HomeMy WebLinkAboutUp Holdings, LLC - MOU - 3-30-2023MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF FRESNO AND UP HOLDINGS, LLC FOR THE
CONSTRUCTION OF SUSTAINABLE TRANSPORTATION INFRASTRUCTURE AND
TRANSIT RELATED AMENITIES FOR 3787 N BLACKSTONE AVENUE„ FRESNO,
CA 93726
This Memorandum of Understanding (Agreement) is entered into this 3nay of
March, 2023, by and between the City OF FRESNO, a municipal corporation, (City), and
Up Holdings, LLC, (Developer).
RECITALS
WHEREAS, the State of California, the Strategic Growth Council (SGC) and the
Department of Housing and Community Development (HCD) issued a Notice of Funding
Availability dated January 30, 2023 (the AHSC NOFA), under the Affordable Housing and
Sustainable Communities (AHSC) Program established under Division 44, Part 1 of the
Public Resources Code, commencing with Section 75200; and
WHEREAS, Developer is applying for AHSC Funds in response to the AHSC
NOFA to provide funding for (A) construction of the 3787 N Blackstone Avenue
affordable housing project in Fresno, California (the Housing Project); (B) the construction
of certain housing related infrastructure (the HRI Improvements); (C) the construction of
certain sustainable transportation infrastructure (the STI Improvements); (D) the
construction of certain transit related amenities (the TRA Improvements); and (E) certain
costs related to ongoing programming (the AHSC Programs). These improvements are
described in more detail in the Final Application to be submitted by April 4, 2023
(collectively, the AHSC Application); and
WHEREAS, the AHSC Application seeks an award to the Developer in an
aggregate amount of not to exceed $50,000,000 in AHSC Funds, as set forth herein and
in Exhibit A, consisting of: (A) up to $34,250,000of a combination of AHSC loan Funds
for a permanent loan (AHSC Loan) which will be disbursed to a limited partnership to be
formed later (the Partnership), for construction of the Housing Project, and (B) AHSC
grant funds which shall be used for the purpose of reimbursing the cost of the HRI
Improvements; (C) up to $15,000,000 of the AHSC grant funds for the purpose of
reimbursing the cost of the STI and TRA Improvements; and (D) up to $750,000 of AHSC
grant funds for reimbursing the costs of the AHSC Programs. The AHSC grants shall be
referred to collectively as the AHSC Grants. The AHSC Loan and the AHSC Grants are
collectively referred to herein as the AHSC Financing; and
WHEREAS, the City and Developer are required to enter into an Agreement in
order to comply with the specific AHSC Program Threshold Requirement stated the 2023
AHSC Program Guidelines dated December 15, 2022, and subsequent technical
amendments which allows applicants to demonstrate the requisite transportation
experience by using the past experience of work completed of a non -applicant locality so
long as the applicant provides an executed agreement with the non -applicant locality for
the completion of the related work in the AHSC Application for which funding is sought.
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The purpose of this Agreement is to comply with the Transportation City Prior Experience
Threshold Requirement; and
WHEREAS, the City is a non -applicant, but will perform STI Improvements and
TRA Improvements included in the AHSC Application (collectively, the Transit
Obligations) as set forth in this Agreement and in Exhibit A; and
WHEREAS, the City can demonstrate prior experience and provide evidence of at
least two prior projects that are similar in scope and size which have been completed
during the ten years preceding April 4, 2023 as set forth in this Agreement and in Exhibit
B; and
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual covenants herein contained and such other and further
consideration as is hereby acknowledged, the parties agree as follows:
1. PARTICIPATING AGENCIES AND DESIGNATED CONTACT PERSONS
City Representative: Philip Skei
Assistant Director of Planning & Development
Department
2600 Fresno Street
Fresno, CA 93721
(559) 621-8012
Developer Representative: Jessica H. Berzac
Principal
7370 N. Lincoln Ave, Suite A
Lincolnwood, IL 60712
(773) 736-1244
2. ROLES, CONTRIBUTIONS, AND RESPONSIBILITIES
A. Upon full funding of the AHSC Grants, the City, as a non -applicant, will:
(i) Perform up to $15,000,000 worth of STI Improvements and bus stop
upgrades and bus fleet enhancements (TRA Improvements) included in the AHSC
Application (collectively, the Transit Obligations) as set forth in Exhibit A.
