HomeMy WebLinkAbout4.8 Grant Agreement for New Open Heart Kitchen FacilitySTAFF REPORT
CITY COUNCIL
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Agenda Item 4.8
DATE:April 20, 2021
TO:Honorable Mayor and City Councilmembers
FROM:Linda Smith, City Manager
SUBJECT:Grant Agreement for New Open Heart Kitchen Facility
Prepared by: Jim Bergdoll, Senior Planner
EXECUTIVE SUMMARY:
The City Council will consider approval of a Grant Agreement with TriValley BMR, LLC for
$330,000 using Community Development Block Grant (CDBG) funding to construct a new kitchen
facility for Open Heart Kitchen as part of a larger 24-unit supportive housing development known
as Vineyard 2.0 located in Livermore and providing services to Tri-Valley residents.
STAFF RECOMMENDATION:
Adopt a Resolution Approving a Grant Agreement with TriValley BMR, LLC to Provide Funding
for a New Open Heart Kitchen Facility.
FINANCIAL IMPACT:
The $330,000 grant is being funded by the CDBG Grant Program administered by Alameda County
Housing and Community Development Department on behalf of Urban County cities including
Dublin.
DESCRIPTION:
Background
Open Heart Kitchen serves free meals to Dublin residents in need in several ways. They serve hot
meals at the Dublin Senior Center and Valor Crossing community room and provide bag lunches to
schools when in session. During the COVID-19 pandemic, Open Heart Kitchen expanded services
to provide additional meals. They currently operate in a temporarily leased facility and serve the
broader Tri-Valley, but need a larger, more permanent home.
In 2018, the Housing Consortium of the East Bay (HCEB) secured a site in Livermore and designed
a project known as Vineyard 2.0, including 24 supportive housing apartments, various common
facilities, and space for Open Heart Kitchen. Open Heart Kitchen is responsible for the cost to build
out their tenant space within the project.
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Proposed Funding
Open Heart Kitchen requested funding from the City of Dublin to help fill a funding gap for their
space at Vineyard 2.0. The grant will supplement the funds already committed to the project,
including $3,526,000 from Livermore and $210,000 from Pleasanton. Open Heart Kitchen has
entered into an MOU with HCEB that, among other things, addresses the need for a long-term
lease for the space. The lease will be entered into prior to construction of the kitchen this fall and
will have an initial term of 10 years plus six extension options of five years each. Open Heart
Kitchen will submit an annual report to the City for 10 years documenting how the facility is being
used to serve Dublin residents.
City Staff submitted a CDBG application to Alameda County HCD in February 2020 for $330,000 in
funding for Open Heart Kitchen available to Urban County cities for Capital Projects. The proposal
received endorsement from the Urban County Technical Advisory Committee. In June 2020, the
County Board of Supervisors approved an amendment to the City’s CDBG Contract to add this
Capital Grant. However, execution of a Grant Agreement (Attachment 2) needed to wait until
environmental review was completed
The Vineyard 2.0 project now has the permits and approvals necessary to begin construction. The
Environmental Assessment for CDBG-Funded Proposals was completed in fall 2020 with a
published Finding of No Significant Impact. The U.S. Department of Housing and Urban
Development approved the “Authority to Use Grant Funds” on January 27, 2021. Approved
expenses covered under the grant will be reimbursed by the City of Dublin using the CDBG Capital
Grant funds. HCD will then disburse the grant funds to the City after the required documentation
is submitted.
Staff is recommending that the City Council adopt the resolution (Attachment 1) authorizing the
City Manager to enter into the Grant Agreement (Attachment 2) with TriValley BMR, LLC for
$330,000 in CDBG funding for this project.
STRATEGIC PLAN INITIATIVE:
None.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
The City Council Agenda was posted.
ATTACHMENTS:
1) Resolution Approving a Grant Agreement with TriValley BMR, LLC to Provide Funding for a
New Open Heart Kitchen Facility
2)Exhibit A to the Resolution - Grant Agreement between the City of Dublin and TriValley BMR,
LLC
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Attachment 1
RESOLUTION NO. XX - 21
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING A GRANT AGREEMENT WITH TRIVALLEY BMR, LLC TO PROVIDE
FUNDING FOR A NEW OPEN HEART KITCHEN FACILITY
WHEREAS,Open Heart Kitchen is a Tri-Valley-based 501(c)(3) non-profit that
has been partnering with the City of Dublin to serve meals to residents in need, and has
requested funding to build a new permanent kitchen facility (Project); and
WHEREAS,TriValley BMR, LLC (Grantee) entered into a Memorandum of
Understanding (MOU) with Open Heart Kitchen of Livermore to build the Project as part
of a mixed-use project in Livermore to better serve the residents of the Tri-Valley
including Dublin; and
WHEREAS, the County of Alameda (County) has entered into a Grant
Agreement with the United States Department of Housing and Urban Development
(HUD) for Community Development Block Grants (CDBG) under the Housing and
Community Development Act of 1974 and the regulations promulgated thereunder 24
CFR Sections 570 et seq., with said funds to be used for CDBG Programs and its
eligible activities; and
WHEREAS,the County Board of Supervisors approved a $330,000 allocation of
Fiscal Year 2019-20 CDBG Capital funds for the Project, and the City of Dublin entered
into a contract amendment on the 23rd day of June 2020 with the County to incorporate
these additional funds into the City’s existing contract with the County for Urban County
CDBG programs and services; and
WHEREAS,in accordance with the National Environmental Policy Act of 1969,
as amended (42 USC 4321-4347) (NEPA), the environmental review has been
completed for all applicable activities proposed to be undertaken under the Grant
Agreement with TriValley BMR, LLC, and certified by the Alameda County Department
of Housing and Community Development, and furthermore the California Environmental
Quality Act (CEQA) imposes no conditions on the City's consideration and approval of
the Grant Agreement because the Project is exempt from CEQA requirements under
the categorical exemption set forth in 14 California Code of Regulations Section 15332;
and
WHEREAS,the Grant Agreement between the City of Dublin and TriValley BMR,
LLC, attached hereto as Exhibit A, reflects the terms for this Project and the use of this
$330,000 grant.
