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Home My WebLink AboutFFDA Properties Measure C Infrastructure Reimbursement Broadway Fulton Alley Pavement from Calaveraıco?z.o01 --[loct .9IE LOQ-ø-=Eo(JO ı Properties LLC ("Developer',). RECITALS WHEREAS, on April 11,2073, the Fresno City Council ("Council") adopted a resolutionauthorizing staff to apply for Measure '(C' TransitOriented DÈvelopmei (TOb) funding forthe the Broadway-Fulton Alley Pavement Reconstruction from Calaieras to San Joaquin Street("Project"); and WHEREAS, the application was approved for funding through the TOD programprocedures established by the Fresno Council of Governments ("COG',) and Fresno'C"I"rt' Transportation Authority ("FCTA',); and TWHEREAS, the City and FCTA have entered into a cooperative agreement for theProject, as executed onFebruary 12,2014;and WHEREAS, the City conditioned approval of Conditional Use permit Application No.C-Il-163, C-I2-a02, and Tract No. 6015 on required developer construcìion of alleyimprovements in the Broadway-Fulton Alley from Calaveras to San Jãaquin Streets as per public Works Standards; and V/HEREAS, City applied the same condition of approval on Vesting Tentative Tract MapNo. 6015 condition of Approval "General conditions', 21, qasincorporated); and WHEREAS, the costs of constructing the improvements required by Condition ofApproval for conditional use Permit No. c-lr-163, c-12-ooz, and cónditior, ãf Approval forVesting Tentative Tract Map No. 6015, Condition 27 whichrequired the develop"r ø ronrt*rtalley improvements in the Broadway-Fulton Alley from Calaveias to San Joaquin Streets as perPublic Works Standards. Alley ("Improvements") will be reimbursed in accàrdance with thisAgreement; and WHEREAS, prior to execution of this Agreement, the Developer has installed theImprovements; and WHEREAS, City and Developer now wish to set forth the obligations of the Developer associated with the Improvements and the conditions for reimbursement of the Develop". fo, such work. MEASURE TC'' TRANSIT-ORIENTED DEVELOPMENT PROGRAM INFRASTRUCTURE PROJECT REIMBURSEMENT AGREEMENT (BROADWAY.FULTON ALLEY PAVEMENT RECONSTRUCTION FROM CALAVERAS TO SAN JOAQUIN STREET) Page 1 of5 AGREEMENT In 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 Developer shall construct the Improvements, which will be installed and accepted by the Cityupon completion. 1.2 This Agreement is intended to define the City's obligation to reimburse the Developer for the cost of constructing the Improvements, subject to the terms and limitations set forth in this Agreement. Nothing in this Agreement shall alter or waive any obligations or dutiesof the Developer to comply with existing City ordinances, policies, procedures, plans and specifications related to the construction of the Improvements, including any requirements to obtain approval of construction plans or obtain necessary building, street-worþ encroachment or other permits or to comply with any requirements or conditions placed on the issuance of those permits (e.g. insurance, improvement security, etc.). Nothing in this Agreement shall alter or waive any Condition of Approval or requirement for Conditional Use Permit No. C-l1-163, C- 12-002 and Vesting Tentative Tract Map No. 6015. I '3 As City is reimbursing Developer for the Eligible Costs of Actual Construction (ECAC), the Improvement is a "Public Work" as defined by California Labor Code, SectionI720(a). Developer agrees and warrants it has (a) paid, and caused its contractors and subcontractors to pay, prevailing wages for the construction of the Improvement and (b) complied with the other applicable provisions of Labor Code, section 1720 et seq., aná implementing regulations of the Department of Industrial Relations, necessary to determine that prevailing wages have been paid as required by law. During the construction of the Improvement, Developer has, or has caused its contractor, to post at the project area the applicable prevailing rates of per diem wages. Developer shall indemniff, 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 failuré 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 faUor Code sections 1720 et seq., and/or the implementing regulations of the Department of tndustrial Relations in connection with construction of the Improvement.1.4 Developer shall maintain written documentation evidencing the ECAC Costs the Developer incurred in constructing the Improvement for submittal to the City aI the time Developer seeks reimbursement for the eligible costs of constructing the Improvement. Developer's failure to provide the necessary documentation evidencing certaìn etgible construction costs will result in the City not reimbursing the Developer for those otherwise eligible construction costs. Acceptable documentation of ECAC includes invoices for construction materials used to conskuct the Improvement and invoices from contractors and subcontractors clearly identifuing the labor and materials expended to construct the Improvement. 