Recreation and Community Services Approved By: Kristine Ridge, City Manager City Council 14 — 2 3/7/2023 brs 2/21 /23 RESOLUTION NO. 2023-xxx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA ACCEPTING THE DONATION OF THE REPAIR AND RESURFACING OF THE BASKETBALL COURT AT PORTOLA PARK BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. Portola Park in the City of Santa Ana, located at 1700 E. Santa Clara Avenue, has a basketball court available for public use. B. Project Backboard, a 501(c)(3) not for profit organization, renovates public basketball courts and installs large scale works of site specific art on the surface. C. Project Backboard wishes to donate the repair and resurfacing of the basketball court at Portola Park. D. The total value of the donated equipment and services is valued at approximately $75,000 with no cost to the City. E. The acceptance of this donation enhances the public basketball court at Portola Park. Section 2. The City hereby accepts the donation of the repair and resurfacing of the public basketball court at Portola Park, 1700 E. Santa Clara Avenue. Section 3. If any section, subsection, sentence, clause, phrase or word of this Resolution is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have passed and adopted this Resolution, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. Resolution 2023-xxx PagelI pMuncil 14 — 3 3/7/2023 ADOPTED this day of March, 2023. Valerie Amezcua Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: `-Bandon Salvatierra Deputy City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, , Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2023- to be the original resolution adopted by the City Council of the City of Santa Ana on Date: Clerk of the Council City of Santa Ana Resolution 2023-xxx PageR pUuncil 14 — 4 3/7/2023 DONATION AGREEMENT WITH PROJECT BACKBOARD FOR BASKETBALL COURT REPAIR AND RESURFACING AT PORTOLA PARK This Agreement is made and entered into this 7th day of March, 2023 by and between Project Backboard, a California non-profit public benefit corporation (Donor), and the City of Santa Ana, a charter city and Municipal Corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. Donor is a 501(c)(3) organization that renovates public basketball courts and installs large scale works of site specific art on the surface in order to strengthen communities, improve park safety, encourage multi -generational play, and inspire people to think more critically and creatively about their environment. B. Portola Park in the City of Santa Ana has a basketball court available for public use. C. Donor wishes to donate the repair and resurfacing of the public basketball court at Portola Park. D. These repair and resurfacing services will be donated to City and performed by Donor at no cost to City. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: SCOPE OF SERVICES Donor shall furnish, at its own expense, all labor, materials, equipment, supplies and other items and services necessary to repair and resurface the public basketball court at Portola Park, as further described in Exhibit A, attached hereto, by June 30, 2023. City grants Donor the right to enter its property for the purpose of repair and resurfacing of the public basketball court at Portola Park. 2. COMPENSATION City agrees to accept services to be provided above and Donor agrees to provide services and materials free of charge to the City. This Agreement does not contemplate the payment of monies to Donor on the part of the City. B:1ll This Agreement shall commence on the date stated above and terminate on April 30, 2023, unless terminated earlier in accordance with Section 12, below. 4. INDEPENDENT CONTRACTOR Donor shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to Pagel of 8 City Council 14 — 5 3/7/2023 create an employer -employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Donor performs the services which are the subject matter of this Agreement; however, the services to be provided by Donor shall be provided in a manner consistent with all applicable standards and regulations governing such services. Donor shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Donor shall provide to the City proof of insurance prior to undertaking performance of work under this Agreement. Donor shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Minimum Scope and Limit of Insurance (1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregatelimit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (2) Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with a limit no less than $1,000,000 per accident for bodily injury and property damage. (3) Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (4) Broader Coverage: if the Contractor maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. b. Other Insurance Provisions (1) Additional Insured Status: The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 Page 2 of 8 City Council 14 — 6 3/7/2023 10 11 85 or if notavailable, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 if a later edition is used). (2) Primary Coverage: For any claims related to this contract, the Contractor's insurance coverage shall be primary coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. (3) Notice of Cancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. (4) Waiver of Subrogation: Contractor hereby grants to City a waiver of any right to subrogation that any insurer of said Contractor may acquire against the City by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiverof subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (5) Self -Insured Retentions: Self -insured retentions must be declared to and approved by the City. The City may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. (6) Acceptability of Insurers: Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than AXII, unless otherwise acceptable to the City. (7) Claims Made Policies: If any of the required policies provide claims -made coverage: i. The retroactive date must be shown, and must be before the date of the contract or beginning of contract work. ii. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract work. iii. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the contract effective date, the Contractor must purchase "extending reporting" coverage for a minimum of five (5) years after completion of work. Page 3 of 8 City Council 14 — 7 3/7/2023 (8) Verification of Coverage: Contractor shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage requiredby this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing allpolicy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. (9) Subcontractors: Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. (10) Special Risks or Circumstances: City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. 