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NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Dublin does hereby approve the Grant Agreement with TriValley BMR, LLC, Attached
hereto as Exhibit A, for use of CDBG Capital funds.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
Grant Agreement and take such further actions as may be necessary or appropriate to
carry out the City Council’s obligations pursuant to this Resolution.
PASSED, APPROVED AND ADOPTED this 20th day of April 2021, by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
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Attachment 2
GRANT AGREEMENT BETWEEN
THE CITY OF DUBLIN
AND
TRIVALLEY BMR, LLC
This Community Development Block Grant Capital Grant Agreement (“Agreement”) is made and entered
into between the City of Dublin ("City") and TriValley BMR, LLC (“Grantee”) as of April 20, 2021(“Effective
Date”). City and Grantee are hereafter collectively referred to as the “Parties.”
Recitals
A.Grantee entered into a Memorandum of Understanding (“MOU”) with Open Heart Kitchen of
Livermore, a Tri-Valley-based 501(c)(3) non-profit that serves people in Dublin (serving meals prepared
in a central commercial kitchen location to seniors and anyone in need at various sites in Dublin) to build
a permanent kitchen facility (hereafter the “Project”) as part of a mixed-use project in Livermore to better
serve the residents of the Tri-Valley including Dublin.
B.The County of Alameda (“County”) has entered into a Grant Agreement with the United States
Department of Housing and Urban Development (“HUD”), for a Community Development Block Grant
(“CDBG”) under the Housing and Community Development Act of 1974 (“Act”) and the regulations
promulgated thereunder 24 CFR Sections 570 et seq. (“Regulations”), said funds to be used for
Community Development Block Grant Programs and its eligible activities (“HUD Grant Agreement”).
C.The County is the federal grantee for the Alameda County Urban County (“Urban County”) CDBG
Program which covers the City of Dublin. The City is eligible for entitlements of CDBG funds based on
its participation in the Urban County and the County has allocated CDBG Funds to the City based on
said participation.
D.The City and the County identified $330,000 available from the CDBG Urban County Capital
Projects Pool to fund the Project, received endorsement from the Urban County CDBG Technical
Advisory Committee and approval from the County Board of Supervisors.
E.The City of Dublin entered into a contract amendment on the 23rd day of June 2020 with the
County to incorporate additional funds from the Urban County Capital Projects Pool for the Project into
the contract entered into on the 6th day of August, 2019 between the City and the County for Urban
County CDBG programs and services (“City/County Agreement”).
F.In accordance with the National Environmental Policy Act of 1969, as amended (42 USC 4321-
4347) (“NEPA”), the City of Livermore has completed and approved all applicable environmental review
for the activities proposed to be undertaken under this Agreement, and it was certified by the Alameda
County Department of Housing and Community Development. The California Environmental Quality Act
(Public Resources Code Sections 21000 et seq.) (“CEQA”) imposes no conditions on the City's
consideration and approval of this Agreement because the Project is exempt from CEQA requirements
under the categorical exemption set forth in 14 California Code of Regulations Section 15332.
G.The activities of the Grantee under this Agreement with the City shall be governed by the
conditions of the HUD Grant Agreement and the City/County Agreement.
H.In consideration of the Project benefits to be provided by Grantee to residents in Dublin, the City
desires to provide a subaward to Grantee to carry out the work as provided in the Agreement.
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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiently of which are hereby
acknowledged, the Parties to this Agreement agree as follows:
1.Term. This Agreement takes effect as of the Effective Date first written above and terminates on
December 31, 2022, or when all contract terms have been completed, whichever shall first occur.
2.Grant. The City shall disburse to the Grantee a sum not to exceed $330,000 in accordance with
Exhibit B (“Budget”) to this Agreement for the performance described in Exhibit A (“Work Program”), said
exhibits are attached hereto and incorporated herein by reference. The funds disbursed by the City under
this Agreement are referred to as “Grant Funds.”
3.Grantee’s Obligations.
3.1 Subject to the terms and conditions herein, Grantee agrees to use the Grant Funds
received pursuant to this Agreement solely to perform the work described inExhibit A. Grantee certifies
that the activities carried out under this Agreement will meet the CDBG program’s National Objectives.
