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HomeMy WebLinkAboutFFDA Properties Measure C Transit Oriented Dev Program Met Block Off Site*t4-b23 IJf tt ¡aoN ñ Co3' ãa-u_l oı.qLE IOO-ø t=LO()ı; ı MEASURE rt g'r 1Rr{NSIT-ORIENTED DEVELOPMENT PROGRAM INF'RASTRUCTURE PROJECT REIMBURSEMENT AGREEMENT (OFF-SITE TMPROVEMENTS) THIS AGREEMENT ("Agreement") is made and entered into this 2074, between the city of Fresno, a california municipal corporation Properties, LLC. ("Developer"). ("City") and FFDA RECITALS WHEREAS, on February 27, 2074, the Fresno City Council ("Council") adopted Resolution No. 2014-37 authorizing staff to apply for Measure "CÐ Transit-Oriented Development (TOD) funding for the Met Block Project Off-Site Improvements ("Project"); and WHEREAS, the application was approved for funding through the TOD program procedures established by the Fresno Council of Governments ("COG") and Fresno County Transportation Authority ("FCTA"); and WHEREAS, the City and FCTA have entered into a cooperative agreement for the Project, as executed on September 10, 2014; an WHEREAS, the City conditioned approval of Conditional Use Permit Application No. C-13-737 and Vesting Tentative Tract Maps 6059 and 6060, on developer construction of off- site improvements abutting the project site on Calaveras, Fulton and Stanislaus Streets as per Public Works Standards; and WHEREAS, City applied the same condition of approval on Vesting Tentative Tract Map No. 6059 and 6060 Conditions of Approval "General Conditions" 27, (as incorporated); and V/HEREAS, the costs of constructing the improvements required by Condition of Approval for Conditional Use Permit No. C-13-137 and Conditions of Approval for Vesting Tentative Tract Map Nos. 6059 and 6060, Condition 27 which required the developer tó construct ofÊsite improvements abutting the project site, on Calaveras, Fulton and Stanislaus Streets as per Public Works Standards ("Improvements"), will be reimbursed in accordance with this Agreement; 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 Developêr for 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. Oblisations of the Developer Page 1 of5 1.1 Developer shall construct the Improvements, which will be installed and accepted by the City upon 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 t.rrr6 and limitations setforth in this Agreement. Nothing in this Agreement shall altei 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, includi"ã *y requirãments to obtain approval of construction plans or obtain necessary building, street-'iork, encroachment or other permits or to comply with any requirements or conditions llaced on the issuance of thosepermits (e'g. insurance, improvement security, etc.). Nothing in this Agreement shall alter or waive any Condition of Approval or requirement for Conditional Use peimit No. C-13-137 and, Vesting Tentative Tract Map Nos. 6059 and 6060.1'3 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, Section1720(a). Developer agrees and warrants that, to the extent required by law, it will (a) pay, and,will cause its contractors and subcontractors to pay, prevailing wages for thá construction of the Improvement and (b) comply with the other applicable provisions olLabor 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 inàemni$2, 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 óf túe failure or allegedfailure of any person or entity (including Developer, its contractors and subcontractors) to pay prevailing wages as required by law or to co ,ly with the other applicable provisions of Labor Code sections 1720 et seq., and/or the implementing regulations of 1tt. Department of Industrial Relations in connection with construction of the Improvement.I.4 Developer shall maintain written documentation evidencing the ECAC Costs theDeveloper incurred in constructing the Improvement for submittal to the Cíty 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 otherliseeligible construction costs. Acceptable documentation of ECAC includes invoices for construction materials used to construct the Improvement and invoices from contractors andsubcontractors clearly identiffing the labor and materials expended to construct the Improvement. 1.5 Developer shall submit to City's Department of Public Works - Constructionall documentation evidencing the eligible costs of constructing the Developer fails to submit the documentation evidencing the ellgible shall have the option of refusing to reimburse Develope, io, ury oi th. otherwise eligible costs of construction. | '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.7 To the furthest extent allowed by law, including Califomia Civil Code section 2782, Developer shall indemniff, hold harmless and defend lwith legal counsel reasonably acceptable to the City) City and each of its offrcers, officials, employees, agents and volunteers Page 2 of5 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, deatlr-at any time and property damage) incurred by City, Developer oï any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arisingor alleged to have arisen directly or indirectly out of performunre oi this Agreement or the performance of any work done by Developer or its contractors, subcontractors, agents, successors and assigns pursuant to this Agreement. Developer's obligations under the precãding sentence shall apply regardless of whether City or any of its officers, officials, .