6. INDEMNIFICATION Donor agrees to and shall defend, indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of Donor or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Section or by reason of the terms of, or effects, arising from this Agreement. Donor further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing, to the extent Donor's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Donor. Page 4 of 8 City Council 14 — 8 3/7/2023 7. CONFIDENTIALITY If Donor receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Donor agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall be clearly marked "Confidential Information." Confidential information includes not only written information, but also information transferred orally and reduced to writing, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of Donor disclosed in a publicly available source; (c) is in rightful possession of Donor without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by Donor without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Donor covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax: 714-647-6956 Copies to: Parks, Recreation & Community Services Agency City of Santa Ana 20 Civic Center Plaza (M-23) Santa Ana, California 92702 Fax: 714-571-4221 To Donor: Project Backboard Attn: Dan Peterson 53 Christamon S. Irvine, CA 92620 Page 5 of 8 City Council 14 — 9 3/7/2023 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Donor regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Donor. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Donor nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Donor, Donor may not assign, transfer, delegate, or subcontract any interest herein, except as already specified in this Agreement, without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services, which are the subject to this Agreement performed by City personnel or by other contractors retained by City. 12. TERMINATION This Agreement may be terminated by the City upon seven (7) days written notice of termination. 13. NON-DISCRIMINATION Donor shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Donor affirm that it is an equal opportunity employer and shall comply with all applicable federal, state, and local laws and regulations. Page 6 of 8 City Council 14 — 10 3/7/2023 14. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be detenuined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Donor shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Donor shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terns of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Jennifer L. Hall Clerk of the Council CITY OF SANTA ANA Kristine Ridge City Manager [signatures continued on next page] Page 7 of 8 City Council 14 —11 3/7/2023 APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: randon Salvatierra Deputy City Attorney RECOMMENDED FOR APPROVAL: Hawk Scott Executive Director of Parks, Recreation & Community Services Agency DONOR Dan Peterson Project Backboard Page 8 of 8 City Council 14 — 12 3/7/2023 EXHIBIT A City Council 14 — 13 3/7/2023 Project Backboard c/o Dan Peterson 53 Christamon S. Irvine CA, 92620 dpeterson@projectbackboard.org (512) 492 2062 Description This Scope of Work is for the repair and resurfacing of one basketball court at Portola Park, 1700 E Santa Clara Ave, Santa Ana, CA 92705. Project Backboard to provide the following: • Clean existing basketball court. • Patch and level significant "bird bath" areas and repair existing cracks • Apply acrylic sports resurfacer (Sport Master or similar brand) • Two (2) coats, minimum, of acrylic sports specific color coating (Sport Master or similar brand) in accordance with the requirements of final approved design. • Source all stencils and other materials needed to install court artwork. • Stripe court(s) with textured acrylic with line paint. • Remove and replace basketball rims. • Clean and repaint existing basketball backboards as necessary. City Council 14 — 14 3/7/2023 Portola Park, 1700 E Santa Clara Ave, Santa Ana, CA 92705 Condition as of 2/11/2013 City Council 14 — 15 3/7/2023 It ME No w �15 {F i m �g E 0 D a - - r 1i • e r e ■ wit VI ti — N a M N O N ti M ti U C O U % r \ `jrya SOl � . IA LML 4..sp vv��L i Z fA t cF 1 t •,1 {•� �t ' •' %� Y II " •� • t. � Y 1� PF (Y) N O N ti O N W L f F7 W A : \§�uz� q q D CN P- q q q I � E _ 0 U � m �7 c') N O N ti N CU C O U W CM N O N ti M LO N �U C O U r li CM N O N N Public Works Agency www.santa-ana.org/public-works Item # 15 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Grant Application for Water Well Projects AGENDA TITLE Adopt a Resolution Authorizing Grant Application Submission for California Department of Water Resources 2022 Urban and Community Drought Relief Grant Program (Non - General Fund) RECOMMENDED ACTION Adopt a resolution authorizing the Executive Director of the Public Works Agency to submit a grant application to the California Department of Water Resources 2022 Urban Community Drought Relief Grant Program for the Well 38 Wellhead Treatment Project and West Station Well Project land acquisition in an amount up to $4,000,000. DISCUSSION The Public Works Agency's Water Resources Division oversees and maintains the daily operations of the City's water distribution system. The water system is comprised of approximately 480 miles of water main, 21 groundwater wells, seven pump stations, ten reservoirs with a storage capacity of 49 million gallons, four pressure regulating vaults (PRVs), and seven connection points with the Metropolitan Water District of Southern California (MWD). The majority of the City of Santa Ana's potable water comes from the Orange County Groundwater Basin (OC Basin) and is pumped through 21 existing City wells. Due to a variety of issues, including the presence of per- and polyfluoroalkyl substances (PFAS) found in routine well monitoring, several wells in the City have been taken offline. Given the limited water supplies in the region, and recent recurring drought conditions, removing wells from the City's potable water distribution system will reduce its reliability. Rehabilitating existing wells or constructing new wells will reduce the burden on other City water production facilities and the reliance on imported water sources. The Well 38 Wellhead Treatment Project will construct an ion exchange water treatment facility to remove PFAS chemicals from the water and allow the well to be returned to the City's distribution system. Well 38 is located in the City's upper pressure zone, which has become increasingly reliant on imported water due to the presence of PFAS contamination found in the wells primarily serving this area of the City. City Council 15 — 1 3/7/2023 Adopt Resolution for DWR Drought Relief Grant Applications March 7, 2023 Page 2 The West Station Well Project land acquisition site is adjacent to the City's existing West Station site. The groundwater wells at West Station are amongst the oldest in the system and operated beyond their expected lifespan of 50 years. The Water Resources Division plans to add new groundwater wells adjacent to the aging infrastructure and maintain the same level of service to the community, while also meeting regulations regarding siting of new wells relative to existing wells. The California Department