Grantee shall not use the Grant Funds for any other purposes without the prior written approval of the
City pursuant to Section 12.
3.2 Reports. Grantee shall provide a quarterly report for the term of the Agreement or until the
funds are completely expended. The report shall include,but shall not be limited to the following
data elements:
3.2.1 Title of program, components, and a description of how the Grant Funds have been
used to support Dublin residents.
3.2.2. The quarterly report shall be due on the fifteenth day of the month immediately
following the report quarter, except for the end of the program year report which is due
within thirty days.
3.2.3. In addition to the information listed here, Grantee must provide any other
information requested by City as it relates to the Grant Funds.
3.2.4 Grantee’s obligation to the City does not end until all closeout requirements are
completed. Activities during this closeout period shall include, but are not limited to
reports, audits, and all other applicable requirements in this Agreement and all Exhibits.
3.3 Grantee agrees to keep the Grant Funds separate from all other funds under its control
by use of separate accounts. Grantee shall not use the Grant Funds to supplant funding provided by
the City to the Grantee under any other agreement.
3.4 Grantee agrees that use of Grant Funds for any purpose not approved herein, and/or any
use not in compliance with this Agreement will result in forfeiture of funds and potential ineligibility for
future funding.
3.5 Any time extension granted to the Grantee to enable the Grantee to complete the work
shall not constitute a waiver of rights the City may have under this Agreement. Should the Grantee
not complete the work by the scheduled date or by an extended date, granted by the City in writing,
pursuant to previously stated conditions, the City shall be released from all conditions of this
Agreement.
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3.6 Upon completion of performance under this Agreement and a determination of final costs,
the Grantee shall provide the City and the County with a certificate of completion for construction projects
and a closeout report that includes all the following: (i) an itemized list of all expenditures of Grant Funds;
(ii) the name of each Grantee who is paid with Grant Funds; (iii) the amount of each contract for the
purchase of goods or services that is paid for in whole or in part with Grant Funds; (iv) a copy of each
contract for the purchase of goods or services that is paid for in whole or in part with Grant Funds; (v) all
information required to be reported under this Agreement; and (vi) any other information that the City
may request to demonstrate that the Grant Funds were used solely in accordance with the Act, the
Regulations, and any other CDBG program rules.
3.7 Any costs that are determined by subsequent audit to be unallowable are subject to
repayment by the Grantee to the City within sixty days unless the City approves in writing an alternative
repayment plan.
3.8 Program Monitoring and Evaluation. Grantee shall be monitored and evaluated in terms of
its effectiveness and timely compliance with the provisions of this Agreement, the Act, the Regulations,
and conditions of the HUD Grant Agreement and the City/County Agreement, and the effective and
efficient achievement of the program objectives as described in Exhibit A.
3.9 Records. During the term of this Agreement and for five years after the City makes the last
disbursement of Grant Funds to the Grantee, the Grantee shall keep appropriate books, records, and
accounts in connection with the Grant Fundsand activities performed under this Agreement and is subject
to the following:
3.9.1 The Grantee shall maintain all records related to this Agreement in accordance with
applicable Regulations and generally accepted accounting practices, including, but not
limited to the following records: (i) general ledger and subsidiary ledgers used to account
for the receipt of Grant Funds and the disbursements from Grant Funds to meet eligible
expenses; (ii) receipts of purchases made related to approved budget; (iii) contracts and
subcontracts entered into using Grant Funds and all documents related to such contracts;
(iv) all documentation of reports, audits, and other monitoring of contractors,
subcontractors, the Grantee; (v) all documentation supporting the performance outcomes
of contracts, subcontracts, and this Agreement; (vi) all internal and external
email/electronic communications related to use of Grant Funds; and (vii) all investigative
files and inquiry reports involving Grant Fund payments.
3.9.2 The Grantee shall make its books, records, and accounts available for review upon
request by the City or the County. Grantee shall be responsible for maintaining all
Grantee’s project records pertaining to this Agreement, including Grantee’s accounting
records, employment records, and project work records for all employees, subcontractors,
and suppliers, including this Agreement, change orders, requests for clarifications,
instructions from HCD, contracts with suppliers and subcontractors, correspondence,
submittals, samples, shop drawings, invoices, receipts, vouchers, purchase orders, notes,
daily logs, and memoranda relating to the work. This includes subcontracts and
expenditures, and all other financial and property records in conformance with 2 CFR Part
200.
3.9.3 Records must be kept accurate and up-to-date. Failure of Grantee to comply with
this provision could result in termination of this Agreement or Grantee's repayment of
funds previously awarded under this Agreement.
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3.9.4 The Grantee shall follow audit requirements of the Single Audit Act and 2 CFR Part
200.
3.10 Audit Report. In addition to the reporting requirements listed above, Grantee shall
commission an independent auditing firm to prepare and file with the City an annual audit report for each
year during the term of this Agreement. Grantee’s failure to submit the audit report may result in the
termination of the Agreement. The audit report is to be submitted to the City by March 30th of each year
during the term of this Agreement. The audit report should state that an audit was made in accordance
with the provisions of 2 CFR Part 200.
