HomeMy WebLinkAboutTriple A Burger Reimbursement AgmtREIMBURSEMENT AGREEMENT FOR CONSTRUCTION
OF PUBLIC IMPROVEMENTS
tE{D
py THIS AGREEMENT FOR CONSTRUCTION OF PUBLIC IMPROVEMENTS
(this "Agreement'}, Is made and entered into this 2911a day of July, 2010. by and between the CITY
OF FRESNO REDEVELOPMENT AGENCY, aPublic Body, Corporate and PNinc, (`Agency')
and Chau Tsang and Sylvia S. Kon, individually and doing business as Triple A Burger
("Developv').
RECITALS
WHEREAS, the Agency has adopted add is responsible for implementing its Southwest
Fresno General Neighborhood Renewal Project Area Plan ( "Plan"),and
WHEREAS, the Plan provides for public improvements including, without limitation,
water. sewer, storm drain. street, and trulAe signal improvements. Constructing these public
improvements will help eliminate blighting inRumxis in the Project Area by doing the
following. Encouraging existing businesses to remain or expand, a0racting new businesses, thus
stimulating employment and enormous growth, and strengthening the economic base of the
Project Area; and
WHEREAS, the Agency is msponsible for and is engaged in redevelopment activities to
carryour the Plan; and
WHEREAS, the Developer is running completion of a new 5,000 umoure foot commercial
building (the "PmjecC). The new commercial building mplaces an over 30 year uld structure
which operated continuously as Triple A Burger serving the Southwest Fresno community The
completion of the Project will provide reconstruction of public improvements on Fresno and 'A'
Street, increase the size of the current'rople A Burger from 750 .quare feel to 1,500 square fen
and will provide four leesahle retail and commercial spaces for new and expanding businesses
seeking space in southwest prison, and
WHEREAS, under the prima ty provided by the Ordinance Code of the City of Fresno,
the City has required Developer to construct certain off-site public improvements
improvements'), as depicted in Exhibit I and hereto and incorporated hereto by this reference,
as part ofthe development of the Project; and
WHEREAS, the Agency desires the Developer to xnnsrucd the Project, and include
within the Project the construction of the Improvements as depicted in Exhbit No. I; and
WHEREAS, the Agency desires to. remb urse the Developer lin the cost of constructing
the Improvements m Culler the elimination of blighting inildenaes in the Project Area; and
NOW, THEREFORE, in consideration of the recitals set forth above, which are herein
mcoryomted by this reference, and Ne mutual covenants and undertakings set forth herein, the
mutual receipt all sufficiency of which is hereby acknowledged, the Agency and the Developer
agree: as follows:
I. The Developer shall construct the Improvements in accordance with all City of
Fusion approved plans, drawings; standards and specifications pursuant to Section 3 and
<; below (the "Improvement Plans").
2. The .Agency shill reimburse the Developer for the can of comaucting the
Improvements for an amount up to but not to exceed the preliminary cost estimates
provided to the Agency. A preliminary cost estimate for improvements eligible for
reimbursement to Developer by Agency is described in Exhibit No. 3, attached hereto
and incoRomted herein by this reference. Final payment to the Developer shall be based
on the Developers actual cash expenditures for the Improvements but will not exceed the
original agreed to Preliminary Estimate set forth in P.xldbit No, 2,
3, Developer understands and agrees that construction of the Improvements is
subject to the prevailing wage requirements contained in California Labor Cade §§ 1720
d seq. It is Developer's sole responsibility to comply with the rquirements of that
section, and with all othnf fdeial, state and local laws.
