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HomeMy WebLinkAboutFFDA Properties and Granville Homes Water Infrastructure Reimbursement Agmt relating to CUP C110144 /5-e t4 3/eb/ /5 ñ ^oz. a\Ø:L1 ocfo LOOøç= (-) ı WATER IN FRASTRUCTURE REIMBURSEMENT AGREEMENT THIS AGREEMENT ("Agreement") is made and entered into this day of ,2015 between the City of Fresno, a California munic¡pal corporation ("City) and FFDA Properties, LLC and Granville Homes, lnc. (together "Developer"). RECITALS WHEREAS, City approved Developer's application for Conditional Use Permit Application No. C-11-014 and Vesting Tentative Tract Map No. 5994 that will permit the development of a 28-unit planned development on 1.29 acres located on the east side of "L" street between san Joaquin street and Amador street ("project"); and, WHEREAS, City conditioned approval of Conditional Use Permit Application No. c-11-014 and Vesting Tentative Tract Map No. s994, section E(4Xb)-1 (as incorporated) as follows: "Construct an 8-inch water main (including installation of City fire hydrants) from the existing 8-inch main located in San Joaquin Street at the L-M Alley southwest in San Joaquin Street to 'L' Street, northwest in 'L' Street to North Park Avenue, then north connecting to the existing 8-inch main in East Divisadero Street. The developer shall pay one hundred percent of the cost to construct the 8-inch main where no water main exists along the frontage of the tract. The City shall reimburse the developer for the construction of the 8-inch main that will replace the existing 6-inch water main in 'L' Street and North Park Avenue. The developer shall construct all improvements under this condition and shall be reimbursed by a Developer Reimbursement Agreement, which will be negotiated subsequent to Planning Commission approval. The Developer Reimbursement Agreement shall be subject to City Council approval in its sole discretion. The developer shall be responsible to provide substantiation of all costs associated with reimbursement under the agreement." WHEREAS, the DPU-WD 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 uL" Street and North Park Avenue ("the lmprovement"), because it has been determined that the existing 6-inch main is adequate to supply water to the Project, even though 6-inch mains no longer meet DPU-Water Division 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. 5994 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 el 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, 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 requ¡red by law or to comply with the other applicable provisions of Labor Code sections 1720 et 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-WD all documentation evidencing the eligible costs o 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 othen¡rise eligible costs of construction. 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 967,772.15. An itemization of the individual Eligible Construction Costs is attached hereto as Exhibit "A." Upon Developer's compliance with Section 1.4to 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 unure 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 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. ilt ilt ilt ilt ilt ilt The parties have executed this Agreement on the day and year first above written. Department of Public Utilities Thomas Ç. Esqueda, Director CITY OF FRESNO, A Municipal Corporation DEVELOPER FFDA Properties, LLC Darius Assemi, Vice President ATTEST: Yvonne Spence, CMC ,3/þ/tl City Clerk DEVELOPER GRANVILLE HOMES, INC. By: Print Name: Tifle:?c¿siL-,.t APPROVED AS TO F9RM: DOUGLAS City By: luri, Sr. Depu Date: Exhibit A - Eligible Construction Costs Eligible Professional Services - These costs shall not exceed the percentages of the Ellglble Costs of Actual Construction ("ECAC"l set forth below. Description A. Planning and Scoping B. Design Development C, Design Survey D. DesignAdministration E. Construction Survey F. Construction Management G. Proiect Closure Total Maximum % Recoverable % of ECAC O.SYo 5.OYo 0s% t.5Yo 2.OYo 2.0% 0.t% tl.6% ll. Ellglble Costs of Actual Constructlon r Trenching e Pipe installation and testing ¡ Backfill and compaction o Jack and bore pits o Traffic control o Dust control r Construction of all appurtenances as determined necessary by City ¡ Road Surfacing as determined necessary by City . Frontage improvements and landscaping as approved by City on final plans ¡ Clean up of construction site ¡ Obtaining, and paying for, street work permit from City o Coordinat¡on of work with any other City contractor . Construction pursuant to City of Fresno, Department of Public Works, Stand Specifications and Drawings, dated August 2010.