3.11 Reversion of Assets. The use and disposition of real property and equipment under this
Agreement shall be in compliance with the requirements of 24 CFR Part 84 and 24 CFR 570.502,
570.503, and 570.504, as applicable, which include but are not limited to the following:
3.11.1 Grantee shall transfer to the City any Grant Funds on hand and any accounts
receivable attributable to the use of funds under this Agreement at the time of expiration,
cancellation, or termination.
3.11.2 Real property under the Grantee’s control that was acquired or improved, in whole
or in part, with Grant Funds under this Agreement in excess of $25,000 shall be used to
meet one of the CDBG National Objectives pursuant to 24 CFR 570.208 until five (5) years
after expiration of this Agreement or disposed of in a manner that results in City being
reimbursed at fair market value less value attributable to non-CDBG expenditures.
3.12 Program Income. Any program income, as such term is defined in the Regulations,
received by Grantee shall be retained by Grantee. The program income received by Grantee shall solely
be used for the Project or for the purpose of operating the commercial kitchen facility. All provisions of
this Agreement shall apply to activities funded by program income. All program income shall be expended
by Grantee before the City is obligated to advance any other Grant Funds to Grantee under this
Agreement.
3.13 Subcontracts. Grantee shall not enter into any subcontracts for the performance of work
under of this Agreement without the written consent of the City prior to the execution of such subcontract.
Grantee shall cause all of the provisions of this Agreement in its entirety to be included in and made a
part of any subcontract executed in the performance of this Agreement.
3.14 Religious Activity Prohibition. Grantee agrees that Grant Funds provided under this
Agreement will not be utilized for inherently religious activities prohibited by 24 CFR 570.200(j), such as
worship, religious instruction, or proselytization.
4.City’s Obligations. For the Work Program described in Section 2 (Exhibit A), City shall disburse
to the Grantee reimbursement for eligible designated costs shown in the approved Budget (Exhibit B),
subject to the terms of this Agreement and City’s receipt of a W9 form from Grantee.
5.Federal Subrecipient Requirements. Grantee agrees to comply with all applicable requirements
of Title 24 of the Code of Federal Regulations, Part 570. Grantee also agrees to comply with all other
applicable Federal, state and local laws, regulations, and policies governing the Grant Funds provided
under this contract. The laws and regulations governing the use of the Grant Funds include (but are not
limited to) the following:
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5.1 Labor Standards. Grantee agrees to comply with the requirements of the Secretary of
Labor in accordance with the Davis-Bacon Act as amended, the provisions of Contract Work Hours and
Safety Standards Act (40 U.S.C. 327 et seq.) and all other applicable Federal, state and local laws and
regulations pertaining to labor standards insofar as those acts apply to the performance of this
Agreement. Grantee agrees to comply with the Copeland AntiKick Back Act (18 U.S.C. 874 et seq.) and
its implementing regulations of the U.S. Department of Labor at 29 CFR Part 5, as applicable. Grantee
shall maintain documentation that demonstrates compliance with hour and wage requirements of this
part. Such documentation shall be made available to the City for review upon request.
5.2 For the Employment and Contracting Opportunities requirements under Section 3 of the
HUD Act of 1968, as amended - see Exhibit C.
5.3 For the prohibition on the use of debarred, suspended, or ineligible contractors as set forth
in 24 CFR Part 24 - see Exhibit D.
5.4 Environmental Standards. In accordance with 24 CFR Part 58, the Grantee shall not
commence work on the proposed project until the environmental review has been completed. A copy of
the Environmental Review is contained within the Environmental Review file and is made a part of this
contract by reference.
6.Grantee Representations and Warranties. Grantee warrants that it is duly organized under
applicable laws of the State of California, is qualified to do business in the City, and is in compliance in
all material respects with all laws and regulations necessary to perform under this Agreement. Grantee
warrants that it shall perform the Project and operate the facility in accordance with all ordinances,
resolutions, statutes, rules, and regulations of the City and any Federal, State or local governmental
agency having jurisdiction in effect at the time service is rendered. Grantee further represents and
warrants to the City as follows:
6.1 Grantee has read and is familiar with all of the terms and provisions of the Act and the
Regulations applicable to Grantee.
6.2 Grantee is a duly organized entity permitted to receive CDBG funds under the Act and the
Regulations.
6.3 The use of the facility, the Project, and the expenses to be reimbursed by the Grant Funds,
as described in the Budget, are permitted uses of CDBG funds under the Act and the Regulations.
7.Relationship of Parties. Nothing contained in this Agreement shall be construed as creating the
relationship of employer and employee or principal and agent between City and Grantee or Grantee’s
agents or employees, and Grantee shall at all times be wholly responsible for the manner in which it or
its agents, or both, perform under this Agreement. The Grantee shall at all times remain an “independent
contractor” with respect to the work to be performed under this Agreement. Except as City may specify
in writing, Grantee shall have no authority, express or implied, to act on behalf of City in any capacity
whatsoever as an agent or to bind City to any obligation whatsoever.
Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary,
Grantee and any of its employees, agents, and subcontractors providing services under this Agreement
shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any
compensation, benefit, or any incident of employment by City, including but not limited to eligibility to
enroll in the California Public Employees Retirement System (PERS) as an employee of City and
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entitlement to any contribution to be paid by City for employer contributions and/or employee
contributions for PERS benefits.
