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HomeMy WebLinkAboutDerrel's Mini Storage LP - Agreement - 5-19-2022APN No.: 449-130-30 & 449-130-42 PUBLIC WORKS DEPARTMENT Site Plan: P19-00662 CITY OF FRESNO PW File No.: 12686 DEFERRAL AGREEMENT FOR 1800 WEST BELMONT AVENUE This Agreement is made and entered into at Fresno, California, and is effective this / q-1::l:J­ day of May, 2022, by and between the CITY OF FRESNO, a municipal corporation (City) on the one hand, and Derrel's Mini Storage LP, a California Limited Partnership, on the other hand (Owner) RECITALS A. PROJECT DESCRIPTION: Owner is constructing an addition to an existing storage facility on its property located near the intersection of West Belmont Avenue and North Hughes Avenue, at 1800 West Belmont Avenue, Assessor's Parcel Numbers 449-130- 30 & 449-130-42 (Subject Property). B. Owner hereby warrants that any and all parties having record title interest in the Subject Property which may ripen into a fee have subordinated to this instrument. All such instruments of subordination, if any, are attached hereto and made a part of this instrument. C. As a condition of City's approval of such development, Owner is required to construct certain street frontage improvements as described in Paragraph 3 below. D. Owner has requested the City permit occupancy of the development prior to completion of the required improvements and has agreed to provide security as necessary to guarantee the construction of the deferred improvements. E. Fresno Municipal Code Section 13-208(f)(6) allows the Public Works Director to accept specified types of security for future construction of improvements in lieu of completion of the work prior to allowing occupancy. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the agreement by the City to permit and inspect the construction of the street improvements as described in Paragraph 2 below , the parties agree as follows : 1. Recitals. Each and all of the foregoing recitals of background facts are incorporated herein by this reference as though set forth herein verbatim. 2. Deferral. Owner shall perform all work and install all improvements as described in Paragraph 3 below within 12 months of the execution of this Agreement by the City (the Deferral Period). The Public Works Director may require the installation of the deferred improvements prior to the end of the Deferral Period if the continued deferral is deemed to be detrimental to the public safety or welfare. The time for completion may be extended if the Public Works Director determines the granting of such an extension will not be detrimental to the public safety or welfare. No extension will be made except upon 1 written application by Owner and submitted to the City's Public Works Director at least 30 days prior to the expiration of the Deferral Period for performance or any extension thereof stating the reasons and facts supporting such extension. 3. Required Improvements. The work and improvements that Owner shall perform and install are as required by Public Works Conditions of Approval for Conditional Use Permit (CUP) P18-03869, as shown on the approved street and street light plans (Sheet No's: 15-C-18171 through 15-C-18173 and 4-C-1655). The remaining improvements are listed below: a. Street light installation b. Landscaping along West Belmont Avenue and West Dudley Avenue c. Sidewalk improvements 4 . Performance Standards. The performance and installation of the work and improvements shall comply with the latest edition of the standard specifications and drawings of the City at the time of the issuance of a street work permit, including details therewith and amendments thereto. In the event there are no standard specifications of the City for this work and improvements, such performance and installation shall be in accordance with the latest standards and specifications of the State of California, Department of Transportation. Owner shall perform, install and provide all work, improvements and materials under the supervision of the Public Works Director, under whose direction the work shall be inspected as it progresses. 5. Performance Security. At the time of execution of this Agreement, Owner shall furnish to the City Performance Security in the amount of SIXTY THOUSAND DOLLARS ($60,000.00) as approved by the City Engineer. Security will be released only when the work and improvements have been completed, inspected and accepted by the City. If Owner fails to perform and install the work and improvements as specified in this Agreement, the Public Works Director may use this security to install all or a portion of the deferred improvements. Any excess beyond that necessary to complete the improvements will be returned to Owner. The City is not required or obligated by this agreement to construct or complete the improvements. If the City elects to install the improvements, Owner shall be fully responsible for all costs incurred by the City in connection with completion of the improvements . A final accounting of such costs, when confirmed by the Director and recorded in the official records of the County, shall be a lien on the property. If Owner does not pay the costs in full within 30 days after the date the Director mails notice of such costs, interest shall accrue on the unpaid costs at the maximum legal rate from the date the accounting of costs was confirmed. The lien shall not be released until all such costs , including accrued interest, are paid in full, according to terms specified in this Agreement. The remedy provided in this paragraph shall be in addition to and without limitation on any other rights or remedies that may be available to the City, including but not limited to the right to resort to any security submitted by Owner. 6. Attorney 's Fees. As a part of the obligation of Owner, and in addition to any and all security furnished for the performance of this Agreement, the City shall be entitled to costs and reasonable expenses and fees, including reasonable attorney's fees, which may be incurred in successfully enforcing this Agreement against Owner. If either party is required to commence any proceeding or legal action to enforce or interpret any term or condition of this Covenant, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. For the 2 purposes of this agreement, "attorneys' fees" and "legal expenses" include, without limitation, paralegals' 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 California procedure as pertaining to an award of contractual attorneys' fees. 7 . Owner's Expense. All work and improvements shall be done at the sole cost and expense of the Owner. The costs of engineering, inspection, testing, surveying, staking, and all applicable fees as required by Fresno Municipal Code shall be sole responsibility of Owner. 8 . Covenant Running with the Land. It is the intention hereof that this document shall constitute a covenant in favor of the City of Fresno and shall run with the land and be binding upon and inure to the benefit of the undersigned, its grantees, heirs, and successors and assigns. 9. Gender. Whenever the context requires, the neuter shall include the masculine or feminine, or both, and the singular shall include the plural. 10 . Time of the Essence. Time is of the essence of this Agreement. 