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Home My WebLink AboutFFDA Properties Measure C Infrastructure Reimbursement Broadway Fulton Alley Pavement from San Joaq/l/.; f i 5 MEASURE*C" TRANSIT.ORIENTED DEVELOPMENT PROGRAMINF'RASTRUCTURE PROJECT REIMBURSEMENT AGREEMENT(BROADWAY.FULTON ALLEY PAVEMENT NNCOÑSTRUCTION FROM SANJOAQUIN TO AMADOR STREET) -o--'AOî5 between Fresno, Properties LLC \ r,,uvcrupcr ). THIS A (.,Agreement,') is made and entered into y l::iü Fresno, a California municipat corpor ,) ?iço3'za uq)crQ[:=u-OOøíıOO rj RECITALS , on April 1I,2013, adopted a resolutionapply for Measure Gob) funding foron Alley Pavemen to Amador Street WHEREAS' the application was approved for funding through the ToD programprocedures established by the Fresno Councit of Governments ("CoG,) and Fresno CountyTransportation Authority (,.FCTA,'); and WHEREAS, the city and FCTA have entered into a cooperative agreement for theProject, as executed on February 12,2014; and, WIIEREAS, Con No. C_09-125, [Revision C- don adway_Fulton Alley from Sa per WHEREAS, City applied the same condition of approval on vesting Tentative Tract MapNo. 5956 condition of Approval "General conditions', zà) @rincorporatedj; unà IVIIEREAS, the costs of constructing Approval for Conditional Use permit No. C_0 Vesting Tentative Tract Map No. 5956 Conditio Fulton Alley from San Joaquin to Amado- ("Improvements") will be reimbursed in accordance with this Agreement; and wrrEREAS, City and Developer now wish to set forth the obligations of the Developerassociated with the Improvements and the conditions for reimbursemr-nt of the Developer forsuch work. t) Page 1 of 6 AGREEMENT In consideration of the foregoing recitals and the obligations undertaken by the parties as hereinafter set forth, the parties agree as follows: 1. Oblieations of the Developer 1.1 Developer shall construct the Improvements, which will be installed and accepted by the City upon completion. l'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 i"r.n, 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 specif,rcations related to the construction of the Improvements, including any requirèments to obtain approval of construction plans or obtain necessary building, streetworþ encroachment or other perlnits or to comply with any requirements or conditions þlaced on.the issuance of thosepermits (e.g' insurance, improvement security, etc.). Nothing in tfris Agreement shall alter or waive any Condition of Approval or requirement for Conditional Use Peimit No. C-09-1251 C- 10-067 and Vesting Tentative Tract Map No. 5956, or any requirement of the Subdivision Agreement for Final Map of Tract No. 5956.1.3 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, that, to the extent required by law, it will (a) pay, and cause its contractors and subcontractors to pay, prevailing wages foi the constructíon ái tn"Improvement and (b) comply with the other applicable provisionJ of Labor Code, section T720 etseq.' and implement regulations of the Department of Industrial Relations, necessary to determine that prevailing wages have been paid as required by law. During the construction ofthe Improvement, Developer will, or will case its contractor, to post at ihe project area the applicable prevailing rates of per diem wages. Developer shall inãemnify, 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 ;f tñe failure or allegedfailure of any person or entity (including Developer, its contractórs and subcontractors) to pay prevailing wages as required by law or to comply with the other applicable provisions of Labor Code sections 1720 et seq., and/or the implementing regulations of itr" Department of Industrial \g!4tjo&s-in connectiqn with çqu-stnlctiqn qf thç Lmprovomcnt-I.4 Developer shall maintain written documentation evidencing the ECAC Costs theDeveloper incurred in constructing the Improvement for submittal to 1ne City at the timeDeveloper seeks reimbursement for the eligible costs of constructing the Improvement. Developer's failure to provide the necessary documentation evidencìng certain eligible construction costs will result in the City not reimbursing the Developer for those otheriviseeligible construction costs. Acceptable documentation of ECAC includes invoices for construction materials used to construct the Improvement and invoices from contractors andsubcontractors clearly identifying 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 theImprovements. If the Developer fails to submit the documentation evidencing the eñgible Page2 of 6 construction costs, City shall have the option of refusing to reimburse Developer for any of the otherwise eligible costs of construction. 