8.Indemnification. To the maximum extent allowed by law, Grantee shall indemnify, defend with
counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and
volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including
without limitation, attorney’s fees and costs and fees of litigation) (collectively, “Liability”) of every nature
arising out of or in connection with Grantee’s performance under this Agreement or its failure to comply
with any of its obligations contained in this Agreement, except such Liability caused by the active
negligence or willful misconduct of City.Grantee’s responsibility for such defense and indemnity
obligations shall survive the termination or completion of this Agreement for the full period of time allowed
by law. The defense and indemnification obligations of this Agreement are undertaken in addition to, and
shall not in any way be limited by, the insurance obligations contained in this Agreement. If any judgment
is rendered against City or any of its elected or appointed officials or any of its employees, agents, and
representatives in any such action, suit, or claim, Grantee shall, at its expense, satisfy and discharge the
judgment.
Notwithstanding the forgoing, to the extent this Agreement is a “construction contract” as defined by
California Civil Code Section 2782, as may be amended from time to time, such duties of Grantee to
indemnify shall not apply when to do so would be prohibited by California Civil Code Section 2782.
In the event that Grantee or any employee, agent, or subcontractor of Grantee providing services under
this Agreement is determined by a court of competent jurisdiction or the California Public Employees
Retirement System (PERS) to be eligible for enrollment in PERS as an employee of City, Grantee shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Grantee or its employees, agents, or subcontractors, as well
as for the payment of any penalties and interest on such contributions, which would otherwise be the
responsibility of City.
9.Insurance.Grantee shall procure and maintain, at all times during the performance of the work,
Statutory Workers’ Compensation Insurance and Employer’s Liability Insurance in conformance with
the laws of the State of California and Federal laws, where applicable, in an amount not less than One
Million Dollars ($1,000,000) per accident or disease.
Grantee shall also procure and maintain at all times during the term of this Agreement, Commercial
General Liability Insurance (including automobile operation) and Automobile Insurance covering Grantee
and City for liability arising out of the operations of Grantee and any subcontractors. Each policy shall
include coverage for all vehicles, licensed or unlicensed, on or off City’s premises, used by or on behalf
of Grantee for the performance of work under this Agreement. Commercial General Liability Insurance
shall provide coverage of not less than One Million Dollars ($1,000,000) per occurrence and Two Million
Dollars ($2,000,000) aggregate. Automobile Insurance should be no less than One Million Dollars
($1,000,000) per accident. Both Commercial General Liability and Automobile Insurance shall name as
additional insured, in connection with Grantee’s activities, City, its elected and appointed officials, and its
employees, agents, representatives, and volunteers. Commercial general coverage shall be at least as
broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (most recent
edition) covering comprehensive General Liability on an “occurrence” basis. Automobile coverage shall
be at least as broad as Insurance Services Office Automobile Liability form CA 0001, Code 1 (any auto).
Grantee shall also procure and maintain Builders' risk insurance during the course of the construction,
and, upon completion of construction, property insurance covering the Project, in form appropriate for the
nature of such property, covering all risks of loss, excluding earthquake, for one hundred percent (100%)
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of the replacement value, with deductible, if any, acceptable to the City, naming the City as a Loss Payee,
as its interests may appear. Flood insurance shall be obtained if required by applicable federal
regulations.
9.1 All insurance required by this section is to be placed with insurers with a Bests' rating of
no less than A:VII. Each of the insurance providers on behalf of the contractor(s) or subcontractor(s) shall
agree that its policy is primary insurance and that it shall be liable for the full amount of any loss up to
and including the total limit of liability without right of contribution from any other insurance covering City.
9.2 Prior to commencement of work hereunder, Grantee shall deliver to City a certificate of
insurance which shall indicate compliance with the insurance requirements of this Section 9. City
reserves the right to obtain a full certified copy of any insurance policy and endorsements during this
time. Failure to exercise this right shall not constitute a waiver of right to exercise later.
9.3 It shall be a requirement under this Agreement that any available insurance proceeds
broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall
be available to City as an additional insured. Furthermore, the requirements for coverage and limits shall
be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and
maximum limits of coverage of any insurance policy or proceeds available to the named insured;
whichever is greater. The additional insured coverage under the Grantee’s policy shall be “primary and
non-contributory” and will not seek contribution from City’s insurance or self-insurance and shall be at
least as broad as CG 20 01 04 12. In the event Grantee fails to obtain or maintain coverage as required
by this Agreement, the City at its sole discretion may purchase the coverage required and the cost will
be paid by Grantee. Each policy shall include an endorsement providing that it shall not be cancelled,
changed, or allowed to lapse without at least thirty (30) days’ prior written notice to City of such
cancellation, change, or lapse.
9.4 All self-insured retentions (SIR) and/or deductibles must be disclosed to City for approval
and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision
or deductibles shall provide or be endorsed to provide that the SIR and/or deductibles may be satisfied
by either the named insured or City.
