HomeMy WebLinkAboutFFDA and Granville Homes Water Infrastructure Agmt relating to CUP C11163/5 -432
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WATER IN FRASTRUCTURE REIMBURSEMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this day of
, 2015 between the City of Fresno, a California municipal
company,corporation ("City"), and FFDA Properties, LLC., a California limited liability
and Granville Homes, Inc., a California Corporation (collectively "Developer").
RECITALS
WHEREAS, City approved Developer's application for Conditional Use Permit
Application No. C-1 1-163, C-12-002 and Vesting Tentative Tract Map No. 6015 that will
permit the development of 3-story five-plex buildings, with a total of 52 residential units
on 1.25 acres located on the northeast side of Broadway between San Joaquin Street
and Calaveras Street ("Project"); and,
WHEREAS, City conditioned approval of Conditional Use Permit Application No.
C-11-163, C-12-002 and Vesting Tentative Tract Map No.6015, Section E(a)(b)-1 (as
incorporated) as follows:
"Construct an 8-inch water main (including installation of City fire hydrants)
to replace the existing 6-inch water in Calaveras Street from the existing
12-inch main located in Calaveras Street at the Broadway and Fulton
Street Alleyway west to the existing 6-inch water main located in the H
Street and Broadway Alleyway. The developer shall pay one hundred
percent of the cost to construct the 8-inch main. The City may reimburse
the developer for the cost to construct the water main adjacent to the
existing 6-inch main up to fifty percent (50%) or greater at the City
Council's sole discretion. Reimbursement will be subject to the approval
of a Developer Reimbursement Agreement by the City Council in its sole
discretion within one year following approval of Tentative Tract T-6015. ln
the event the City Council does not approve the Developer
Reimbursement Agreement, the developer shall be responsible for the full
cost to construct the water main."
WHEREAS, the City's Department of Public Utilities ("DPU') Water Division staff
supports the reimbursement of the Developer, out of enterprise funds, the cost of
constructing that portion of the 8-inch main that is replacing the existing 6-inch main in
Calaveras ("the lmprovement"), because it has been determined that the existing 6-inch
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main is adequate to supply water to the Project, even though 6-inch mains no longer
meet DPU Water Division's minimum specifications and standards.
AGREEMENT
ln consideration of the foregoing recitals and the obligations undertaken by the
parties as hereinafter set forth, the parties agree as follows:
1. Obligations of the Developer
1.1 The Scope of this Agreement is the City's obligation to reimburse the
Developer for the cost of constructing the lmprovement, subject to the terms and
limitations set for in this Agreement. Nothing in this Agreement is intended to alter or
waive any obligations or duties of the Developer to comply with existing City ordinances,
policies, procedures, plans and specifications related to the construction of the
lmprovement, including any requirements to obtain approval of construction plans or
obtain necessary building, street-work, encroachment or other permits or to comply with
any requirements or conditions placed on the issuance of those permits (e.9. insurance,
improvement security, etc.). Furthermore, if the Developer decides to seek the City
Council's approval of a Final Map for all or a part of the property covered by Vesting
Tentative Tract Map No. 6015 prior to constructing this lmprovement, Developer shall
obtain all necessary improvement security required by the Subdivision Map Act and the
Fresno Municipal Code to ensure completion of the construction of this lmprovement.
1.2 As the City is reimbursing the Developer the Eligible Construction Costs to
construct the lmprovement, the lmprovement is a "Public Work" as defined by California
Labor Code, section 1720(a). Developer agrees: (a) to pay, and shall cause its
contractors and subcontractors to pay, prevailing wages for the construction of the
lmprovement, and (b) comply with the other applicable provisions of Labor Code,
section 1720 et seq., and implementing regulations of the Department of lndustrial
Relations, necessary to determine that prevailing wages have been paid as required by
law. During the construction of the lmprovement, Developer shall, or shall cause its
contractor, to post at the Project area the applicable prevailing rates of per diem wages.
Developer shall indemnify, hold harmless and defend (with legal counsel reasonably
acceptable to the City) the City against any claim for damages, compensation, fines,
2
penalties or other amounts arising out of the failure or alleged failure of any person or
entity (including Developer, its contractors and subcontractors) to pay prevailing wages
as required by law or to comply with the other applicable provisions of Labor Code
sections 1720 el seq., and/or the implementing regulations of the Department of
lndustrial Relations in connection with construction of the lmprovement.
1.3 Developer shall maintain written documentation evidencing the Eligible
Construction Costs the Developer incurred in constructing of the lmprovement for
submittal to the City at the time Developer seeks reimbursement for the eligible costs of
constructing the lmprovement. Developer's failure to provide the necessary
documentation evidencing certain eligible construction costs.
"Eligible Costs" or "Eligible Construction Costs" means those activities described in
Exhibit A. Acceptable documentation of Eligible Construction Costs includes invoices
for construction materials used to construct the lmprovement and invoices from
contractors clearly identifying the labor and materials expended to construct the
lmprovement.
1.4 Within 60 days of the City's acceptance of the lmprovement, Developer
shall submit to DPU Water Division all documentation evidencing the eligible costs of
constructing the lmprovement. lf the Developer fails to submit the documentation
evidencing the eligible construction costs by this deadline, City shall have the option of
refusing to reimburse Developer for any of the otherwise eligible costs of construction.