4. The Agency shall retain the right to pen aiceOy inspect or it deems appropriate
and approve or disapprove the construction of the Improvements prior to the Developer's
final acceptance of the Impmvemenb from the construction contractor. Upon completion
of construction by Developer of the Improvements, and within ten (10) calendar days
after reeeipt of the notification of completion, Agency or its designee shall inspect the
Improvements and (1) accept, in writing, those facilities so constructed which conform in
all material respects to the Improvement Plans, and (it) notify the Developer in writing of
any portion of the Improvements which do not confirm to the Improvement Plans, and
the specific reapeca in which they do not conform. In the event that any of the
fmprovemrnts so constructed do not conform in all material respects to the Improvement
Plms, the Agency shall cause such nonconformity to be corrected, at no additional cost to
the Agency, prior to the Agency's acceptance of these Improvements. If the
nonconformity cannot be corrected within a reasonable time not less than .sixty (60)
calendar days, after receipt of such written notice by the Agency, the Agency may rgmt
the nonconforming Improvements, or may accept them in writing. If the Agency accepts
any such nonconforming Improvements, the reimbursement required pursuant to
Paragraph No 2 hereof may be adjusted as normally determined by the Agency and the
Developer to reflect the reduced value of the accepted nonconforming Improvements.
These Improvements that do not conform to the Improvement Plans and are not accepted
by. the Agency shall not be subject to any reimbursement.
5. Subsequent to Developer's completion of all its obligations hereunder, which
obligations one conditions precedent to all at Agency's rights hereunder, relmbmsement
shall be made to Developer by the Agency for an amount not to entad the Preliminary
Estimate delemseed in Exhibit 2 herein, subject to the presentation to the Agency of a
copy of the Notice of Completion and evidence of construction casts from Developer's
emlractor.
6. To the furthest extent allowed by law, Developer shall indemnify, hold harmless
and defend Agency and each of its officers, officials, employees, agents and volunteers
from any and all loss, liability, lines, penalties, forfeitures, costs and damages (whether in
central, tort or strict liability, including but net limited to personal injury, death at any
time and property damage) incurred by Agency, Developer or my other person, and from
my and all claims, demands and actions in law or equity (including attorney's (. and
litigation expenses), rasing or alleged to have arisen directly or indirectly out of
performance of this Agreement or the construction of any Improvements as described in
Exhibits Nos. I and 2 as attached to this Agreement Developer's obligations under the
preceding sentence shall apply regardless of whether Agency or any of its officers,
officials. employees, agents or volunteers arc passively negligent, but shall not apply to
any loss, liability, fines, penalties, forfeitures, costs or damages caused by the solve or
into negligence, or the willful misconduct. of Agency err my of its officers, officials,
employees, agents or volunteers.
This section shall survive termination orexphationof this Agreement
). Miscellaneous.
(a) Entire Aercernrnt This Agreement (including the Exhibfts hereto) contains
the entire agreement between Agency and Developer in gond to the subject matter
hercrot, and no oral statements or prior writtm documents not specifically incorporated
into this Agreement shall be any fore or effect.
(b) Modifications. This Agreement may be modified only by a written document
executed by both parties moth,
(c) Notice. All notices Topmost or permitted by this Agreement or applicable law
shall be in writing and may be delivered in person (by hand or by courier) or may he sent
by regular, cortifid or registered mail or U.S. Postal Service Express Mail, with postage
prepaid, or by facshnile tranmission, and shall be deemed sufficiently given if served
in a morns specified in this Paragraph (e). The addresses noted below shall be that
party's address for delivery or mailing of notices. Either patty may by written notice to
the other specify a different address for notice. Any notice seat by registered or
certified mail. retain receipt requested, shall be deemed given on the date of delivery
shown on the receipt card, or if no delivery date is shown, two (2) days after the
postmark thereon. If snd by regular mail the notice shall be deemed given forty-eight
(48) hours after the same is addressed as requiml herein and mailed with postage
prepaid. Notices delivered by United States Express Mail or overnight courser that
guarantee next day delivery shall be deemed given twenty-four (24) hours after delivery
Of the same to the Postal Service or courier. Notices automated by facsimile
transmission or similar means shall be deemed delivered upon telephone confirmation
of receipt (confirmation report fiom fax machine is sufficient, provided a copy is also
delivered via delivery or mail. If notice is received after 4:30 p.m. in the time zone in
which Ne pans is located or on a Saturfay, Sunday or legal holiday, it shall be deemed
received on the next business day.