9.5 Pursuant to the provisions of this Agreement, insurance effected or procured by the
Grantee shall not reduce or limit Grantee’s contractual obligation to indemnify and defend the City, and
acceptance of Grantee’s insurance by City shall not relieve or decrease the liability of Contractor
hereunder. Inclusion of City, its elected and appointed officials, and its employees, agents,
representatives, and volunteers as additional insured shall not in any way affect its rights with respect to
any claim, demand, suit, or judgment made, brought or recovered against Grantee. Such policy shall
protect Grantee and City in the same manner as though a separate policy had been issued to each, but
nothing in the policy shall operate to increase the insurer's liability as set forth in the policy beyond the
amount or amounts shown or to which the insurer would have been liable if only one interest had been
named as an insured.
9.6 If the policies of insurance obtained and maintained by Grantee under this Section 9
provide coverage on a claims-made rather than occurrence-based basis, Grantee shall maintain such
coverage, or obtain comparable tail coverage, for the period following termination of this Agreement until
the expiration of all applicable statutes of limitations.
9.7 City, its elected and appointed officials, and its employees, agents, representatives, and
volunteers shall be covered as additional insureds with respect to liability arising out of activities
performed by or on behalf of Grantee, as well as products and completed operations of Grantee.
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9.8 Grantee shall include all subcontractors as an insured (covered party) under its policies
or shall furnish separate certificates and endorsements for each subcontractor. All coverages for
subcontractors shall be subject to all of the requirements stated herein. Grantee shall not allow any
subcontractor to commence work on any subcontract until Grantee has obtained all insurance required
herein for the subcontractor(s) and provided evidence to City that such insurance is in effect.
10.Nondiscrimination and Equal Opportunity. During the performance of this Agreement,
Grantee shall not discriminate, on the basis of a person’s race, sex, gender, religion (including religious
dress and grooming practices), national origin, ancestry, physical or mental disability, medical condition
(including cancer and genetic characteristics), marital status, age, sexual orientation, color, creed,
pregnancy, genetic information, gender identity or expression, political affiliation or belief, military/veteran
status, or any other classification protected by applicable local, state, or federal laws (each a “Protected
Characteristic”), against any employee, applicant for employment, subcontractor, bidder for a
subcontract, or participant in, recipient of, or applicant for any services or programs provided by Grantee
under this Agreement. Grantee shall comply with all applicable federal, state, and local laws, policies,
rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting,
and the provision of any services that are the subject of this Agreement, including but not limited to the
satisfaction of any positive obligations required of Grantee thereby.
11.Licenses; Permits. Grantee shall obtain, at its sole cost and expense, such licenses, permits
and approvals as may be required by law for the performance of the Project and the operation of the
facility.
12.Termination. City may terminate this Agreement in whole or in part immediately for cause, which
shall include as example but not as a limitation:
12.1 Failure, for any reason, of Grantee to fulfill in a timely and proper manner its obligations
under this Agreement, including compliance with City, State and Federal laws and regulations
and applicable directives;
12.2 Failure to meet the performance standards contained in other sections of this Agreement;
12.3 Improper use or reporting of funds provided under this Agreement; and
12.4 Suspension or termination by HUD of the grant to the County, or by County to City, under
which Agreement is made, or the portion thereof delegated by this Agreement.
In accordance with 24 CFR 85.44, this Agreement may also be terminated for convenience by either the
Grantee or the City, in whole or in part, by setting forth the reasons for such termination, the effective
date, and, in the case of partial termination, the portion to be terminated. However, if in the case of a
partial termination, the City determines that the remaining portion of the award will not accomplish the
purpose for which the award was made, the City may terminate the award in its entirety.
13.Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall
continue in full force and effect.
14.Contract Administration. This Agreement shall be administered by the City Manager ("Contract
Administrator"). All correspondence shall be directed to or through the Contract Administrator or his or
her designee.
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15.Notices. Notices required by this Agreement shall be in writing and delivered via mail (postage
prepaid), commercial courier, or personal delivery or sent by facsimile or other electronic means. Any
notice delivered or sent as aforesaid shall be effective on the date of delivery or sending. All notices and
other written communications under this Agreement shall be addressed to the individuals in the capacities
indicated below, unless otherwise modified by subsequent written notice.
Any written notice to Grantee shall be sent to:
TRIVALLEY BMR, LLC
Attn: Darin Lounds, Executive Director
(Darin@HCEB.org)
Phone: (510-832-1382)
Any written notice to City shall be sent to:
The City of Dublin
Attn: Housing Division
100 Civic Plaza
Dublin, CA 94568
Phone: (925) 833-6610
16.Integration. This Agreement, together with attached Exhibits A-D, contains the entire
understanding between the parties concerning the subject matter contained herein. There are no
representations, agreements, arrangements, or understands, oral or written, between the parties relating
to the subject matter of this Agreement that are not fully expressed herein.
17.Attorneys’ Fees. If any legal proceeding is instituted by either party to enforce the terms of this
Agreement or to determine the rights of the parties thereunder, the prevailing party in the proceeding
shall recover, in addition to all court costs, reasonable attorneys' fees (including, without limitation, post-
judgment attorneys’ fees incurred in collecting a judgment or otherwise enforcing the terms thereof).
18. Applicable Law. This Agreement shall be subject to and governed by the law of the State of
California.