(ii) Demonstrate prior experience and provide evidence of at least two projects
that are similar in scope and size which have been completed during the ten years
proceeding April 4, 2023, as set forth in this Exhibit B.
(iii) Assume financial responsibility for developing, constructing, and completing
the Transit Obligations in accordance with the terms of the AHSC documents.
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(iv) Provide Developer with copies of all requisitions for work related to their
respective portions of the project, the notice of completion, and other documents related
to their respective work that another party may reasonably request.
(v) Abide by all requisite HCD grant administration regulations that specify
indemnity, payment, performance schedules, and progress reports.
B. Developer will:
(i) Assume financial responsibility for constructing and developing the Housing
Project, the HRI Improvements and the AHSC Programs (together the Developer
Obligations), and for all costs and expenses related thereto.
(ii) Enter into standard agreements, disbursement agreements, and regulatory
agreements with HCD where Developer will be liable for the full and timely performance
by the parties to complete the obligations set forth therein, including completion of the
Housing Project, HRI, STI and TRA Improvements, and funding of the AHSC Programs,
as described in the AHSC Application. The AHSC Application and all standard
agreements required by HCD in connection with AHSC Financing shall be collectively
referred to as "AHSC Documents."
(iii) Assume financial responsibility for paying all costs required to complete the
Housing Project and all associated improvements including, but not limited to HRI
Improvements, STI Improvements and TRA Improvements, irrespective of whether such
costs exceed the AHSC Loan and AHSC Grant.
(iv) Provide City with copies of all requisitions for work related to their respective
portions of the project, the notice of completion, and other documents related to their
respective work that another party may reasonably request.
(v) Abide by all requisite HCD grant administration regulations that specify
indemnity, payment, performance schedules, and progress reports.
3. EFFECTIVENESS, DURATION AND TERMINATION
This Agreement shall be effective upon its complete execution by the parties' authorized
agents and shall terminate upon the earlier of (i) non -award of AHSC funds; (ii) Non -
appropriation of City funds; (iii) completion of all obligations under the AHSC documents;
or (iv) mutual written agreement of the parties hereto. Either party may terminate this
Agreement with cause upon written notice to the other party, including the Construction
Lender as defined in Section 12, following the other party's failure to reasonably cure an
event of non-performance hereunder following thirty (30) days written notice thereof.
Termination shall be effective (the Effective Date of Termination) as of the date specified
in said notice of termination. Upon such termination, all rights and obligations of each
party under this Agreement shall cease as of the Effective Date of Termination, except
for those specific obligations that shall survive termination as set forth herein.
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4. RECORDKEEPING AND PERFORMANCE DATA
Each party shall keep and maintain proper records and documentation sufficient to
substantiate its contributions hereunder and shall make such available for review and
audit during normal operating hours upon the reasonable written request of the other party
for a period of three years following expiration or earlier termination of this Agreement.
5. COMPLIANCE WITH GOVERNING LAW
Each party shall comply with all federal, state and local laws, rules and regulations in its
pursuit hereof. No party in its performance of this Agreement shall employ discriminatory
practices on the basis of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status, sex, age, sexual orientation,
and ethnicity, status as a disabled veteran or veteran of the Vietnam era.
6. CAPACITY OF CITY AND DEVELOPER
Each party is acting in an independent contractor capacity. Nothing in this Agreement and
nothing in the course of dealings between the parties hereunder shall be deemed to
create any fiduciary relationship, trust, partnership, joint venture, agency or employment
relationship, jointly and severally.
In addition, and without limitation, each party shall be solely responsible for all matters
relating to payment of its employees, including, but not limited to, compliance with
applicable social security withholding, workers' compensation insurance, benefits and all
other regulations governing such matters. Personnel supplied by City will not for any
purpose be considered employees or agents of the Developer. The City assumes full
responsibility for the actions of such personnel while they are performing services
pursuant to this Agreement, and shall be solely responsible for their supervision, daily
direction and control, payment of salary (including withholding of income taxes and social
security), disability benefits and the like, as applicable. Conversely, personnel supplied
by Developer will not for any purpose be considered employees or agents of the City.