1.5 Developer shall submit to City's Department of Public Works - Construction Management Division all documentation evidencing the eligible costs of constructing the Improvements. If the Developer fails to submit the documentation evid.encing the eligible construction costs, City shall have the option of refusing to reimburse Develop"r fo. any oi the otherwise eligible costs of construction. Page 2 of5 1.6 Developer shall not assert or be entitled to a fee credit or offset toward a UGM or development impact fee from City for any portion of the Improvements for which reimbursement was paid under this Agreement. 1.7 To the furthest extent allowed by law, including Civil Code Section 2782, Developer shall indemnify, hold harmless and defend (with legal counsel reasonably acceptable to City) City and each of its officers, officials, employees, agents, and volunteers from any and all loss, liabilit¡ fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liabilit¡ including but not limited to personal injury, death at any time and property damage) incurred by Cit¡ Developer or any other person, and from any and all claims, demands and actions in law or equity (including attorneys' fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement or the performancJof any or all work to be done by Developer or its contractors, subcontractors, agents, successors and assigns pursuant to this Agreement. Developer's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees or agents are passively negligent, but shall not apply to any loss, liabilit¡ fines, penaltiès, forfeitures, costs or damages caused solely by the active negligence, or the willful misconduct of City or any of its offrcers, officials, employees, agents, or volunteers. 2. City's Oblieations 2.1 The Engineer's Estimate of the ECAC (including an allocation for Eligible Professional Services) of constructing the Improvement is $453;250.00. An itemization oi the individual Eligible Construction Costs is attached hereto as Exhibit "4." Upon Developer's compliance with Section 1.5 to the reasonable satisfaction of the Director of the Department of Public Works ("Director"), and upon confirmation of the ECAC, the City shall reimburse the Developer for ECAC up to, but not more than, the amount of the Engineer's Estimate.2.2 Subject to staffing limitations, City shall use its best efforts to review the documentation of eligible construction costs and inform Developer of any insufficiencies in the documentationwithin 15 days of receipt or execution of this Agreement, whichever is later. If the documentation is determined to be sufficient, issue the reimbursement within 30 days of receiving from Developer all of the documentation of eligible construction costs required byCity' If Developer has submitted documentation prior to the execution of this Agreement, nã obligation to issue a reimbursement shall arise prior to 30 days from the date of thJlast party to execute this Agreement. 3. Additional Terms 3.1 Binding upon Successors. This Agreement shall be binding upon and 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 Integration. This Agreement constitutes the complete and final agreement of the parties with respect to the subject matters referred to in this Agreement. This Agreement supersedes all prior or contemporaneous negotiations, promises, covenants, agreements, and representations of every nature whatsoever with respect to the subject matters referred to in this Agreement, all of which have become merged and finally integrated into this Agreement.3.3 Incorporation of Attachments. All recitals and attachments to this Agreement, including all Exhibit(s) referenced herein, and all subparts thereto, are incorporated herein by this reference. Page 3 of5 3.4 Modification. Anymodification of this Agreement must be in writing and signedby all parties. No oral modifications shall be effective to vary or alter the terms ofthit Agreement. 3.5 No Assignment. No assignment of this Agreement or of any duty or obligation of performance hereunder shall be made in whole or in part by Developer withòut the written consent of City. 3.6 Ambiguities or Uncertainties. Any ambiguities or uncertainties herein shall be equally and fairly interpreted and construed without reference to the identity of the party or Parties preparing this Agreement, on the express understanding and agreement the parties participated equally in the negotiation and preparation of the Agreement, or have had equal opportunity to do so. Accordingly, the Parties hereby waive the benefit of California Civil Cãde $1654 and any successor or amended statute, providing that in cases of uncertainty, language of a contract should be interpreted most strongly against the Party who caused the uncertai"t' to exist. 