19.Assignment. Binding on Successors. The Grantee may not assign or otherwise transfer this
Agreement or any interest in it without the City’s written consent, which the City may grant or deny in its
sole discretion. An assignment or other transfer made contrary to this section is void. This Agreement
binds and inures to the benefit of the successors and assigns of the parties, however this statement does
not constitute the City’s consent to any assignment of this Agreement or any interest in this Agreement
20. Conflict of Interest. Grantee agrees to abide by the provisions of 24 CFR 570.611 with respect
to conflicts of interest, and covenants that it presently has no financial interest and shall not acquire any
financial interest, direct or indirect, which would conflict in any manner or degree with the performance of
services required under this Agreement. Grantee further covenants that in the performance of this
Agreement no persons having such a financial interest shall be employed or retained by the Grantee
hereunder. These conflict of interest provisions apply to any person who is an employee, agent, Grantee,
officer, or elected official or appointed official of the City of Dublin, or of any designated public agencies
or subrecipients which are receiving funds under the Act.
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21. Amendment.No changes in the Work Program (Exhibit A) as described in this Agreement shall
be made without written approval of the City. Any changes to this Agreement, unless otherwise noted,
may only be made through a written amendment to this Agreement executed by City and Grantee. City
and Grantee may amend this Agreement at any time provided that such amendments make specific
reference to this Agreement, are executed in writing, and signed by duly authorized representative(s) of
each party. Such amendments shall not invalidate any parts of this Agreement that are not changed by
the amendment, nor relieve or release City and Grantee from its obligations under this Agreement that
are not changed by the amendment. Grantee agrees not to unreasonably withhold its approval of any
amendments proposed by City that are necessary in order to conform with federal, state or local
governmental laws, regulations, ordinances, orders, rules, directives, circulars, bulletins, notices,
guidelines, policies and available funding amounts.
22. Waiver of Breach.A party’s failure to insist on strict performance of this Agreement or to
exercise any right or remedy upon the other party’s breach of this Agreement will not constitute a waiver
of the performance, right, or remedy. A party’s waiver of the other party’s breach of any term or provision
in this Agreement is not a continuing waiver or a waiver of any subsequent breach of the same or any
other term or provision. A waiver is binding only if set forth in writing and signed by the waiving party.
23. Corporate Authority. The persons executing this Agreement on behalf of the parties hereby
warrant that (i) they are duly authorized to execute and deliver this Agreement on behalf of said party, (ii)
by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and,
(iii) the entering into this Agreement does not violate any provision of any other agreement to which said
party is bound.
SIGNATURES ON THE FOLLOWING PAGE
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IN WITNESS HEREOF, the parties have caused their authorized representatives to execute this
Agreement on the date set forth above.
CITY OF DUBLIN GRANTEE – TRIVALLEY BMR, LLC
_______________________________________________________________
Linda Smith, City Manager Darin Lounds, Executive Director
Attest:
____________________________
Marsha Moore, City Clerk
Approved as to Form:
____________________________
John D. Bakker, City Attorney
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EXHIBIT A
WORK PROGRAM
for
TRIVALLEY BMR, LLC
CONSTRUCTION OF PERMANENT FACILITIES FOR OPEN HEART KITCHEN OF LIVERMORE
CDBG funds are being used to purchase equipment and build a commercial kitchen to serve
residents of Dublin from this facility in Livermore.
Grantee shall:
1) Demolish an existing structure on the site (460 N. Livermore Avenue, Livermore CA).
2) Construct a new structure to accommodate the proposed kitchen along with the housing and other
facilities in the building.
3) Execute a long term lease in accordance with existing Memorandum of Understanding with Open
Heart Kitchen.
4) Purchase and install kitchen equipment at the project site.
5) Complete construction and make kitchen operational to meet the needs of families in Dublin, CA.
Timeline
April 21, 2021 TriValley BMR, LLC and/or Open Heart Kitchen to pay for and pre-order
kitchen equipment.
July 2021 Complete bid solicitation, select contractor and develop contract. Finalize
and approve all plans.
September 2021 Construction begins.
November 2021 Open Heart Kitchen and TriValley BMR execute the long-term lease.
December 2022 Construction is completed. Finalize permits for opening.
1. This timeline may be amended with prior approval of the Director or designee.
2. Invoices can only cover costs incurred between April 20, 2021, and March 30, 2022.
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EXHIBIT B
CONDITIONS FOR PAYMENT
for
TRIVALLEY BMR, LLC
CONSTRUCTION OF PERMANENT FACILITIES FOR OPEN HEART KITCHEN OF LIVERMORE
1.BUDGET
Before disbursement of Grant Funds may be made, Grantee shall establish a budget, to be approved
in writing by the Community Development Director or designee, specifying by line item the
expenditures to be made with Grant Funds. Once a budget is approved by the City, changes may be
made only with a written request to be approved by the Director or designee in advance of a request
for disbursement of funds.
2.METHOD OF PAYMENT
All requests for a funding draw or reimbursement will be in a format approved by the City and the
County.
a.All requests for a funding draw or reimbursement shall be on Grantee’s letterhead, contain an
original authorized signature, unique invoice number (current year’s contract number); total
amount requested and amounts towards each line item on the approved budget. This document
shall be called an “Invoice”, and shall track disbursements made by budget line item, current
requests, and amount remaining in the budget line item, as demonstrated in the table below.
