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HomeMy WebLinkAboutFFDA Properties Measure C Transit Oriented Dev Program Broadway Project Off Site Improvementsa l4-toz4 t al rt laot{ Gc -oL)-7.Oa-ulocr .9IE IOOq !YÊàirJ c) O MEASURE T<ç'' 1'RA\SIT-ORIENTED DEVELOPMENT PROGRAM INFRASTRUCTURE PROJECT REIMBURSEMENT AGREEMENT (OF'F-SITE IMPROVEMENTS INCLUDING \ryATER MAIN) 'Developer"). RECITALS V/HEREAS, on February 27, 2014, the Fresno City Council ("Council") adopted Resolution No. 2014-37 authorizing staff to apply for Measure 'CD TransirOriented Development (TOD) funding for the Broadway Project Off-Site Improvements ("project,,); WHEREAS, the application was approved for funding through the TOD program procedures established by the Fresno Council of Govemments ("COG') and Fresno Co:unty Transportation Authority ("FCTA"); WHEREAS, the City and FCTA have entered into a cooperative agreement for the Project, as executed on February 12,2014; V/HEREAS, the City conditioned approval of Conditional Use Permit Application No. C-11-163, C-I2-002, on developer construction of off-site improvements abutting the project site including an S" water main in calaveras Street as per public'works Standards; WHEREAS, City applied the same condition of approval on Vesting Tentative Tract Map No. 60 1 5 conditions of Approval "General conditions " 2T, (as incorporated); WHEREAS, the costs of constructing the improvements required by Condition of Approval for Conditional Use Permit No. C-l l-163, C-I2-002, and Condition of Approval forVesting Tentative Tract Map No. 6015, Condition 27 whtchrequired the developer to construct off-site improvements abutting the project site, including an eight inch water rnain in Calaveras Street as per Public Works Standards ("Improvements"), will be reimbursed in accordance with this Agreement; and V/HEREAS, 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., io, such work. 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 City upon completion. Page 1 of5 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 i.r-, 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 requirèments to obtain approval of construction plans or obtain necessary building, street-'irork, 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. 6015.1'3 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) pay, andwill 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 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 cause its contractor, to post at the project area the applicable prevailing rates of per diem wages. Developer shal inãemnify, hold harmless and defend (with legal counsel reasonably acceptable to the City) the City against any claim for damages, compensation, arising out óf the failure or alleged failure of any person or ntractors and subcontractors) to pay prevailing wages as requ other applicable provisions of Labor Code sections 1720 et se ing regulations of the Department of Industrial 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 timeDeveloper seeks reimbursement for the eligible costs of constructing the Improvement. Developer's failure to provide the necessary documentation evidenclng certaìn eligible construction costs will result in the City not reimbursing the Developer fır those otherliseeligible construction costs. Acceptable documentation of ECAC includes invoices for construction materials used to construct the Improvement and invoices from contractors and subcontractors 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 ellgible construction costs, City shall have the option of refusing to reimburse Develop., io, any oi 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. 