3.7 Severability. If any provision or any part of any provision of this Agreement shall, for any reason, be held invalid, unenforceable, or contrary to public policy or law, the remainder of this Agreement shall not be affected thereby, and shall continue to be value and enforceable. 3.8 Counterparts. This Agreement may be executed in counterparts, including true and accurate copies of the original, all of which, when taken together, shall be deemeã one original agreement. Any executed copy shall not be binding upon any party until all parties have duly executed a copy of this Agreement. 3.9 Attorneys Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other párty its rãaìonáble attorney's fees and legal expenses. For the pu{poses of this Agreement, "attorneys' fees" and"legal expenses" include, without limitation, paralegals' fees and expenses, attorneys, consultants fees and expenses, expert witness fees and expenses, and all otheiexpenses incurred by the prevailing party's attorneys in the course of the representation of the prevailing party in anticipation of and/or during the course of litigation, whether or not otherwise recoveiable as "attorneys' fees" or as 'ocosts" under California law, and the same may be sought and awarded in accordance with California procedure as pertaining to an award of contractual ãttomeys' fees.3.10 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. /// Page 4 of 5 The parties have executed this Agreement on the day and year first above written. CITY OF X'RESNO, a Municipal Corporation Public Works Department Scott L. Mozier, Director By: Scott Date: ATTEST: Yvonne Spence, CMC City Clerk By: I 5' APPROVED A.S TO FORM: Douglas Sloan City A By: DEVELOPER; FFDA Properties LLC By: a- /o-a0t5 Title: (Attach Notary Acknowledgment(s)) Print Name: APPROVED AS TO FORM: DEVELOPER ATTORNEY By: þvanøt. Date: Print Name: Title: Exhibit A: Eligible Construction Costs Page 5 of5 CALIFORNIA ALL.PURPOSE ACKI{OWLEDGMENT crvrl coDE s 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this ceftificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California T)ci-\-r\ìS il'.9c,nn Title of the Officer i County of l-',71-15 before me, Date personally appeared Name(s) of Signer(s) Place Notary Seal Above Though fhrs secfion is optional, completing this fraudulent reattachment of Description of Attached Document Title or Type of Document: Number of Pages: Signer(s) Gapacity(ies) Claimed by Signer's Name: ,_I Corporate Officer - Ti I Partner - Ll Limited tr lndividual E Trustee tl Other: I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature can deter alteration of the document or to an unintended document. Document Date: Named Above: Signer's Name: lCorporate Officer - Title(s): Partner- ilLimited I General rAttorney in Fact I lGuardian or Conservatoran or Conservator Signer ls Signer ls Representing: @2014 Ñational Nolary Association . www.NationalNotary.org . 1-800-US NOTARY (1-800-876-6822) Item #5902 LrAf{A LEWA Commission # 2078311 l{otary Public - C¡lilornie Fresno Coulfi EXHIBIT A Construction Costs COST ESTIMATE BROADWAY / FU ITON ALLEY PAVEM ENT RECONSTRUCTION BETWEEN CALAVERAS AND SAN JOAQUIN STREETS ITEM DESCRIPTION QUANTITY $ urulr cosr $ rxre¡¡slolrr STREFT CONSTRUCTION 1. Mobilization 2. Traffic Control 3. Excavation and Gradíng 4. Valley Gutter 5. Valley Approach 6. Asphalt Pavement 400 LF $ 2Ea 6,400 sF LUMP SUM $ LUMP SUM tUMP SUM 22.O0 2,000.00 3.50 2,500,00 2,000.00 8,000,00 8,800.00 4,000.00 22,400,00 MISCEU:qNËOUs 1. Engineering 2, Plan Check and lnspection 3. Contract Adminstration and Supervision STREET CONSTRUgI'ION MISCETLANEOUS SUBTOTAL ESTIMATED COSTS 9 47,700.Oo 4800,00 8,300,00 4800.00 TOTAL MTSCELTANEOUS $ 17,900.00 SUMMARY 47,700.OO 1.7,900.00 TOTÂL-ESTTMATED GOSTS g 651600J0 Page 1 of 2 EXHIBIT A Construction Costs COST ESTIMATE UNDERGROUNDING OVERHEAD UTILITI ES BROADWAY / FULTON ALLEY -BETWEE N_CAEVERASAÑDSAIqTOAQI'T¡II_STREETS--:- ITEM DESCRIPTION QUANTITY $ uu¡r cosr $ Err¡ns¡oru JOINT TRENCH 1. Trench 2. 2',8F'720 3. 3" 8D120 4. 4" 8D120 5. 6n 8D120 6. Transformer pad 7. S7 Vault 8. PMH #9 Pad 9. Switch Over 10, Tie to Riser Pole 11. 4" Telephone 12. 3x5 Telephone Vault 13. House Panel Conversions s00 LF s 2OO LF 3OO LF 1,900 LF 5OO LF 2Ea 2Ea 1Ea LEa lEa 1,800 LF 2Êa 5Ea 10.00 '2.25 2.75 3.00 4.2s 1"600.00 ¿200,00 2,000,00 1,500.00 500.00 4.25 3,800.00 4000.00 5,000.00 450,00 825.00 5,400.00 2,125.O0 3,200.00 L4,400,00 2,000.00 1,500,00 500.00 ¿650.00 7,600.00 20,000.00 SUBTOTAI ESTIMATED COSTS 70,650.00 PG&E L. PG&E Wíre Pult 2. PG&E Fees CIÏY OF FRESNO ADMINISTRATIVE COSTS srREFr c0NSTRuct]oN (PAG E 1) MTSCELLANEOUS (PAGE 1) LUMP SUM LUMP SUM SUBTOTAT PG&E COST TOTAL REIMBURSABLE COSTS $ 160,000.00 160,000,00 320,000,00 {3,000.001 47,700.00 17,900.00 453,250,00 Page 2 of 2