Developer assumes full responsibility for the actions of such personnel while they are
performing services pursuant to this Agreement, and shall be solely responsible for their
supervision, daily direction and control, payment of salary (including withholding of
income taxes and social security), disability benefits and the like, as applicable.
The City and Developer agree and acknowledge that their relationship is strictly and solely
that of an independent contractor to each other. The City's employees and/or agents are
not entitled to any employee benefits or insurance, including without limitation any health
care, worker's compensation, unemployment or disability benefits, to be provided by
Developer. Developer agrees and acknowledges that Developer's employees and/or
agents are not entitled to any employee benefits or insurance, including without limitation
any health care, worker's compensation, unemployment or disability benefits, to be
provided by the City.
The parties further agree and acknowledge that each party is solely responsible for
determining the method and means by which it will fulfill its obligations hereunder. Each
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shall be solely responsible for payment of all sales, use, or other taxes assessed against
or associated with the performance of each party's respective obligations or on the
exercise of their rights under this Agreement, including without limitation income, payroll
or employment -related taxes and payments.
Neither party shall engage any person or entity to serve in any capacity, or incur any
expense or obligation on behalf of the other, without the prior written consent of both
parties.
7. INDEMNIFICATION
To the furthest extent allowed by law, Developer 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, Developer or any other person, and from any and all
claims, demands and actions in law or equity (including attorney's fees, litigation
expenses, and costs to enforce this agreement), arising or alleged to have arisen directly
or indirectly out of performance of this Contract. Developer's obligations under the
preceding sentence shall apply regardless of whether City or any of its officers, officials,
employees, agents or volunteers 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 Developer should subcontract all or any portion of the work to be performed
under this Contract, Developer shall require each subcontractor to indemnify, hold
harmless and defend City and each of its officers, officials, employees, agents and
volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. INSURANCE
(a) Throughout the life of this Agreement, Developer 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 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 his/her designee at any time and
in his/her 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, Developer
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, and all
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payments due or that become due to Developer shall be withheld 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
Developer 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 Developer shall not be deemed to
release or diminish the liability of Developer, 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 Developer. Approval or purchase of any insurance contracts or policies shall in no
way relieve from liability nor limit the liability of Developer, vendors, suppliers, invitees,
contractors, sub- contractors, consultants, or anyone employed directly or indirectly by
any of them.
Coverage shall be at least as broad as:
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
Developer shall procure and maintain for the duration of the contract, and for five
(5) years thereafter, insurance with limits of liability not less than those set forth below.
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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:
(i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least
as broad as the most current version of Insurance Services Office (ISO)
Commercial General Liability Coverage Form CG 00 01 and include
insurance 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 of not less than the
following:
$2,000,000 per occurrence for bodily injury and property damage
$2,000,000 per occurrence for personal and advertising injury
$4,000,000 aggregate for products and completed operations
$4,000,000 general aggregate applying separately to work
performed under the Agreement
(ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at as
board as the most current version of Insurance Service Office (ISO)
Business Auto Coverage Form CA 00 01, and include coverage for all
owned, hired, and non -owned automobiles or other licensed vehicles (Code
1-Any Auto) with limits of liability of not less than $1,000,000 per accident
for bodily injury and property damage.
(iii) WORKERS' COMPENSATION insurance as required under the
California Labor Code.
(iv) EMPLOYEE LIABILITY insurance with limits of liability of not less than
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000
diseased each employee.
(v) BUILDERS RISK (Course of Construction) insurance, obtained by the
Developer or subcontractor in an amount equal to the completion value of
the Project with no coinsurance penalty provisions.
(vi) CONTRACTOR POLLUTION LIABILITY with coverage for bodily injury, property
damage or pollution clean-up costs that could result from of pollution condition, both
sudden and gradual. Including a discharge of pollutants brought to the work site, a release
of pre-existing pollutants at the site, or other pollution conditions with limits of liability of
not less than the following:
$1,000,000 per occurrence
$2,000,000 general aggregate per annual policy period
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In the event the work involves any lead -based, mold or asbestos environmental hazard,
either the Automobile Liability insurance policy or the Pollution Liability insurance policy
shall be endorsed to include Transportation Pollution Liability insurance covering
materials to be transported by the DEVELOPER pursuant to the SLFRF Agreement.
