HomeMy WebLinkAboutDowntown Association of fresno DBA Downtown Fresno Partnership - Agmt. to Fund The Fulton Mall Reconstruction ProjectıC--ú( J '-
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AGREEMENT TO FUND
The Fulton Mall Reconstruction project
THIS AGREEMENT is made and entered into the 16th day of March, 2O1S byand between the Downtown Fresno Partnership, a [California Partnership] ("DFp") anáthe City of Fresno, a California municipal corporation ("C|TY"). DFp and ClTy are
sometimes hereinafter referred to individually as a Party and collectively as parties.
RECITALS
City has received a grant commitment from the United States Department ofTransportation ("DOT") to administer and implement the Transportation lnvestment
Generating Economic Recovery ("TlGER') grant program.
The TIGER grant will be used to fund construction work in the Fulton Corridor in
Downtown Fresno, California (the "Project").
DFP represents the property owners of Downtown Fresno and has committed toprovide Two Hundred and Fifty Thousand Dollars and Zero Cents ($250,000.00) of
matching funds to City in an effort to revitalize the Downtown Fresno area throlgh
support of this Project.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions and premises hereinafter combined to be kept and performed by the
respective Parties, it is mutually agreed as follows:
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necessary to1. Scope of Services. CITY shall perform those services
complete the Project.
2' Effective Date. lt is the intent of the Parties that this Agreement beeffective as of the date first set forth above as to all terms and conditions of the
Agreement.
3. compe¡sation and Method of pavment. DFp shall pay clry theaggregate sum of Two Hundred and Fifty Thousand Dollars and Zero Cents($250,000.00) for satisfactory performance of the services rendered, or construction
costs incurred, for the Project. Compensation is based on continued progression of theproject by CITY. CITY shall use the funds provided by DFP solely for t'he Þroject.
Payments shall be made by the DFP to CITY per the payment schedule detailed inAttachment "A", attached hereto and incorporated herein by reference. Suchpayments by DFP shall be made in the normal course of business, generally within thirty
(30) days of the dates specified in Attachment "A".
4' Loss.of Third Partv Fundino: ln the event that TIGER grant funding toCITY is suspended, reduced or withdrawn, then DFP may suspend this Agreement
immediately upon its receipt of notice thereof, or terminate this Agreement as provided in
Section 6 below. CITY shall notify DFP in writing within seven (7) days of any
suspension, reduction or withdrawal of CITY'S TIGER grant.
5. Events of Default. When there is an occurrence of any one or more of the
following provisions, it will represent an "Event of Default" for purposes of this
Agreement:
(a) An illegal or improper use of funds;(b) A failure to comply with any material term, covenant or condition
of this Agreement;(c) Report(s) are submitted to DFP which are incorrect or incomplete
in any material respect;(d) The services required hereunder are being improperly performed
by City.
6. Termination and Remedies.
Upon the occurrence of an Event of Default, DFP shall give written notice to
CITY of the Event of Default by specifying: (1) the nature of the event or deficiency
giving rise to the Event of Default; (2) the action required to cure the deficiency, if any
action to cure is possible; and (3) if the Event of Default is curable, a date, which shall
not be less than thirty (30) calendar days from the date of the notice, by which such
deficiency must be cured, provided, however that if such failure cannot be remedied in
such time, CITY shall have an additional thirty (30) days to remedy such failure so long
as CITY is diligently and in good faith pursuing such remedy.
(a) This Agreement shall terminate without any liability of DFP to
CITY upon the earlier of: (i) the happening of an Event of Default by CITY and a failure
to cure said Event of Default within the time specified in the notice of Event of Default;
(ii) seven (7) calendar days prior written notice without cause by DFP to CITY; or (iii)
expiration of this Agreement.
(b) Subject to the terms of this Agreement, CITY shall be paid
compensation for services satisfactorily performed prior to the effective date of
termination. CITY shall not be paid for any work or services performed or costs incurred
which reasonably could have been avoided.
7. Records, Reports and lnspection.
(a) CITY shall establish and maintain records in accordance with
generally accepted accounting principles with respect to all matters covered by this
Agreement.
(b) CITY shall submit to DFP, quarterly progress reports on the first
day of each quarter starting on the date of issuance of the Notice to Proceed to the
Fulton Mall Reconstruction Project Contractor. The quarterly reports shall provide a
general project status update and highlight key achievements of the previous quarter
and upcoming tasks in the following quarter. All quarterly reports are to be submitted to
DFP at the address given for notices on the signature page hereof or at such address
the DFP may from time to time designate by written notice.
(c) During the life of this Agreement and for a period of five (5) years
after receipt of the final payment under this Agreement or the earlier termination of this
Agreement, whichever occurs later, CITY shall, at any time during normal business
hours, make available to DFP such statements, records, reports, data and information as
they may request pertaining to matters covered by this Agreement and permit them or
any one of them to audit and inspect all records, invoices, materials, payrolls, records of
personnel, conditions of employment, and other data relating to all matters covered by
this Agreement. CITY shall also permit and cooperate with on-site monitoring and
personal interviews of CITY's staff and employees.