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. I.l To the furthest extent allowed by law, including Civil Code Section 27g2, Developer shall indemnif¡r, hold harmless and defend (with legal counsel reasonably acceptable to City) City and each of its officers, officials, employees, agents, and volunteers fiom any andall loss, liability, fines, penalties, forfeitures, 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 aná ail claims, ¿emands and actions in law or equity (including attorneys' fees and litigation expenses), arising or alleged to have arisqn directly or indirectly out of performance of this Agreemãnt or the perfãrmance of 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, off,rcials, employees or agents are passively negligent, but shall not apply to any loss, liability, fines, penaltiós,lorfeitures, costs or damages caused solely by the active negligence, or the willful misconduct of City or any of its officers, officials, employees, agents, or volunteers. 2. Citv's Oblieations 2.1 The Engineer's Estimate of the ECAC (inctuding an allocation for Eligible Professional Services) of constructing the Improvement is g61,500.00. 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 insufficigncies in the documentation within 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 documeritation 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 the last 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; ánd rãpresentatives.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. ftris 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. Page 3 of 6 3.3 Incorporation of Attachments. All recitals and attachments to this Agreement, including all Exhibit(s) referenced herein, and all subparts thereto, are incolporated herein by this reference. 3.4 Modification. Any modification of this Agreement must be in writing and signed by all parties. No oral modifîcations shall be effective to vary or alter the terms of this 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 without 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 Càde $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 uncertainty toexist. ,i Ì, 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 continui 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 partyln such proceeding or action shall be entitled to recover from the other party its rãaìonãble attomey's fees and legal expenses. For the purposes of this Agreement, 'bttoineys, fees,' and"legal expenses" include, without limitation, paralegals' fees and expenses, attorneys, consultants fees and exponses, expert witness fees and expenses, and all otheiexpenses incuned 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 "4ttorneys' fggs" or as "qosts-" under Califomia law, and the same may be s-ought and awarded in accordance with California procedure as pertaining to an award of contractual àttorneys, 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. The parties have executed this Agreement on the day and year first above written. Page 4 of 6 CITY OF FRESNO, a Municipal Corporation Public Works Department Scott L. Mozier, Director By: Date: ATTEST: Yvonne Spence, CMC City Clerk Douglas Sloan City Att By: Exhibit A: Construction Costs DEVELOPER FF'DA PROPERTIES LLC By â/ â-/o-àots Tirle: (Attach Notary Acknowledgment(s)) Print Name: APPROVBD AS TO F'ORM: DEVELOPER ATTORNEY By: By: 5 APPROVED AS TO FORM: Print Name: Title: Page 5 of 6 GALIFORNIA ALL.PURPOSE ACKNOWLEDGMEI{T ctvtl coDE s 1189 A notary public or other officer completing this ceftificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California _ County of On I-21 -16 before me, Date personally appeared I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. I Corporate Officer - Title(s): T Partner - L I Limited ¡ Gener can deter alteration of the docurnent or an unintended document. Date: Signer's Name: ìCorporate Officer - Title(s): i Partner - I I Limited t i General I lTrustee L I Other: I lAttorney in Fact I lGuardian or Conservator fl lndividual [ ]Trustee tr Other: lAttorney i ct rl Conservator Signer ls Representing:Signer ls Representing: Name and Title df the Officer Name(s) of Signe(s) subscribed to the within instrument and acknowledged to me that executed the same in/herlthdrsignatur strument the perso¡ls)ç LIANA LEWA Commission # 20lgg41 Notary Public - California Fresno County Place Notary Seal Above OPTIONAL Though this sectlon is optional, completing this i, fraudulent reattachment of this Description of Attached Document Title or Type of Document: Number of Pages: Signer(s) Other Named Gapacity(ies) Claimed by Signer(s) Signer's Name: _._, WITNESS Signature @2014 National No Association . www.NationalNotary.org . 'l-800-US NOTARY (1-800-876-6827) ltem #5907 Exhibit A Construction Cost COST ESTIMATE I ROADWAY/FU LTO N A LLEY pAV EM ENT R ECONSTRUCfl O N BETWEEN SAN JOAQUIN AND AMADOR STREETS s s 390,00 260.00 tUMP sUM 22.00 5.00 22.40 780.00 CONSTRUTTION COSTS MISCELLANEOUS City Administrative Costs Total Reímbursable Cost -- lTEMnESCel coNsTRucfloN cosTs t. MobilizatÍon Z. Traffìc Control 3. Excavation and Grading 4. Valley Gutter 5. Alley Approach 6. Curb & Gutter 30" 7. Asphalt Pavement MISCELTANËOUS 7. Plan Check and lnspection 2. Contract Administration and Supervision SUMMART 2Ea t4 Ea 348 LF S 600 tF $s4rr s 176 TONS $ rgo.oo TOTAL CON STRUCTION COSTS $ s,897.07 I .. 4,7t4.92 TOTAL M|SCEH-ANEOUS COSTS $ 10,611.99 S sz,38g,ol5 .., ro,eu,gg TOTAT. ESTTMATED COST g 63,000.00 $ (1,s00.001 S o1,5oo.oo S s,G4o.oo $ 13,244.01 s 7,656.00 $ r,000,00 $ r,18g.oo S z2,B8o,oo $ sz,3sa.ol Page 6 of6