of Water Resources offers financial assistance in the form of grant funding through its Urban Community Drought Relief Grant Program for these type of projects. The program provides funding for projects that provide water to communities that face the loss or contamination of their water supplies, address immediate impacts on human health and safety, and protect fish and wildlife resources. If the grant application is successful, the grant funding would offset up to $4,000,000 of the estimated $12,662,000 total project costs. The Resolution authorizes staff to submit the respective application (Exhibit 1). FISCAL IMPACT There is no fiscal impact associated with this action. Staff will return to the City Council with a request for approval of further actions and will indicate the fiscal impact of any such awards and associated expenditures at that time. EXHIBIT(S) 1. Resolution Submitted By: Nabil Saba, P. E., Executive Director, Public Works Agency Approved By: Kristine Ridge, City Manager City Council 15 — 2 3/7/2023 EXHIBIT 1 brs 2/14/23 RESOLUTION NO. 2023-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AUTHORIZING THE GRANT APPLICATION, ACCEPTANCE, AND EXECUTION FOR THE WELL 38 WELLHEAD TREATMENT PROJECT AND WEST STATION WELL PROJECT WHEREAS, the City of Santa Ana proposes to implement the Well 38 Wellhead Treatment Project and West Station Well Project; and WHEREAS, the City has the legal authority and is authorized to enter into a funding agreement with the State of California; and WHEREAS, the City intends to apply for grant funding from the California Department of Water Resources for the Well 38 Wellhead Treatment Project and West Station Well Project. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Santa Ana as follows: Section 1. Pursuant and subject to all of the terms and provisions of the Budget Act of 2021 (Stats. 2021, ch. 240, section 80) as amended (Stats. 2022, ch. 44, section 25), the Executive Director of Public Works, or designee, is hereby authorized and directed to prepare and file an application for funding with the Department of Water Resources, and take such other actions necessary or appropriate to obtain grant funding for the above -referenced projects. Section 2. The Executive Director of Public Works, or designee, is hereby authorized and directed to execute the funding agreement with the Department of Water Resources and any amendments thereto. Section 3. The Executive Director of Public Works, or designee, is hereby authorized and directed to submit any required documents, invoices, and reports required to obtain grant funding. Section 4. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of 12023. Valerie Amezcua Mayor Resolution No. 2023-XXX Page 1 of 2 City Council 15 — 3 3/7/2023 brs 2/14/23 APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: `Brd6don Salvatierra Deputy City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATION OF ATTESTATION AND ORIGINALITY I, Resolution No. 2023-_ City of Santa Ana on _ Date: Clerk of the Council, do hereby attest to and certify the attached _ to be the original Resolution adopted by the City Council of the , 2023. Clerk of the Council City of Santa Ana Resolution No. 2023-XXX Page 2 of 2 City Council 15 — 4 3/7/2023 Planning and Building Agency www.santa-ana.org/planning-and-building Item # 16 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Resolution Affirming the Local Enforcement of Regulations Pertaining to the Use and Maintenance of Public Sidewalks and Urging the State Legislature of the State of California to Amend State Law and Allow Local Jurisdictions the Right of Self - Determination to Enact Local Sidewalk Regulations AGENDA TITLE: A Resolution of the City Council of the City of Santa Ana Affirming its Dedication and its Priority to Protect the Health, Safety and Welfare of Its Residents, Visitors, and Business Owners in the Enforcement of State Sidewalk Vendor Regulations, the Federal Americans With Disabilities Act of 1990 and Other Disability Access Standards, and All Local Regulations Pertaining to the Use and Maintenance of Public Sidewalks and Other Pedestrian Pathways, and Urging the State Legislature of the State of California to Amend State Law and Allow Local Jurisdictions the Right of Self - Determination to Enact Local Sidewalk Regulations RECOMMENDED ACTION Adopt resolution. DISCUSSION In response to community concerns and demands for the City to address the proliferation of stationary sidewalk food vendors within the City as result of SB 946 (Lara, Statutes of 2019) and SB 972 (Gonzalez, Statutes of 2022) and the negative impacts they have on the public's health, safety and welfare, the City Council at its regular meeting on February 7, 2023 directed staff to draft a resolution affirming the following local priorities: 1. Protect the health, safety and welfare of the community and to enforce applicable federal, state, and local sidewalk accessibility, use, and maintenance laws and regulations; and 2. Call upon the State Legislature of the State Of California to amend state law and allow local jurisdictions the right of self-determination to enact local sidewalk regulations. The resolution is included as Exhibit 1 to this report and affirms the City's commitment to a diverse and inclusive community that equitably permits and regulates business City Council 16 — 1 3/7/2023 Resolution Affirming Local Enforcement and Urging the California State Legislature to Amend Sidewalk Regulations March 7, 2023 Page 2 activities in Santa Ana to ensure the health, safety, and welfare of the City's residents, visitors, and business owners. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act (CEQA), the adoption of this Resolution is not considered a "project" as defined in Section 15378 of the CEQA Guideline and therefore is exempt from further review. FISCAL IMPACT There is no fiscal impact associated with this action. EXHIBIT(S) 1. Resolution Submitted By: Minh Thai, Executive Director, Planning and Building Agency Approved By: Kristine Ridge, City Manager City Council 16 — 2 3/7/2023 RESOLUTION NO. 2023-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, COUNTY OF ORANGE, STATE OF CALIFORNIA, AFFIRMING ITS DEDICATION AND ITS PRIORITY TO PROTECT THE HEALTH, SAFETY AND WELFARE OF ITS RESIDENTS, VISITORS, AND BUSINESS OWNERS IN THE ENFORCEMENT OF STATE SIDEWALK VENDOR REGULATIONS, THE FEDERAL AMERICANS WITH DISABILITIES ACT OF 1990 AND OTHER DISABILITY ACCESS STANDARDS, AND ALL LOCAL REGULATIONS PERTAINING TO THE USE AND MAINTENANCE OF PUBLIC SIDEWALKS AND OTHER PEDESTRIAN PATHWAYS, AND URGING THE STATE LEGISLATURE OF THE STATE OF CALIFORNIA TO AMEND STATE LAW AND ALLOW LOCAL JURISDICTIONS THE RIGHT OF SELF- DETERMINATION TO ENACT LOCAL SIDEWALK REGULATIONS WHEREAS, the City Council of SANTA ANA, CALIFORNIA is committed to supporting an inclusive, thriving, vibrant, and healthy community, regardless of race, ethnicity, age, gender, religion, sexual orientation, gender identity, gender expression, disability, economic status and other diverse