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
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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
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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
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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
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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
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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.
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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.]
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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
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