11 . No Assignment. Owner shall make no assignment of this Agreement or of any duty or obligation of performance hereunder, in whole or in part, without the prior written consent of the City. 12 . Indemnification. To the furthest extent allowed by law, Owner shall indemnify, hold harmless and defend 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, Owner or any other person, and from any and all claims, demands and actions in law or equity (including attorney's 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 in and upon the street rights-of-way and upon the premises adjacent thereto pursuant to this Agreement. Owners obligations under the preceding sentence shall apply regardless of where Owner 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 by the active or sole negligence, or the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Owner should subcontract all or any portion of the services to be performed under this Agreement, Owner shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, and employees, agents and volunteers in accordance with the terms of the preceding paragraphs. This section shall survive termination or expiration of this Agreement. 13 . Insurance. (a) Throughout the life of this Agreement, OWNER or any contractor and/or subcontractor they hire shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California 3 Insurance Commissioner to do business in the State of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or designee at any time and in its sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents, and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, OWNER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve OWNER of its responsibilities under this Agreement. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) The fact that insurance is obtained by OWNER shall not be deemed to release or diminish the liability of OWNER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by OWNER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of OWNER, vendors, suppliers, invitees, contractors, sub­ contractors, subcontractors, or anyone employed directly or indirectly by any of them. Coverage shall be at least as broad as: 1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under "Minimum Limits of Insurance." 2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non­ owned automobiles or other licensed vehicles (Code 1-Any Auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. MINIMUM LIMITS OF INSURANCE 4 OWNER shall procure and maintain for the duration of the contract, and for 5 years thereafter, insurance with limits of liability not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured: 1. COMMERCIAL GENERAL LIABILITY (i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY $1,000,000 per accident for bodily injury and property damage . 3. Workers' Compensation Insurance as required by the State of California with statutory limits and EMPLOYER'S LIABILITY with limits of liability not less than: (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. UMBRELLA OR EXCESS INSURANCE In the event OWNER purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents, and volunteers. DEDUCTIBLES AND SELF-INSURED RETENTIONS OWNER shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and OWNER shall also be responsible for payment of any self­ insured retentions. Any self-insured retentions must be declared on the Certificate of Insurance, and approved by, the CITY'S Risk Manager or designee. At the option of the CITY'S Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such self-insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or (ii) OWNER shall provide a financial guarantee, satisfactory to CITY'S Risk Manager or designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS (i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits 5 except after thirty (30) calendar days written notice has been given to CITY , except ten (10) days for nonpayment of premium. OWNER is also responsible for providing written notice to the CITY under the same terms and conditions . Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, OWNER shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, OWNER shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy. (ii) The Commercial General and Automobile Liability insurance policies shall be written on an occurrence form. (iii) The Commercial General and Automobile Liability insurance policies shall be endorsed to name City, its officers, officials, agents, employees, and volunteers as an additional insured. OWNER shall establish additional insured status for the City and for all ongoing and completed operations under the Commercial General Liability policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20 37. (iv) The Commercial General and Automobile Liability insurance shall contain, or be endorsed to contain, that the OWNERS' insurance shall be primary to and require no contribution from the City. The Commercial General insurance policy is required to include primary and non contributory coverage in favor of the City for both the ongoing and completed operations coverage. These coverages shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. If OWNER maintains higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by OWNER. (v) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) For any claims related to this Agreement, OWNER'S insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, agents, employees, and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, agents, employees and volunteers shall be excess of the OWNER'S insurance and shall not contribute with it. (vii) The Workers' Compensation insurance policy shall contain, or be endorsed to contain, a waiver of subrogation as to CITY, its officers, officials, agents, employees, and volunteers. (viii) The Commercial General and Automobile Liability insurance policies shall contain, or be endorsed to contain, a waiver of subrogation as to CITY, its officers, officials, agents, employees, and volunteers. PROVIDING OF DOCUMENTS -OWNER shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required herein. All certificates and applicable endorsements are to be received and approved by the CITY'S Risk Manager or designee prior to CITY'S execution of the Agreement and before work commences. 6 All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, OWNER shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of OWNER shall also be required to provide all documents noted herein. SUBCONTRACTORS --If OWNER subcontracts any or all of the services to be performed under this Agreement , OWNER shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee . If no Side Agreement is required , OWNER will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required herein . 14 . No ti ces. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally or deposited into the United States mail, with postage prepaid , addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. 15. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way , such ambiguity shall not be resolved by construing this Agreement in favor of, or against any party, but rather by construing the terms in accordance with their generally accepted meaning. 16 . Govern ing Law and Ven ue . This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno, California . 17 . Extent of A g re em ent. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both parties. 18 . Seve ra bi l ity . The provisions of this Deferral Agreement shall be deemed independent and severable and the invalidity or partial invalidity or unenforceability of any one provision or portion thereof shall not affect the validity or enforceability of any one provision thereof. [SIGNATURES APPEAR ON NEXT PAGE.] 7 IN WITNESS WHEREOF, the parties have executed this Amendment at Fresno, California, the day and year first above written. City: Owner: APPROVED AS TO FORM : DOUGLAS T. SLOAN City Attorney By :A~-st______ _ Deputy City Attorney ATTEST: TODD STER City Cl Derrel's Mini Storage L.P., a California Limited Partnership By: Ridenour Corporation, a California Corporation Its General Partner By:~Ro~H~ Derrel A. Ridenour, President 8