backgrounds; and WHEREAS, the government of SANTA ANA, CALIFORNIA is a chartered city as defined under California Government Code Section 51036(d); and WHEREAS, the City of SANTA ANA, CALIFORNIA has experienced an exponential increase in the number of unpermitted stationary sidewalk food vendors within its jurisdiction since Senate Bill 946 was enacted; and WHEREAS, the global Coronavirus disease 2019 (COVID-19) pandemic caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) resulted in fundamental shifts in the ways in which consumers purchase household groceries and food through deliveries, pickup, mobile vending, food delivery, and to -go ordering; and WHEREAS, in response to this fundamental shift, the State and local jurisdictions enacted temporary and permanent regulatory changes surrounding the food industry, enabling, among others, sidewalk vending; and WHEREAS, Senate Bill (SB) 946 was signed into law on September 17, 2018, and became effective January 1, 2019; and WHEREAS, SB 946 severely limits the authority of cities and counties to regulate sidewalk vendors, except in accordance with Government Code Sections 51038 and 51039; and WHEREAS, SB 972 was signed into law September 23, 2022, and became effective January 1, 2023; and Resolution No. 2023-XXX of 8 City Council 16 — 3 3/ / WHEREAS, SB 972 built upon the policy framework included in SB 946 and further restricted local jurisdictions' abilities to implement key food vendor regulations, including basic food safety and accessibility requirements; and WHEREAS, SB 946 and SB 972 (the "Bills") provide for regulations by the State Department of Public Health of retail food facilities, including sidewalk vending, and require local health agencies to enforce these provisions; and WHEREAS, following the passage of SB 946, Santa Ana City Code Enforcement Officers and Orange County Health Officials have encountered a rise in negligent stationary sidewalk food vending operations, including the sale of food deemed unfit for human consumption, the presence of unventilated smoke and open flame and other devices emitting flame, fire or potential heat to sensitive groups, the obstruction of adequate sidewalk space for accessibility and safety purposes, and the spillage of food and grease impacting the surface texture of the sidewalk; and WHEREAS, cooking and heating of food through the use of outdoor fires and open flame heating equipment on public sidewalks without proper venting, fire control systems, and proper food heating and handling equipment constitute a danger to the public's health, safety, and welfare; and WHEREAS, the consequences of these Bills have allowed, all too often, largescale stationary food vendors to take over entire sidewalk spaces, thus prohibiting reasonable access for individuals with disabilities, or pushing individuals into the roads with dangerous traffic conditions in order to navigate the lack of available safe sidewalk space; and WHEREAS, reducing the width and destabilizing the surface texture of public sidewalks designed strictly to comply with the Americans with Disabilities Act (ADA) constitutes a danger to the public's health, safety, and welfare; and WHEREAS, the increased number of stationary sidewalk food vendors has resulted in significant time and resources from City Code Enforcement Officers, County Health Officials, and local law enforcement to deal with the aforementioned issues. The focus on stationary sidewalk food vendors means that these public resources are not available to respond to other needs throughout the City; and WHEREAS, with the provisions of SB 972 recently taking effect, the City has experienced a proliferation in the number of stationary sidewalk food vendors and has been further restricted in its abilities for regulating sidewalk activities; and WHEREAS, with the provisions of SB 972 recently taking effect, the City is further restricted in its ability to ensure that that the food being offered is safe for consumption; and WHEREAS, with the provisions of SB 972 recently taking effect, the City is further restricted in its ability to ensure that residents and visitors have adequate access to public sidewalks; and Resolution No. 2023-XXX of 8 City Council 16 — 4 3/ / WHEREAS, since the passage of the Bills, the City has found it increasingly difficult to mitigate the public health impacts from stationary sidewalk food vendor operations and their threat to the public's health and safety. Specifically, measures to reduce local health permit regulations for street food vendors, consequently undermine the collective authority of City and County agencies to implement standardized inspections and assign accountability; and WHEREAS, the Bills have eliminated key food health and safety requirements intended to keep food safe for public consumption, such as water requirements and handwashing stations, and prohibit the regulation of where food vendors can be located; and WHEREAS, the County Health Care Agency's Environmental Health Division (EHD) observed that a disproportionately large number of stationary food vendors are corporatized with sophisticated, stationary equipment that encompasses large amounts of sidewalk space, and threatens the livelihoods of local, small-business, brick -and -mortar "mom and pop" vendors that adhere to municipal and state codes; and WHEREAS, the California Health and Safety Code (CH&SC) Section 114381(a) establishes a food facility shall not be open for business without a valid permit; and WHEREAS, stationary sidewalk food vendors continue to operate without first obtaining a valid permit from the local county health authority as provided by section 114381(a) of the California Health and Safety Code; and WHEREAS, the stationary sidewalk food vendors operating within the jurisdiction of SANTA ANA, CALIFORNIA regularly endanger the health, safety, and welfare of Santa Ana residents, visitors, and business owners in that they: a. Engage in unsanitary practices in violation of the California Health and Safety Code, including but not limited to transporting uncooked meat in an unsanitary manner and handling uncooked meat and raw food products without necessary and proper handwashing stations on -site; and b. Prepare hot food utilizing open flame without necessary and proper fire mitigation measures in place; and c. Dismantle their operation temporarily when approached by City Code Enforcement officers, Santa Ana Police officers, County of Orange Health Inspectors, or combination thereof; and d. Abandon their equipment and flee the scene when approached by City Code Enforcement officers, Santa Ana Police Officers, County of Orange Health Inspectors, or combination thereof. The abandoned equipment obstructs the public -right-of-way and constitutes a nuisance that must be mitigated at the public's expense; and Resolution No. 2023-XXX of 8 City Council 16 — 5 3/ / e. Create a nuisance and public health hazard by allowing debris to accumulate in and around their site and deliberately failing to collect and dispose of same upon dismantling their