1.7 To the furthest extent allowed by law, including California Civil Code section 2782, Developer shall indemnifu, hold harmless and defend (with legal counsel reasonably acceptable to the City) City and each of its offrcers, officials, employees, agents and volunteersfrom any and all loss, liability, fines, penalties, forfeitures, .o.t, and dãmages (whether in conttact, tort or strict liability, including but not limited to personal injury, deathat any time and Page 2 of5 property damage) incurred by City, Developer or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fèes and litigation expenses), arisingor alleged to have arisen directly or indirectly out of performun.. oi this Agreement or thãperformance of any or all work to be done by Developer or its contractor, subcontractor, agents, successors and assigns pursuant to this Agreement. Developer's obligations under the piecãding sentence shall apply regardless of whether City or any of its officers, offrcials, .-pìoy.., oi agents are passively neglect, but shall not apply to any loss, liability, fines, penalties, forft itur.r, costs or damages caused solèly by the active negligence, or the wiml miscånduct of City or anyof its officers, offrcials, employees, agents, or vclunteers. 2. City's Oblieations 2.I The Engineer's Estimate of the ECAC (including an allocation for Eligible Professional Services) of constructing the Improvement is $298f58. An itemization of theindividual Eligible Construction Costs is attached hereto as Exhibit "A.', Upon Developer,s compliance with Section 1.5 to the reasonable satisfaction of the Director of the Departmurt ofPublic 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 staffrng limitations, City shall use its best efforts to review thedocumentation of eligible construction costs and, if the documentation is determined to besufficient, issue the reimbursement within 30 days of receiving from Developer all of thedocumentation of eligible construction costs required by City. If Developer has submitted documentation prior to the execution of this Agreement, no obligation to issuà 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 tothe benefit of the parties hereto and their predecessoïs; successors; assigñs; past, present, orfuture affiliated and related entities; off,tcers; members; agents; employees; and representatives.3.2 Integration. This Agreement constitutes the complete and final agreement of theparties with respect to ned to in this Agreement. This Agreement supersedes all prior or ations, promises, covenants, agreements, andrepresentations of every respect to the subject matters referred to in this Agreement, all of which have become merged and finally integrateã into this Agreement.3.3 Incorporation of Attachments. All recitals and attachments tã this Agreement,including all Exhibit(s) referenced herein, and all subparts thereto, are incorporated herein by this reference. 3'4 Modification. Any modification of this Agreement must be in writing and signedby all parties. No oral modifications shall be effective to vary or alter the terms of thisAgreement. 3.5 No Assignment. No assignment of this Agreement or of any duty or obligationof 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 beequally and fairly interpreted and construed without reférence to the identity of the party orParties preparing this Agreement, on the express understanding and agreement the parties participated equally in the negotiation and preparation of the Agreem.nl, o. have had equal opportunity to do so. Accordingly, the Parties hereby waive the benefit of California Civil Cãde Page 3 of5 $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 unceriai"iy ,o 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 orlaw, 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 oneoriginal 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, th. pr.rruilinf party-in such proceeding or action shall be entitled to recover from the other párty its reasonáUte attomey's fees and legal expenses. For the purposes of this Agreement, 'àtto*.yr, fees,, and"legal limitation, paralegals' i..r and expenses, attorneys,consul witness fees and expenses, and all otheiexpenres inc.rneá by the the course of the representation of the prevailing party inanticipation 