-pìoy.., oi agents are passively negligent, but shall not apply to any loss, liability, fines,'puralties, forfeitures, costs or damages caused solely by the active negligence, or the wiilnl miscónduct, oicity or any of its officers, officials, employees, agents or vorunteers. 2. Citv's Oblieations 2.1 The Engineer's Estimate of the ECAC (including an allocation for Eligible Professional Services) of constructing the Improvement is $116,:42. An itemization oi theindividual 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 thi 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, 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 by City. If Developer has submitted documentation prior to the execution of this Agreement, no obligation to issuè 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 predecessors; successors; assigns; past, present, or future affrliated and related entities; offtcers; members; agents; employees; ándrãpresentatives.3.2 fntegration. This Agreement constitutes the complete and final agreement of theparties with -respect to the subject matters refened 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 refened to in this Agreement, all of which have become merged and finally integrated into this Agreement.3.3 fncorporation of Attachments. All recitals and attachments tó 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 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 agreunent the parties Page 3 of5 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 Califomia 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 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 or1aw, 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 X'ees. 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 reaionáble attorney's fees and legal expenses. For the purposes of this Agreement, 'àttorneys, 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 andlor during the course of litigation, whether or not otherwise recoverable as "attomeys' fees" oÍ 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 other 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.r 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. Date: ATTEST: CITY OF FRESNO, a Municipal Corporation Public Works Department Scott L. Mozier, Director By: L. Mozier, Director DEVELOPER FFDA PROPERTIES, LLC. Title: (Attach Notary Acknowledgment(s)) APPROVED AS TO FORM: DEVELOPER ATTORNEY By: Print Name: Title: /-ts-ao/s Yvonne Spence, CMC City Clerk APPROVED AS TO FORM: Douglas Sloan City Att By: Brau¡.r ill. Exhibit A: Construction Costs Print Name: tl/5/þ6 Page 5 of5 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT crv¡L coDE s 1189 State of California County of before me, Date Ì uS fusernipersonally appeared - Name(s) of signe(s) LIANA LEWA Commission # 2078341 i¡otary Publlc - Calitornle Frcsno Cou,nty Place Notary Seal Above Though this section is optional, completing this fraudulent reattachment of this Description of Attached Document Title or Type of Document: Number of Pages: Signe(s) Gapacity(ies) Claimed by Signer(s) to me that he/ executed the same in person or the entity upon behalf of which theperson cted, executed the instrument. I cerlify under PENALW OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS Signature: can deter alteration of the document or to an unintended document. Document Date: Than Named Signer's Name: E Corporate Officer - Title(s): tr Partner - tr Limited tr tr lndividual n Trustee n Other: Signer ls Representing: n Attorney in f] Guardian Conservator Signer's Name: tr Corporate Officer - Title(s): E Paftner - n Limited I General tr lndividual n Attorney in Fact E Trustee tr Other: fl Guardian or Conservator Signer ls Representing: @ 2013 National Notary Association . www,NationalNotary.org . 1-800-US NOTARY (1-800-876-6827) ltem #5907 EXHIBIT A Construction Costs COST ESTIMATE MET PROJECT PUBLIC IMPROVEMENTS CALAVERAS STREEI FULTON STREET AND STANISLAUS STREET ITEM DESCRIPTION QUANTITY S uNrr cosr S ExrENstoN OFF.SITE STREET CONSTRUCTION 7. Mobilization 2. Clearing and Grubbing 3. Traffic Control 4. Excavation and Grading 5. Curb and Gutter 6. Sidewalk 7. Return w/ Ramp 8. Driveway Approach 9. Alley Approach 10. Asphalt Pavement MISCELTANEOUS 1. Adjust P.G.& E. Vaults to Grade Z. Underground Overhead (Calaveras) 3. Street Trees and lrrigation FEES AND CHARGES 92s LF s 8,L10 LF 2EA 1EA 1EA 3,9s0 sF TOTAL STREET CONSTRUCTION 2EA S 30 EA LUMP SUM LUMP SUM LUMP SUM LUMP SUM 14.00 4.50 2,200.00 1,600.00 2,200.oo 7.00 5,000.00 LUMP SUM 250.00 3,000.00 4,000.00 6,000.00 5,000.00 12,950.00 36,495.00 4,400.00 L,600.00 2,200.o0 27,650.00 103,295.00 10,000.00 75,000.00 7,500.00 TOTAr MISCELTANEOUS $92,500.00 Lt,274.OO 3,000.00 10,335.00 9,396.00 34,005.00 103,295.00 92,500.00 34,005.00 1. Project Engineer 2. Soils Engineer 3. Plan Check and lnspection 4. Contract Administration and Supervîsion TOTAT FEES AND CHARGES SUMMARY STREET CONSTRUCTION MISCELLANEOUS FEES AND CHARGES TOTAL OFF-SITE PUBLIC IMPROVEMENT COST TOD FUNDS AVAILABLE FOR PROJECT CITY ADM I N ISTRATIVE COSTS TOTAL REIMBURSABLE COST 229,80O.00 L2t,342.00 (ss,000.00) Page 1 1L6,342.00