operation; and f. Create a nuisance and public health hazard by disposing of used grease on adjacent City of Santa Ana -owned and/or privately -owned grass or green areas, sidewalks and adjacent storm drains; and g. Serve food which is or has been deemed by County of Orange Health Inspectors under CH&SC Section 111030 to be unfit for human consumption leaving consumers with no redress for any ill effects of consuming same; and h. Trespass and setup their operations on private property without permission of the owner or lessee in control of said private property; and WHEREAS, in a six -week period in late 2022, the City's Code Enforcement Division in partnership with the Orange County Health Care Agency's Environmental Health Division (EHD) inspected over 100 stationary sidewalk food vending operations that were found to be selling food unfit for human consumption and operating without the proper health permit under CH&SC Section 111030; and WHEREAS, the City of Santa Ana is a champion of diversity and inclusivity through its policies and programs in the arenas of demographics, housing, and economic activities, with a progressive and community -benefits oriented General Plan and Housing Element, both comprehensively updated and adopted in 2022, that promote and celebrate the diversity of all groups in the community, specifically: a. The Land Use Element, which promotes a balance of land uses and business activities in the City by promoting new investment in key areas and preservation of existing communities in others; and b. The Economic Prosperity Element, which seeks new endeavors to diversify the City's economic base while ensuring all demographic groups in Santa Ana benefit from healthy and balanced economic development; and WHEREAS, the City of Santa Ana routinely promotes and has permitted micro ("ghost") kitchens in its industrial zones, allowing businesses to utilize shared kitchens to prepare foods in a sanitary setting designed and constructed for such activities, most recently at 2509 South Broadway and 3200 South Susan Street, to supply a surging demand for incubator spaces for food -related manufacturing, production, and mobile food vending; and WHEREAS, the City of Santa Ana has consistently demonstrated leadership in access to alternative means of acquiring household groceries and food through deliveries, pickup, mobile vending, food delivery, and to -go ordering by enacting legislation that permits and regulates these activities, specifically: Resolution No. 2023-XXX of 8 City Council 16 — 6 3/ / a. Ordinance No. NS-1654 (1982), as amended and updated from time to time, allowing and regulating home occupations through the home occupation permit process, with continued compliance with Assembly Bill (AB) 1616, the California Homemade Food Act of 2012, commonly referred to as the "Cottage Food Law"; and b. Ordinance No. NS-2133 (1991), as amended and updated from time to time, allowing and regulating pushcarts to vend food on sidewalks in a safe and responsible manor, the first of its kind in Orange County; and c. Executive Order 5-2020 and City Council Resolution No. 2022-055, which authorized outdoor dining in accordance with the "City of Santa Ana: Guide for Outdoor Business Operations" and that allowed for mobile food vending in certain city -owned parking lots; and d. Ordinance No. NS-3033 (2022), allowing and regulating outdoor dining on permanently private property, following the sunset of temporary COVID-19 regulations allowing the same; and e. Ordinance No. NS-3034 (2022), allowing and regulating mobile food trucks on private property subject to certain standards for time, place, and manner; and WHEREAS, the progressive nature of these policies and programs have cultivated a dynamic, local entrepreneurial climate and promote economic opportunities in the Santa Ana community; and WHEREAS, the presence of multiple disadvantaged, at -risk, and vulnerable communities in Santa Ana, as identified by the General Plan Update of 2022, necessitates the City's obligation to ensure that food products, including freshly -prepared foods, is safely produced and sold in a manner that does not exacerbate community health concerns; and WHEREAS, the Santa Ana community's reduced access to healthcare and health services through traditional policy coverage, access to medical clinics, medical professionals, and treatment necessitates the City's obligation to ensure that food products, including freshly -prepared foods, is safely produced and sold; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: Section 1. The Recitals set forth above are true and correct. Section 2. In accordance with the California Environmental Quality Act (CEQA), the adoption of this Resolution is not considered a "project" as defined in Section 15378 of the CEQA Guidelines and therefore is exempt from further review. Resolution No. 2023-XXX of 8 City Council 16 — 7 3/ / Section 3. The City of Santa Ana affirms its dedication and its priority to protect the health, safety and welfare of its residents, visitors, and business owners in the enforcement of State sidewalk vendor regulations, the federal Americans with Disabilities Act of 1990 (Public Law 101-336) and other disability access standards, and all local regulations pertaining to the use and maintenance of public sidewalks and other pedestrian pathways. Section 4. The City of Santa Ana urges the State Legislature of the State of California to introduce and adopt legislation to amend SB 946 and SB 972 to specifically allow local jurisdictions the right of self-determination to enact local regulations that: a. Protect and preserve the health, safety, and welfare of Santa Ana residents, visitors, and business owners; and b. Maintain an equitable, diverse, and inclusive business environment in Santa Ana wherein all types of economic activity are subject to equitable regulations that protect the health of employees and consumers; and c. Uphold the goals and policies of the Land Use Element and the Economic Prosperity Element of the Santa Ana General Plan; and d. Amend Government Code Sections 51036-51039: i. Section 51037(d) is added to Part 1 of Division 1 of Title 5 of the Government Code, to read: Nothing in this chapter shall be construed to affect the applicability of the federal Americans with Disabilities Act of 1990 (Public Law 101-336) and other disability access standards. ii. Section 51037(e) is added to Part 1 of Division 1 of Title 5 of the Government Code, to read: Nothing in this chapter shall be construed to affect the ability of a local authority, by ordinance or resolution, to adopt requirements to maintain sanitary conditions upon a public sidewalk or other pedestrian path. Section 5. This Resolution shall take effect immediately upon its adoption by the City Council, and the Clerk of the Council shall attest to and certify the vote adopting this Resolution. ADOPTED this day of , 2023. Valerie Amezcua Mayor Resolution No. 2023-XXX of 8 City Council 16 — 8 3/ / APPROVED AS TO FORM: Sonia R. Carvalho City Attorney