City of Fresno Redevelanment Aeencv
2344 Tulare Street, Suite 200
Fresno. CA 93921
Attn: Marlene Murphy
Fax Number: 559498-1870
Kearney Center — Trlole A Burger
1014 Fresno Street
Fresno, CA 93706
Attn Chau Trang & Sylvia S. Kor
Fax Number. 559-3248758
bh Severability. Ifanypmvisionoft Agreementisheldtobeillegal,invalidar
unenforceable order present or future laws, such prevision shall be fully severable, and
this Agreement shall be construed and enforced as if such illegal, invalid, or
menifierceable provision were not a part herrof, and the remaining positions hereof shall
remain in full force and effect. In lieu of any such illegal, invalid, or uvcnfomeable
provisionherein, there shall he automatically added as a pan of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable.
let Construction. The panics hereto acknowle lge that each party has, or has bad
the opportunity to have, counsel of its 'own choosing review and revise this
Agicrntun, such that the normal rule of ronstmction to the effect that any ambiguities
am to be resolved against the drafting party shall not be employed in the interpretation of
this Agreement or any exhibits or amendments hemp.
Ip Governing Law and Venue. This Agreement shall he governed by, and
evnsuued and enforced in accordance with, the laws of the State ofCaldomia. Venuefor
the purposes of the filing of any action regarding the enforcement or interpretation of this
Agreement and any rights and duties Hereunder. shall be Fresno County. California
(g) WWNVlaiver. No failure or delay by a party to insist on the strict performance of
vry pmviaian of this Agreement or to exercise any right or remedy consequent on a
breach thereof, shall constitute s waiver of any breach or subsequent breach of such
provision. 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 my subsequent breach
or 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 panics ro this Agreement.
Waiver of any one provision herein shall not be deemed to be a waiver of any other
provision herein.
Ihl Assignment, Neither party hereto shall assign this Agreement, or my interest
therein, without the prior written coruerrt ofthe other. Any such attempted assignment in
violation of this Agreement shall be food and void.
(i) End . Onto this Agreement is signed by all prole. it shall be binding
upon, and shall inure to the benefit of. all parties, and each parties" respective hetes,
increasing, effigies. contractors, subcanumams, transferees, agents, smarts, employees,
and representatives.
Q) Attorney's Fees. If either party brings any memn, in law or in equity, to
moves or interpret any prevision of this Agfeemrnt. the prevailing party will be erdlled to
recover from the other party reasonable abortion, s
fees,
court
costs,
and
legal
expenses av
determined by thecourt or tribunal having jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed this 3oMday of L �,2010.
"AGENCY"
REDEVELOPMENT AQFleCY OF
TIRE CITY OF FRESNO
MARLHEV.
Evocative Dvenoe
Doled: 2010
'DEVELOPER'
@nu foody, individually and
dlblu lliplcABurger
Dated'., 2010
L /l�—
NSyl iuV "I mdrmJunlly and
e riplcA Burger
Dnmd: 7/-Z 2- .2010
The RNevelapmcm Aycvcy of tM1e On �f Freme Me Wed flus kCco,mm ginwni to a la ny gram by he
Redevelopment Agency Beard en 9I, / z9 .2010.
ATTEST,
REBECCA E. RLISCH
Ex -officio Cleric
By
Depwy
a� '130 ,2010
APPROVJT NTOFORM'.
TEx-oEx-o "no
BY
yDe�puty!i, Dep hlAloalmt
Dated: _ 7a 71 .2010
Exhibit I.
Description of Improvements
Public improvements including, design, installation and repair of 1950 square feet of curb,
gutter, and sidewalk on Fresno Street ("A- Street to the At ley); 1250 square feet of cub, gutter
and sidewalk on "A" Street (Fresno Street to property Iiae); 2 ADA romps and 2 driveway
approaches
Extrbit 2.