8. lndependent Contractor.
(a) ln the furnishing of the Services provided for herein, CITY is acting
as an independent contractor. Neither CITY, nor any of its officers, agents or employees
shall be deemed an officer, agent, employee, joint venturer, partner or associate of DFP
for any purpose. DFP shall have no right to control or supervise or direct the manner or
method by which CITY shall perform its work and functions. However, DFP shall retain
the right to administer this Agreement so as to verify that CITY is performing its
obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture
between CITY and DFP. CITY shall have no authority to bind DFP absent DFP'S
express written consent. Except to the extent othenruise provided in this Agreement,
CITY shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, CITY and its
officers, agents and employees shall have absolutely no right to employment rights and
benefits available to DFP employees. CITY shall be solely liable and responsible for
providing to, or on behalf of, its employees all legally required employee benefits. ln
addition, CITY shall be solely responsible and save DFP harmless from all matters
relating to payment of CITY'S employees, including, without limitation, compliance with
Social Security withholding, and all other regulations governing such matters. lt is
acknowledged that during the term of this Agreement, CITY may be providing services to
others unrelated to DFP or to this Agreement.
9. Notices. Any notice required or intended to be given to either Party under
the terms of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation of
receipt, or sent by United States registered or certified mail, with postage prepaid, return
receipt requested, addressed to the Party to which notice is to be given at the Party's
address set forth on the signature page of this Agreement or at such other address as
the Parties may from time to time designate by written notice. Notices served by United
States mail in the manner above described shall be deemed sufficiently served or given
at the time of the mailing thereof.
10. Bindino. Once this Agreement is signed by all Parties, it shall be binding
upon, and shall inure to the benefit of, all Parties, and each Parties' respective heirs,
successors, assigns, transferees, agents, servants, employees and representatives.
11. Assionment.(a) This Agreement is personal to CITY and there shall be no
assignment by CITY of its rights or obligations under this Agreement without the prior
written approval of DFP. Any attempted assignment by CITY, its successors or
assigns, shall be null and void unless approved in writing by DFP.
(b) CITY hereby agrees not to assign the payment of any monies due
CITY from DFP under the terms of this Agreement to any other individual(s),
corporation(s) or entity(ies). DFP retains the right to pay any and all monies due CITY
directly to CITY.
12. Waiver. The waiver by either Party of a breach by the other of any
provision of this Agreement shall not constitute a continuing waiver or a waiver of any
subsequent breach of either the same or a different provision of this Agreement. No
provisions of this Agreement may be waived unless in writing and signed by all Parties to
this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver
of any other provision herein.
13. Governino Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of California,
excluding, however, any conflict of laws rule which would apply the law of another
jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or
interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
14. Headinqs. The Section headings in this Agreement are for convenience
and reference only and shall not be construed or held in any way to explain, modify or
add to the interpretation or meaning of the provisions of this Agreement.
15. Severabilitv. The provisions of this Agreement are severable. The
invalidity or unenforceability of any one provision in this Agreement shall not affect the
other provisions.
16. lnterpretation. The Parties acknowledge that this Agreement in its final
form is the result of the combined efforts of the Parties and that, should any provision of
this Agreement be found to be ambiguous in any way, such ambiguity shall not be
resolved by construing this Agreement in favor of or against any Party, but rather by
construing the terms in accordance with their generally accepted meaning.
17. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
18. Extent of Aqreement. Each Party acknowledges that they have read and
fully understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the Parties with respect to the subject matter hereof
and supersedes all prior negotiations, representations or agreements, either written or
oral.
lN WITNESS WHEREOF, the Parties have executed this Agreement at Fresno,
California, the day and year first above written.
City of Fresno,
a municipal corporation
By:
By:- E
R sha
Deputy City Attorney
Date: 'l' ¡ 'tf
Name:
Title:
(Attach Notary Certificate of Acknowledgement)
Date:
DFP:
Downtown Fresno Partnership
Attention: Aaron Blair
845 Fulton Mall
Fresno, CA 93721
Phone: (559) 490-9966
FAX: (559) 490-9968
By:
Bruce Rudd
City Manager
Date:
ATTEST:
WONNE SPENCE, CMC
City Clerk
By:
Date:
APPROVED AS TO FORM:
DOUG SLOAN
City Attorney
Addresses:
CITY:
City of Fresno
Attention: Randall Morrison
Special Projects Engineer
2600 Fresno Street Room 3076
Fresno, CA 93721
Phone: (559) 621-8703
FAX: (559) 457-1277
Downtown Fresno Partnership,
President & CEO
Notqry Certificate of Acknowledgement)
Attachment A
PAYMENT SCHEDULE
For Fulton Mall Reconstruction Project
PAYMENT SCHEDULE
Pavment Due Date Amount ($)
Date of Notice to Proceed $75,000
March 31,2016 $125,000
March 31,2017 $50,000
TOTAL: $250,000
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