HomeMy WebLinkAboutFFDA Properties Measure C Infrastructure Reimbursement Storm Drain in L St btwn Calaveras and San Jl5 o/L (/
MEASURE T6C" TRANSIT.ORIENTED DEVELOPMENT PROGRAM
INFRASTRUCTURE PROJECT REIMBURSEMENT AGREEMENT
(STORM DRAIN FACILITIES IN L STREET BETWEEN CALAVERAS AND SAN
("city'')
RECITALS
WHEREAS, on April I1,2013, the Fresno City Council ("Council") adopted a resolution
authorizing staff to apply for Measure "C" Transit-Oqiented Develop-.rri (TOD) funding for
the construction of storm drain facilities in L Street between Calaveias and San Joaquin Étreet("Project"); and
WHEREAS, the application was approved for funding through the TOD program
procedures established by the Fresno Council of Governments ("COG") and Fresno Coînty
Transportation Authority ("FCTA',); and
WHEREAS, the City and FCTA have entered into a cooperative agreement for the
Project, as executed on February 12,2014; and
WHEREAS, the City conditioned approval of Conditional Use perrnit Application No.C-ll-014,'on developer construction of storm drain facilities on L Street between Calaveras and
San Joaquin Streets; and
No 5e ;iry"','Jiåiîy#':"å;îiî:îîi;î":äf,:April2 an Flood Control óirt i.t (as incorporakd); and
WHEREAS, the costs of constructing the improvements required by Condition ofApproval for Conditional Use Permit No. C-l1014, and Condition óf Approval for Vesting
Tentative Tract Map No. 5994, Condition 38 and Specific Condition a ({-which required thã
developer to construct storm drain facilities in L Skeet from Calaveras ûo-San Joaquin Streets("Improvements"), will be reimbursed in accordance with this Agreement; and
WHEREAS, prior to execution of this Agreement, the Developer has installed the
Improvements; 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.
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JOAQUIN STREETS)
THIS AGREEMENT ("Agreement") is made and entered into thiseùE , between the City of Fresno, a California municipal corporation
Properties LLC. ("Developer").
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.
I.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 duties
of 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-work, encroachment or
other permits or to comply with any requirements or conditions placed on the issuance of those
permits (e.g. insurance, improvement securit¡ etc.). Nothing in this Agreement shall alter or
waive any Condition of Approval or requirement for Conditional Use Permit No. C-l1-014 and
Vesting Tentative Tract Map No. 5994.
1.3 As City is reimbursing Developer for the Eligible Costs of Actual Construction
(ECAC), the Improvement is a "Public Work" as defined by Califomia Labor Code, Section
1720(a). Developer agrees and warrants that, to the extent required by law, it will (a) pa¡ and
will cause its contractors and subcontractors to pay, prevailing wages for the construction of the
Improvement and (b) comply with the other applicable provisions of Labor Code, section 1720 et
seq., and implement regulations of the Department of Indushial Relations, necessary to
determine that prevailing wages have been paid as required by law. During the construction of
the Improvement, Developer will, or will cause its contractor, to post at the Project area the
applicable prevailing rates of per diem wages. Developer shall indemnifu 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 (inctuding 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 L720 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 at the time
Developer seeks reimbursement for the eligible costs of constructing the Improvement.
Developer's failure to provide the necessary documentation evidencing certiin eligible
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 construct the Improvement and invoices from contractors and
subcontractors clearly identiffing 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 evidencing the eligible
construction costs, City shall have the option of refusing to reimburse Developer for any oi the
otherwise eligible costs of construction.