Line Item Total
Budget
Previous
Requests
Current
Request
Balance
Remaining
b.Invoices must state the Service Period which is the period for which payment is requested. The
dates on the backup invoice documentation must be within this period.
c.All invoices shall be paid on a funding draw or reimbursement basis and be made no more than
monthly with supporting documentation of actual costs incurred during the period of time covered
by the invoice. If under a specific line item, Grantee has more than one form of back up or
supporting documentation, Grantee must summarize the documentation and include a subtotal
of items which add up to the line-item total. Invoices must be properly organized and are subject
to return to Grantee if they are not.
d.Requests for funding draw or reimbursement must be received within 60 days of the end of each
month or period covered.
e.All funds disbursed to Grantee must be expended within fifteen (15) days of approval of the
receipt of funds. The final disbursement shall be requested by GRANTEE not less than sixty
(60) days before project completion.
f.Any adjustments made by the fiscal auditors at the year-end audit, under the American Institute of
Certified Public Accountants (AICPA) guidelines and other relevant federal regulations should be
brought to the attention of City staff for reconciliation.
g.Grantee is responsible for reporting any matching funds used on this project which do not
originate from HCD sources. These funds can include funding to cover staff that are working on
this project but paid from another source of funds.
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3.REQUESTS FOR ADJUSTMENTS TO BUDGET LINE ITEMS
Once the line-item budget has been approved, there can be no more than four (4) requests for
adjustments to the budget during the contract period, including any final adjustments done at the end
of the project, unless otherwise approved by the City of Dublin Community Development Director,
which approval shall not be unreasonably withheld. Any change in the budget that results in lower
costs shall be communicated immediately. If Director or designee determines that the total amount
of funds under this contract exceeds the amount necessary to complete the project, Director or
designee may adjust the contract accordingly. The budget amendment should be on letterhead, must
contain an original signature, and must track the requested change by line item, showing original
budget amount, balance expended to date, remaining funding by each line item, the amount to be
moved between line items, and the final new budget amount. Budget amendments take between two
and three weeks to process and must be processed prior to receipt of an invoice requesting funding
under the new budget. The Director or designee reserves the right to deny any budget modification
request.
4.COMPLIANCE WITH FEDERAL REGULATIONS
Grantee's administrative procedures must be in compliance with the following regulations:
a.2 CFR Part 200.
b.24 CFR Part 570.502 Applicability of uniform administrative requirements.
5.PUBLIC RECOGNITION OF FUNDING
Grantee will publicly recognize the funding provided by the City of Dublin and the Alameda County
Housing and Community Development Department (HCD) and in all newspaper articles and any
other public relations opportunities related to this project. HCD staff and members of the Board of
Supervisors will be invited to participate in the groundbreaking and grand opening ceremonies, if
held.
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EXHIBIT C
SECTION 3 OF THE HOUSING AND URBAN DEVELOPMENT ACT OF 1968
1. In all sub-contracts for work paid for with funds from this Contract over $10,000, the following clause
(referred to as the Section 3 Clause), will be included:
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, particularly persons who are recipients
of HUD assistance for housing.
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.
3. 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 actions, 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.
4. The Contractor will certify that any vacant employment positions, including training positions, that are
filled (1) after the Contractor is selected but not before the contract is executed, and (2) with persons
other than those to whom the regulations of 24 CFR Part 135 require employment opportunities be
directed, were not filled to circumvent the Contractor's obligations under 24 CFR Part 135.
5. The Contractor agrees to publish and advertise all new employment opportunities and sub-
contracting opportunities with the following types of organizations:
a) 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, 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.
b) Workforce Investment Board “One Stop Career Centers.”
c) Other low-income training organizations.
6.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.
7.With respect to work performed in connection with Section 3 covered Indian housing assistance,
section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 405e) also
applies to the work to be performed under this contract. Section 7(b) requires that to the greatest
extent feasible (i) preference and opportunities for training and employment shall be given to Indians,
and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations
and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of
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Section 3 and Section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in
derogation of compliance with Section 7(b).
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EXHIBIT D
DEBARMENT AND SUSPENSION CERTIFICATION
The Contractor, under penalty of perjury, certifies that, except as noted below, Contractor, its principals,
and any named subcontractor:
Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility
by any federal agency;
Has not been suspended, debarred, voluntarily excluded or determined ineligible by any federal
agency within the past three years;
Does not have a proposed debarment pending; and
Has not been indicted, convicted, or had a civil judgment rendered against it by a court of
competent jurisdiction in any matter involving fraud or official misconduct within the past three
years.
If there are any exceptions to this certification, insert the exceptions in the following space.
Exceptions will not necessary result in denial of award, but will be considered in determining Contractor
responsibility. For any exception noted above, indicate below to whom it applies, initiating agency, and
dates of action.
Notes: Providing false information may result in criminal prosecution or administrative sanctions. The
above certification is part of the Standard Services Agreement. Signing this Standard Services Agreement
on the signature portion thereof shall also constitute signature of this Certification.
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