PRELIMINARY COST ESTIMATE FOR
IMPROVEMENTS ELIGIBLE FOR
REIMBURSEMENT TO DEVELOPER BY RDA
Kearney Center -Triple A Burger
1010 Fresno Street
Fresno, California 93706
:O Y O.Y Y Y a[KO:RY Y:lYfaY i Dl. [K�F'LiK
Description
Amount
Removal and now installation of sidewalk on
$19,500.00
Fresno Street appmxmtmely 1950 square feet
Removal and new installation of sidewalk on A
6.300.00
Street approximately 1250 square fret
Removal end installation of wherelcbror tamp m
5,500.00
ADA code
Easement, Engineering and drd dedication for
1,500.00
ramp
Removal 3 existing approaches and installation
15,000.00
of 2 new approaches
Traffic camml
3,200.00
Repair existing curb and grunts
6.000.00
Total Cost
S57,000.00
REPORT TO THE CITY COUNCIL AND THE
REDEVELOPMENT AGENCY BOARD
DATE: July 29, 2010
FROM: Marlene Murphey, Executive Director
BY: Terry Cox, Project Manager
I.
ITEM NO. I :35 P'^ "
MEETING' ]29110
SUBJECT: Recommend the Agency Board approve a reimbursement agreement
between the Redevelopment Agency of the City of Fresno and Trips 'A
Burger for Me construction d public improvements at 1014 Fresno Street.
RECOMMENDATIONS
It is requested that me Agency Board approve a reimbursement agreement between the
Redevelopment Agency of the City of Fresno and Triple IN Burger for the wnstrudico of
public improvements at 1014 Fresno Street within the Southwest Fresno General
Neighborhood Renewal Area (GNRA).
EXECUTIVE SUMMARY
The owners of a Southwest Frrsno business (Triple IN Burger) have requested Agency
assistance with costs his construction d pudic improvements. The required improvements, in
addition to serving the businesses at 1014 Fresno Street. will provide safe walking paths for
the neighboring businesses and residences in Me Kearney Palms area.
The Redevelopment Agency Project Area plan auModzes Me Agency b engage in activities
such as install, construd or reconstruct public improvements to eliminate blight and improve
Me quality of life for residents, visitors and businesses in Me Project Area. The request is
consistent with the Agency's goals and objectives for implementation of the Southwest Fresno
General Neighborhood Renal Area (GNRA).
BACKGROUND
Triple'ABurger is wnently completing construction of a naw commercial building on Fresno
Street across from the Keamey Palms Slopping Center. The awnersroparelors of this
business have owned and operated this Southwest Fresno iron for 16 years_ The iestauraM
dba Triple 'A Burger hiss been in continuous operation st this location over 30 years. This
roe 35 io
0, V1
Repot to city Council eM RWenelopnert Agency BpeN
RehnEuisemem Agreemert—Thple A Burner
Pegs 2
pm*d will double the operating site of the Triple 'A' Burger restaurant, add an additional
3,500 sWare feet of retail space, and replace deteriorated and noncompliant ADA curb,
gutter and sidewalk along Fresno and K streets. The new facility will provide up to 25 new
jobs.
On May 18, 2004 the Agency Board received and adopted the West Fresno Community
Vision that included recommendations for needed infrastructure improvements in Southwest
Fresno General Neighborhood Renewal Area (GNRA). To assist in meeting the set goals, the
Redevelopment Agency continues to budget for and implement the identified needs.
Since the adoption of the vision plan the Agency has completed over $11 million dollars of
infrastructure including the rehabilitation of 125 miles of neighborhood and commercial
alleyways, reconstruction of the Elm Avenue Business Comdor, reconstruction of
Whitesbndge Road, California Avenue reconstruction and widening, realignment and
widening of the new Walnut Avenue, reconstruction of the old Walnut Avenue, and
construction of Tulare Street median islands.
Based on findings on December 14, 2006 by the City of Fresno Planning and Development
Deparment, this project is categorically exempt under section 15332/Class32 of the Cali(omia
Environmental Ad (CERA).
The preliminary cost estimate for the improvements eligible for reimbursement to Ne
developer is $57,000. Funding for the reimbursement is included the Agency's approved FV
10/11 annual butlget. Payment to Na developer will be based on the submittal and approval
of the actual cash expenditures but will not exceed the original cost estimate.
At their regularly scheduled meeting of July 28, 2010, the HCDC Commission considered this
Item.
Attachment 1: Reimbursement Agreement
Attachment 2: CatWonrel Exemption Environmental Assessment