Page 2 of 6
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 indemniSr, 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, 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 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 performance 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 undêr 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, liability, fines, penalties, forfeitures, 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. City's Oblieations
2.1 The Engineer's Estimate of the ECAC (including an allocation for Eligible
Professional Services) of constructing the Improvement is $88,180.00. An itemization of 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
documentation within 15 days of receþt 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 etigible construction costs required by
City. If Developer has submitted documentation prior to the execution of this Agreement, no
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 Agreeryrent 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 of 6
3.4 Modification. Anymodification of this 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.
3.5 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 Code
$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 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 deemed 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 party its reasonable
attomey's fees and legal expenses. For the pu{poses of this Agreement, "attorneys' fees" and
"legal expenses" include, without limitation, patalegals' fees and expenses, attorneys,
consultants fees and expenses, expert witness fees and expenses, and all other expenses 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 recoverable as
"attorneys' fees" or as "costs" under California law, and the same may be sought and awarded in
accordance with Califomia procedure as pertaining to an award of contractual attorneys' 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 provisiorr
herein.
The parties have executed this Agreement on the day and year first above written.
CITY OF'FRESNO,
a Municipal Corporation Public Works Department
Page 4 of 6
Scott L. Mozier, Director
å -/o-âots
ATTEST:
Yvonne Spence, CMC
City Clerk
By:
APPROVED AS TO FORM:
City
By:
Exhibit A: Construction Costs
Date:
DEVELOPER:
FFDA
By:
Print Name:
Title:
(Attach Notary Acknowl edgment(s)
APPROVED AS TO F'ORM:
DEVELOPER ATTORNEY
By:
Print Name:
Title:
z1
Douglas Sloan
Page 5 of 6
GALIFORNIA ALL.PURPOSE ACKNOWLEDGMEI{T 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 certificate is attached, and not the truthfulness, accuracy, or validiÇ of that document.
State of California
Date
personally appeared
or the entity upon behalf of which the person(pf acted, executed the instrument.
Description of Attached Document
Title or Type of Document:
Number of Pages: Signe(s)Than Named Above:
Gapacity(ies) Claimed by Signer(s)
Signer's Name: _._.Signer's Name:
I Corporate Officer - Title(s):
Though fhls secfion is optional, completing this
fraudulent reattachment of this
tr Partner - I Limited fl
tr lndividual I
E Trustee I
t ] Other:
Signer ls Representi
A2ü4 Naiional
can deter alteration of the docurnent or
to an unintended document.
Document Date:
i ìCorporate Officer - Title(s):
in Fact
Partner - | Limited I lGeneral
lndividual i iAttorney in Fact
or Conservator I I Guardian or Conservator
Srgner ls Representing:
County of )
l-21- i5 before me,
Here lnéert Name and Title bf the Officer
Name(s) of Signe(s)
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS
Signature
LIANA LEWA
Commission # 2078341
Notary Public - California
tresno County
Place Notary Seal Above
Association . www.NationalNotary.org . 1-800-US NOTARY (1-800-876-6827) ltem #5907
EXHIBIT A
Construction Costs
COST ESTIMATE
CONSTRUCTION OF STORM DRAIN FACILITÌES IN L STREET
BETWEEN CALAVERAS AND SAN JOAQUIN STREETS
#ESGRtPItONHHANTUr¡-__3Èry¡1.ces¡-_5'Elff E¡sro+
coNSTRUCflON COSTS
1. Mobllization'
2. Type'A', Case I Manhole
3. 19" RCP
4. Type'D' lnlet
5. Pavement Restoration
6. Traffic Control
LUMP SUM $
2 Ea $ 2,8C[}.00
504 LF 70.00
2 Ea 4000.00
LUMP SUM
LUMP SUM
2,500.00
5,600.00
35,280,00
8.000.00
12,600_00
4,000,00
MI5CELLANEOUS
1. Engineering
2. Plan Check and lnspection
3. Contrâct Adrninstration and SupervÌsion
CITY OF FRESNO ADMINISTRATIVE COSTS
STREFT CONSTRUCTION
MISCEI-LANEOUS
CIW OF FRESNO ADMINISTRATIVE COSTS
TOTAT CONSTRUCTTON COSTS $ 67,980.00
$ s,Eoo.oo
9,400.00
6,800.00
TOTAT MTSCETLANEOUS S e1,700,00
s (1,500.00)
SUMMARY
S 6z,ggo.oo
21,700.00
(1,500.00)
TOTAT ESTTMATED COSTS g 8S,180.00
Page 6 of6