John M. Funk Chief Assistant City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Resolution No. 2023-XXX of 8 City Council 16 — 9 3/ / CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Jennifer L. Hall, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2023 - to be the original resolution adopted by the City Council of the City of Santa Ana on Date: .2023. Clerk of the Council City of Santa Ana Resolution No. 2023-XXX City Council 16 — 10 3/7/TM5.1 of 8 Public Works Agency www.santa-ana.org/pw Item # 17 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Ordinance Amending Article XI of Chapter 33 of the Santa Ana Municipal Code AGENDA TITLE Ordinance Amending Article XI Of Chapter 33 Of The Santa Ana Municipal Code (Streets Sidewalks And Public Works) Related To Ceremonial Street Naming RECOMMENDED ACTION Approve first reading of an ordinance amending Article XI of Chapter 33 of the Municipal Code relating to ceremonial street naming. DISCUSSION On August 2, 2022, the City Council adopted Ordinance No. NS 3024 to recognize outstanding individuals or events that have made a significant impact on the community through the commemorative or honorary naming of streets or intersections. Subsequently, on January 17, 2023, the City Council expressed an interest to amend the ordinance. The amendment to the ordinance limits the number of City blocks and number of honorary topper signs that can be implememented, to be able to maximize the opportunity to honor Santa Ana individuals or events deserving of recognition. The proposed amendments to the ordinace are as follows: 1. Limit the number of city blocks to a maximum of two contiguous blocks on a single street that can be designated to recognize individuals or events; 2. Limit the number of citywide streets to one street, that can be designated to recognize individuals or events; and 3. Limit the number of sign toppers to two total sign toppers that shall be installed on either end of the section of street designated for the commemorative or honorary street naming. To continue to allow for the recognition of individuals or events that are of particular importance to the City of Santa Ana or have made significant contributions to improving the quality of life in the City, the proposed amended ordinance (Exhibit 1) amends Article XI of Chapter 33 of the Santa Ana Municipal Code that creates updated specifications when allowing the ceremonial street naming. City Council 17-1 3/7/2023 Adopt Ordinance Amending Chapter 33 of the Santa Ana Municipal Code March 7, 2023 Page 2 It is important to note that the limitations of the amended ordinace shall not apply retroactively to any ceremonial streets that have already been designated by the City Council. FISCAL IMPACT There is no fiscal impact associated with this action. EXHIBIT(S) 1. Ordinance Amending Article XI of Chapter 33 of the Santa Ana Municipal Code (Streets, Sidewalks, and Public Works) Relating to Ceremonial Street Naming Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency Approved By: Kristine Ridge, City Manager City Council 17 — 2 3/7/2023 A= : M ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING ARTICLE XI OF CHAPTER 33 OF THE SANTA ANA MUNICIPAL CODE (STREETS, SIDEWALKS AND PUBLIC WORKS) RELATING TO CEREMONIAL STREET NAMING WHEREAS, on August 2, 2022, the City Council adopted Ordinance No. NS-3024 amending Chapter 33 of the Santa Ana Municipal Code (Streets, Sidewalks and Public Works) by adding Article XI enabling ceremonial naming of streets to recognize outstanding individuals or events that have made a significant impact on the community; and WHEREAS, the number of streets in the City are finite; and WHEREAS, a limitation on the manner and number of ceremonial street signs for any one individual or event is needed to maximize the opportunity to honor Santa Ana individuals or events deserving of recognition; and WHEREAS, this limitation shall not apply retroactively to any ceremonial streets that have already been designated by the City Council. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES HEREBY ORDAIN AS FOLLOWS: Section 1. The recitals above are each incorporated by reference and adopted as findings by the City Council. Section 2. Section 33-260 (General provisions) of Article XI of Chapter 33 of the Santa Ana Municipal Code is hereby amended to read as follows: Sec. 33-260. - General provisions. (a) Only entire blocks of public streets or intersections may be granted ceremonial street names. (b) A ceremonial street naming application may only be initiated by: (1) A resident or owner of a property abutting the street; or (2) Neighborhood or community groups; or (3) A current City Councilmember. Ordinance No. NS-XXX Page 1 of 4 City Council 17 — 3 3/7/2023 MMM : M (c) Candidates for ceremonial street names shall be limited to the name of an individual, philanthropic organization, significant event or landmark. (d) Ceremonial street names shall be in the form of a "Sign Topper," which is a sheet metal sign that is placed on top of the standard City street sign identification and shall adhere to the following specifications: (1) Ceremonial street naming cannot contain a product name or be used for a commercial purpose. (2) Ceremonial street naming must be a name of an individual, philanthropic organization, landmarks or an event. (3) A ceremonial street Sign Topper must include the word "Honorary." (64) Only one (1) Sign Topper may be placed on any pole. (65) Sign Toppers shall not be attached to traffic signal mast arms. (76) Ceremonial names shall not duplicate any currently existing official street names. (87) Up to five (5) Sign Toppers may be located at any one intersection, coincident with existing street name signs. (98) Sign Toppers may not be attached to traffic signal poles. (4-99) No one (1) candidate may receive City Council approval for a Sign Topper recognition on more than one (1) street or intersection. 10 Each ceremonial street name shall cover a street section comprising a maximum of two (2) contiguous blocks and shall be applied to a single street, where no more than two (2) Sign Toppers shall be installed on existing poles at either end of the designated street section. Section 3. The City Council finds and determines that this ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the State CEQA Guidelines because it will not result in a direct or reasonably foreseeable indirect physical change in the environment, as there is no possibility it will have a significant effect on the environment and it is not a "project", as defined in Section 15378 of the CEQA Guidelines. Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any Ordinance No. NS-XXX Page 2 of 4 City Council 17 — 4 3/7/2023 A= : M court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 5. This Ordinance shall become effective thirty (30) days after its adoption. Section 6. The Clerk of the Council shall certify the adoption of this ordinance and shall cause the same to be published as required by law. ADOPTED this day of 12023. Valerie Amezcua Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: andon Salvatierra Deputy City Attorney AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers Ordinance No. NS-XXX Page 3 of 4 City Council 17 — 5 3/7/2023 MMM : M CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Norma Orozco, Acting Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS- to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Acting Clerk of the Council City of Santa Ana Ordinance No. NS-XXX Page 4 of 4 City Council 17 — 6 3/7/2023 Parks, Recreation, and Community Services www.santa-ana.org/parks Item # 18 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Senior Citizens Commission AGENDA TITLE: Senior Citizens Commission Informational Report RECOMMENDED ACTION: Accept informational report and provide direction to staff. DISCUSSION: Background At the January 17, 2023 City Council meeting, Mayor Amezcua added the following councilmember requested item: Discuss and Consider Directing the City Manager to Direct Staff to Prepare an Ordinance Establishing a Senior Citizen Commission. There was consensus among the City Council to proceed with this item. Accordingly, staff has prepared this report outlining preliminary research of different commission structures, alternatives to a commission, and a draft ordinance establishing a Senior Citizen Commission. Senior Citizen Commission Like all other boards and commissions, a Senior Citizen Commission is an advisory body that advises the City Council, particularly relating to matters concerning aging and older adults or senior citizens (the terms "older adults", "seniors", and "senior citizens" refer to individuals who are 55 years of age and older, and are used interchangeably in this report). Generally, a Senior Citizen Commission advises the City Council on the following matters: • To act in an advisory capacity to the City Council relating to service delivery pertaining to older adults. • To make recommendations to the City Council relating to services provided by the City to older adults. • To make recommendations to the City Council relating to policies and plans relating to older adults. City Council 18 — 1 3/7/2023 Senior Citizens Commission March 7, 2023 Page 2 • To facilitate coordination between the City of Santa Ana and external government agencies that provide services to older adults • To carry out such studies as may be assigned to it by the City Council. • To report to the Mayor and City Council its findings from time to time. Similar to how all other City boards and commissions are established, a Senior Citizen Commission would include seven members, each nominated by a member of the City Council and appointed by a majority vote of the City Council. With the exception of the citywide commissioner seat nominated by the Mayor who would serve a two-year term, each commissioner would serve a term of four years. The Senior Citizen Commission would meet regularly, establish bylaws concerning their scope of work, and report to the City Council from time to time. For discussion only, attached is a draft ordinance establishing a Senior Citizen Commission (Exhibit 1). Staff researched surrounding municipalities with existing or prior Senior Citizen Commissions and found that most Senior Citizen Commissions were disbanded due to time commitment requirements and lack of participation from the community. Alternatives to Establishing a Senior Citizen Commission Below are alternatives to establishing a stand-alone Senior Citizen Commission. Add Two Seats to the Parks and Recreation Commission to Represent Older Adults Add two more seats to our current Parks, Recreation, and Community Services Commission to make a Commission of nine members, whereby the two new members are older adults. Under this model, the Mayor and Mayor Pro Tern would each select an additional person to fill the two seats. These two commissioners would provide insight into the Parks, Recreation, and Community Services Agency's service delivery for older adults. Direct Staff to Establish a Senior Committee At the direction of the City Council, staff may establish a Senior Committee — a group of individuals appointed to engage in a short-term study or to advise staff on matters relating to older adults. Direct Staff to Establish a Senior Task Force The City Council may direct staff to form a Task Force to accomplish one or more specific objectives. A Task Force would meet as often as necessary, and would operate in a purely functional capacity. Establish a City Council Standing Subcommittee to Discuss Matters Relating to Older Adults The City Council may establish a standing subcommittee to discuss matters relating to City Council 18 — 2 3/7/2023 Senior Citizens Commission March 7, 2023 Page 3 older adults. Standing subcommittees are subject to provisions of the Brown Act. City Council Ad -Hoc Committee to Discuss Matters Relating to Older Adults As an alternative to a standing subcommittee, the Mayor may establish an ad hoc committee ad hoc committee to discuss matters relating to older adults. The ad hoc committee would generally serve only a limited or single purpose, would not be perpetual, and would dissolve when its specific task is completed. Recommendation At this time, staff recommends adding two more seats to the existing Parks, Recreation, and Community Services Commission to make a Commission of nine members to include older adults who would serve on the Commission provide insight into the Parks, Recreation, and Community Services Agency's service delivery for older adults. FISCAL IMPACT There is no fiscal impact associated with this action. EXHIBIT(S) 1. Draft ordinance for discussion only Submitted By: Hawk Scott, Executive Director of Parks, Recreation and Community Services Approved By: Kristine Ridge, City Manager City Council 18 — 3 3/7/2023 DIVISION X. - SENIOR CITIZENS COMMISSION Sec. X-XXX. — Establishment and purpose. There is hereby established a Senior Citizens Commission (hereinafter referred to as the "Commission"). The purpose of the commission shall be to advise the City Council on matters relating to service delivery pertaining to older adults. Sec. X-XXX. — Senior Citizens Commission membership and term. The Commission shall be composed of seven (7) members who shall be residents of the city. The provisions of section 2-326 of this Code shall govern the appointment, removal, vacancies, and term of members of the commission. Sec. X-XXX. — Qualifications of commissioners. Each member of the commission shall be at least 55 years of age. Sec. X-XXX. - Meetings. The commission shall meet at dates and times set forth in the bylaws of the commission. The bylaws shall be approved by the City Council. Sec. X-XXX. — Organization The Senior Citizens Commission shall elect from its members a chairperson and vice chairperson, each of whom shall serve in such position for the term of one (1) year. No member shall serve in the position of chairperson for more than one (1) term. Sec. X-XXX. - Responsibilities and duties of commission. The Senior Citizens Commission shall have the following responsibilities and duties: a. To act in an advisory capacity to the City Council relating to service delivery pertaining to older adults. b. To make recommendations to the City Council relating to services provided by the City to older adults. G. To make recommendations to the City Council relating to policies and plans relating to older adults. d. To facilitate coordination between the City of Santa Ana and external government agencies that provide services to older adults e. To carry out such studies as may be assigned to it by the City Council. f. To report to the Mayor and City Council its findings from time to time. City Council 18 — 4 3/7/2023 '�� City Council ;.