1.5 To the furthest extent allowed by law including California Civil Code
section 2782, Developer shall indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents and volunteers from any and all loss, liability, fines,
penalties, fodeitures, costs and damages (whether in contract, tort or strict liability,
including but not limited to personal injury, death at any time and property damage)
incurred by City, Developer or any other person, and from any and all claims, demands
and actions in law or equity (including attorney's fees and litigation expenses), arising or
alleged to have arisen directly or indirectly out of performance of this Contract.
Developer's obligations under the preceding sentence shall apply regardless of whether
City or any of its officers, officials, employees, agents or volunteers are passively
negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
damages caused by the active or sole negligence, or the willful misconduct, of City or
any of its officers, officials, employees, agents or volunteers.
lf Developer should subcontract all or any portion of the work to be performed
under this Contract, Developer shall require each subcontractor to indemnify, hold
harmless and defend City and each of its officers, officials, employees, agents and
volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Contract.
2. City's Obligations
2.1 The Engineer's Estimate of the Eligible Construction Costs (including an
allocation for Eligible Professional Services) of constructing the lmprovement is
$54,949.61. An itemization of the individual Eligible Construction Costs is attached
hereto as Exhibit "A." Upon Developer's compliance with Section 1.4 to the reasonable
satisfaction of the Director of Public Utilities ("Director"), and upon confirmation of the
Eligible Construction Costs, the City shall reimburse the Developer for Eligible
Construction Costs up the amount of the Engineer's Estimate.
2.2 lf the amount of the Eligible Construction Costs exceeds the Engineers
Estimate by an amount less than or equal to 10 percent, the Director may authorize
payment of all or a portion of the excess amount upon Developer demonstrating to the
reasonable satisfaction of the Director that the amount incurred in excess of the
engineers Estimate resulted from circumstances not caused by the Developer, its
contractors or subcontractors and beyond their control.
2.3 Reimbursement of any Eligible Construction Costs in excess of 10 percent
of the Engineers Estimate shall require the approval of the City council.
2.4 City shall use its best efforts to review the documentation of eligible
construction costs and, if the documentation is determined to be sufficient, issue the
reimbursement check within 30 days of receiving from the Developer all of the
documentation of eligible construction costs required by the City.
3. Miscellaneous Terms
3.1 Binding upon Successors. This Agreement shall be binding upon the
inure to the benefit of the parties hereto and their predecessors; successors; assigns;
past, present, or future affiliated and related entities; officers; members; agents;
employees; and representatives.
3.2 lntegration. This Agreement constitutes the complete and final
agreement of the parties with respect to the subject matters referred to in the
Agreement.
3.3 Modification. Any modifications of the Agreement must be in writing and
signed by all parties. No oral modifications shall be effective to vary or alter the terms of
this Agreement.
3.4 Severability. lf any provision or any part of any provision of the
Agreement shall, for any reason, be held invalid, unenforceable, or contrary to public
policy or law, the remainder of the Agreement shall not be affected thereby, and shall
continue to be value and enforceable.
3.5 Counterparts. This Agreement may be executed in counterparts,
including true and accurate copies of the original, all of which, when taken together,
shall be deemed on original agreement. Any executed copy shall not be binding upon
any party until all parties have duly executed a copy of this Agreement.
3.6 Attorneys Fees. lf either party is required to commence any proceeding
or legal action to enforce or interpret any term, covenant or condition of this Agreement,
the prevailing party in such proceeding or action shall be entitled to recover from the
party its reasonable attorney's fees and legal expenses.
3.7. Waiver of Terms. 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.
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The parties have executed this Agreement at Fresno, California, on the day and
year first above written.
CITY OF FRESNO,
A Municipal Corporation
ATTEST:
Yvonne Spence, CMC
City Clerk
By:
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City A
By:
Date:
DEVELOPER
FFDA Properties, LLC., a California limited
liability company
Secretary or Assistant Secretary)
DEVELOPER
GRANVILLE HOMES, lNC. , a California
Corporation
a7
Title: R.",Àe.rrt
Title:
Secretary or Assistant Secretary)
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Title: Vice President
By:
Print
(if corporation or LLC, Board Chair, Pres.
(lf corporation or LLC, Board Chair, Pres.
Exhibit A - Eligible Construction Costs
l. Eligible Professional Services - These eosts shall not exceed the percentages of the Eligible Costs
of Actual Construction ("ECAC') set forth below.
Description
A. Planning and Scoping
B. Design Development
C, Design Survey
D. DesignAdmínistration
E. Construction Survey
F. Construction Management
G, Proiect Closure
Total Maximum % Recoverable
% of ECAC
o5%
s.o%
o.s%
t.5%
2.O%
2.0%
o.r%
tt.6%
ll. Eligible Costs of Actual Construction
¡ Trenching
e Pipe installatÎon and testing
o Backfill and compaction
r Jack and bore pits
o Traffic control
o Dust control
o Construction of all appurtenances as determined necessary by City
o Road Surfacing as determined necessary by City
. Frontage improvements and landscaping as approved by City on final plans
r Clean up of construction site
¡ Obtaining, and paying for, street work permit from City
r Coordination of work with any other City contractor
¡ Construction pursuant to City of Fresno, Department of Publíc Works, Stand Specifications and
Drawings, dated August 2010.