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 California procedure as pertaining to an award of contractual ãttorneys, fees.3.10 Waiver of Terms. The waiver by either party of a breach by the óther of anyprovision 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 pu.ti.. to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other lrovisionherein. Page 4 of 5 The parties have executed this Agreement on the day and year first above witten. CITY OF'F'RESNO, a Municipal Corporation Public Works Department Scott L. Mozier, Director By: ATTEST: Yvonne Spence, CMC City Clerk By: APPROVED AS TO FORM: Douglas Sloan Crty A By: t\¡-E r,.,.. Date: Exhibit A: Construction Costs DEVELOPER FFDA PROPERTIES, LLC. By: Date: /5- 2O/.5 Print N Title: (Attach Notary Acknowledgment(s)) APPROVED AS TO FORM: DEVELOPER ATTORNEY By: Print Name: Title: Scott L. Mozier, Director tlrslærÇ Page 5 of5 CALIFORNIA ALL.PURPOSE ACKNOWTEDGMENT clvrL coDE s 1189 ::ï'j Ì On before me, Date personally appeared Name(s) of Signer(s) LIANA LEWA Comm¡ssion # 20lgg41 ilotery Publ¡c - Californie Frcsno Gounty Place Notary Seal Above Though this section is optional, completing this fraudulent reattachment of this Description of Attached Document Title or Type of Document: IParlner- trLimited n lndividual E Trustee fl Other: Signer ls who proved evidence to subscribed toto me that person or the entity upon behalf of which theperso cted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS Signature: Number of Pages: Signe(s)Than Named Above: Capacity(ies) Claimed by Signer's Name:Signer's Name: E Corporate Officer - Title(s can deter alteration of the document or to an unintended document. Document tr Corporate Officer - Title(s): nPartner- ILimited l]General n lndividual I Attorney in Fact n Trustee n Guardian or Conservator Signer ls Representing: @ 20'13 National Notary Association . www.NationalNotary.org . 1-800-US NOTARY (1-900-g76-6g27) ltem #Sg07 EXHIBIT A Construction Costs COST ESTIMATE TRACT 6015 PUBLIC IMPROVEMENTS SAN JOAQUIN, BROADWAY, AND CALAVERAS STREETS ITEM DESCRIPTION QUANTITY S uNrr cosr S EXTENSIoN OFF-SITE STREET CONSTRUCTION L. Mobilization 2. Clearing and Grubbing 3. Excavation and Grading 4. Curb and Gutter 5. Sidewalk 6. Return Landing w/Ramp 7. Driveway Approach 8. Pavement 9. A.C. Plug 10. Traffic Control 6ss LF s 5,770 SF s LEA s 2EA s 2,400 sF s 310 LF S LUMP SUM S LUMP SUM LUMP SUM 14.00 4.50 2,200.00 1,400.00 7.OO 12.00 LUMP SUM 3,000.00 8,000.00 3,000.00 9,170.00 25,965.00 2,200.00 2,900.00 16,800.00 3,720.O0 5,000.00 SUBTOTAL ESTIMATED COSTS S Zg,CSS.OO MISCELLANEOUS 1. Street Trees and lrrigation 2. Street Lights (Relocate & Adjust) 3. Signage and Striping FEES AND CHARGES L. Plan Check and lnspection 2. Engineering 3. Soils Testing 4. Contract Administration and Supervision TOTAL OFF-SITE STREET CONSTRUCTION 23 EA S zso.oo LUMP SUM LUMP SUM TOTAL MISCELTANEOUS TOTAL FEES & CHARGES 5,750.00 20,000.00 8,000.00 33,750.00 11,557.00 8,800.00 1,900.00 16,560.00 38,7t7.O0 152,122.OO Page L of 2 EXHIBIT A Construction Costs COST ESTIMATE WATER MAI N CONSTRUCTION CALAVERAS STREET BETWEEN THE BROADWAY-FULTON-ALLEY AND BROADWAY ITEM DESCRIPTION QUANTITY S uNrr cosr S EXTENSIoN JOINT TRENCH 1. Clearing and Grubbing 2. 8" Water Main 3. 4" Fire Service 4. 2" Service 5. Fire Hydrant 6. 4" Temporary Blow Off 7. Trench Resurfacing 8. Wet Ties 9. Traffic Control LUMP SUM S 35.00 3,500.00 1,230.00 4,000.00 1,500.00 30.00 LUMP SUM LUMP SUM 743 Lt s 2EA 7EA 1EA 2EA 9OO LF 8,000.00 26,005.00 7,000.00 8,610.00 4,000.00 3,000.00 27,000.00 27,400.00 3,500.00 TOTAT WATER CONSTRUCT¡ON COST FEES AND CHARGES 1. Plan Check and lnspection 2. Engineering 3. Soils Testing 4. Contract Administration and Supervision TOTAL FEES AND CHARGES TOTAT OFF.SITE WATER CONSTRUCTION TOTAL TRACT 6015 PUBLIC IMPROVEMENT COST CITY OF FRESNO ADMINISTRATIVE COSTS TOTAL RETMBURSABLE COSTS S 298,658.00 114,515.00 11,773.00 6,871.00 1,200.00 t7,L77.00 37,021.00 151,536.00 303,658.00 (5,000.00) Page2 of 2