� www.santa-ana.org/city-council Item # 20 Dk City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 7, 2023 TOPIC: Amending Subcontractor Disclosure Ordinance AGENDA TITLE: Discuss and Consider Directing the City Manager and City Attorney to Direct Staff to Prepare an Ordinance Amending Section 8-6 of the Santa Ana Municipal Code to Increase Transparency and Accountability Regarding Contractor and Subcontractor Disclosures RECOMMENDED ACTION Direct staff to prepare Ordinance 23- An Ordinance of the City Council of the City of Santa Ana, Amending Section 8-6 of Chapter 8 of Article 1 of the Santa Ana Municipal Code Relating to Disclosure of License and Insurance Requirements of Contractors and Subcontractors for adoption at the first regularly scheduled City Council meeting in April 2023. DISCUSSION Construction workers are often exploited by contractors doing business in Santa Ana, often in the form of wage theft, fraudulent business practices, and unsafe working conditions. The City's Municipal Code currently requires contractors to disclose information regarding their subcontractors, including insurance and license information. However, such disclosures do not include information on pending and/or prior enforcement actions for any state or federal labor violations. Amending the City's Code to ensure such disclosures occur —and enforcing existing fines and imposing stop work orders for failure to comply with disclosure requirements —helps to ensure safe working conditions and transparent and fair contracting without slowing down construction or making it harder to build in Santa Ana. Fines collected by the City shall go to offset any administrative and enforcement costs relating to the existing and amended ordinance. EXHIBIT(S) 1. Draft Ordinance Submitted By: Councilmember Thai Viet Phan City Council 20-1 3/7/2023 EXHIBIT A ORDINANCE NO. 23- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA, AMENDING SECTION 8-6 OF CHAPTER 8 OF ARTICLE 1 OF THE SANTA ANA MUNICIPAL CODE RELATING TO DISCLOSURE OF LICENSE AND INSURANCE REQUIREMENTS OF CONTRACTORS AND SUBCONTRACTORS WHEREAS, the City Council of the City of Santa Ana has previously adopted changes and improvements to the baseline requirements of the California Building Codes, as reflected in Section 8-6 of the Santa Ana Municipal Code; and WHEREAS, Section 8-6 of the Santa Ana Municipal Code contains a series of existing requirements, disclosures, and penalties for non-compliance relating to the identification of contractors who will be utilized in connection with work authorized by City -issued permits; and WHEREAS, the disclosure mandated by Section 8-6 can be strengthened and enhanced by (i) expanding the scope of disclosure to include whether each subcontractor or its principals has any pending and/or prior enforcement actions for any state or federal labor violations or paid any penalties to a government agency related to the provisions of the California Labor Code, (ii) clarifying that subcontractor disclosures must be updated prior to the commencement of work on a project, and prior to adding or replacing a subcontractor after work commences, and (iii) allowing the City the right to issue a stop work order if a contractor fails to comply with its disclosure obligations. NOW, THEREFORE, the City Council of the City of Santa Ana DOES HEREBY ORDAIN as follow:...u:. .�uw, SECTION 1. The above recitals are true and correct and are incorporated here. SECTION 2. Section 8-6 of Chapter 8 of Article I of the Santa Ana Municipal Codes is hereby amended, with additions shown in double underlining read in its entirety as follows: < K)-*% — Sec. 8-6. - License requirements of contractors and subcontractors. A) No person shall be issued a permit to perform work requiring a permit under this Code, unless they are: 1. A licensed contractor; 2. An employee, agent or authorized representative of a licensed contractor; 3. A representative of an electronically subscribed service acting on behalf of a licensed contractor; or 4. The property owner performing their own work; 5. An employee of the owner, provided that the owner shows evidence of workers' compensation insurance required by state and city law, and their federal tax identification number. B) Subsections (C) and (D)of this Section shall apply to permits involvine: 1. Twenty (20) or more dwelling units, including single-family_ dwelling units in a subdivision, in a new residential or mixed -use development. City Council 20 — 2 3/7/2023 EXHIBIT A 2. Twenty -thousand (20,000) square feet of tenant improvements. or 20,000 square feet of additional gross floor area, in new or existing commercial or industrial developments. C) At the time of permit issuance and prior to the commencement of work, the applicant shall submit a list of all subcontractors and provide verification of each subcontractor's workers' compensation insurance, state contractor license and license category, city business license and federal tax identification number and show verification whether each subcontractor or its principals has any ending and/or prior enforcement actions for any state or federal labor violations or paid any penalties to a government agency related to the provisions of the California Labor Code. No person shall contract or subcontract construction work without a valid contractor's license pursuant to applicable provisions of the state business and professions code. D) In the event that the applicant cannot provide a list of valid subcontractors upon permit application or later at the time of adding or replacing a subcontractor, the applicant shall provide to the city, within two business days after issuance of each permit but prior to commencement of any work pursuant to said permit, all information required by subsection (C). Failure to pr vide valid and current subcontractor listings prior to commencing work shall result in: 1. Stop Work Order 2. Revocation of any permit issued by the city; and 3. The permit applicant paying a penalty for default to the city in an amount equal to the original permit fee for each violation in order to defray city costs of enforcement of this section prior to the issuance of any new permit. Any work performed prior to satisfying the requirements of this section shall be deemed performed without the required permits. City Council 20 — 3 3/7/2023