HomeMy WebLinkAboutFFDA Properties and Granville Homes Water Infrastructure Reimbursement Agmt relating to CUP C110144 /5-e t4
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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 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.
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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.