In the event the work involves any lead -based environmental hazard (e.g., lead- based
paint), the DEVELOPER's Pollution Liability insurance policy shall be endorsed to include
coverage for lead based environmental hazards. In the event the DEVELOPER involves
any asbestos environmental hazard (e.g., asbestos remediation), the DEVELOPER's
Pollution Liability insurance policy shall be endorsed to include coverage for asbestos
environmental hazards. In the event the SLFRF Agreement involves any mold
environmental hazard (e.g., mold remediation), the Pollution Liability insurance policy
shall be endorsed to include coverage for mold environmental hazards and "microbial
matter including mold" within the definition of "Pollution" under the policy.
In the event the Developer purchases an Umbrella or Excess insurance policy(ies) to
meet the minimum limits of insurance set forth above, 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.
The Developer shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and the Developer shall also be responsible for
payment of any self -insured retentions. Any deductibles or self -insured retentions must
be declared to, and approved by, the City's Risk Manager or his/her designee. At the
option of the City's Risk Manager or his/her designee, either (i) the insurer shall reduce
or eliminate such deductibles or self -insured retentions as respects to the City, its officers,
officials, employees, agents and volunteers; or (ii) the Developer shall provide a financial
guarantee, satisfactory to the City's Risk Manager or his/her designee, guaranteeing
payment of losses and related investigations, claim administration and defense expenses.
At no time shall the City be responsible for the payment of any deductibles or self -insured
retentions.
All policies of insurance required hereunder shall be endorsed to provide that the
coverage shall not be cancelled, non -renewed, reduced in coverage or in limits except
after thirty (30) calendar day written notice has been given to the City. Upon issuance by
the insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in
coverage or in limits, the Developer shall furnish the 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 the City, the Developer 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.
The General Liability, Pollution and Automobile Liability insurance policies shall be written
on an occurrence form. The General Liability, Automobile Liability and Pollution Liability
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insurance policies shall name the City, its officers, officials, agents, employees and
volunteers as an additional insured. All such policies of insurance shall be endorsed so
the Developer's insurance shall be primary and no contribution shall be required of the
City. The coverage shall contain no special limitations on the scope of protection afforded
to the City, its officers, officials, employees, agents and volunteers. If the Developer
maintains higher limits of liability than the minimums shown above. the City requires and
shall be entitled to coverage for the higher limits of liability maintained by the Developer.
The General and Pollution Liability insurance policy shall also name the City, its officers,
officials, agents, employees and volunteers as additional insureds for all ongoing and
completed operations. The Builders Risk (Course of Construction) insurance policy shall
be endorsed to name the City as loss payee. All insurance policies required including the
Workers' Compensation insurance policy shall contain a waiver of subrogation as to the
City, its officers, officials, agents, employees and volunteers.
The Developer shall furnish the City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements are
to be received and approved by the City's Risk Manager or his/her designee before work
commences. Upon request of the City, the Developer shall immediately furnish the 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.
If at any time during the life of the Agreement or any extension, the Developer, its
contractor, or any of its subcontractors fail to maintain any required insurance in full force
and effect, all work under this Agreement shall be discontinued immediately, and all
payments due or that become due to the Developer shall be withheld until notice is
received by the 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 the City. Any
failure to maintain the required insurance shall be sufficient cause for the City to terminate
the Agreement. No action taken by City hereunder shall in any way relieve the Developer
of its responsibilities under the Agreement. The phrase "fail to maintain any required
insurance" shall include, without limitation, notification received by the City that an insurer
has commenced proceedings, or has had proceedings commenced against it, indicating
that the insurer is insolvent.
The fact that insurance is obtained by the Developer shall not be deemed to release or
diminish the liability of the Developer, including, without limitation, liability under the
indemnity provisions of the Agreement. The duty to indemnify the 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 the Developer. Approval or purchase of any insurance contracts or policies shall in no
way relieve from liability nor limit the liability of the Developer, its principals, officers,
agents, employees, persons under the supervision of the Developer, vendors, suppliers,
invitees, consultants, sub -consultants, subcontractors, or anyone employed directly or
indirectly by any of them.
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In the event of a partial or total destruction by the perils insured against of any or all of
the work and/or materials herein provided for at any time prior to the final completion of
the Agreement and the final acceptance by the City of the work or materials to be
performed or supplied thereunder, the Developer shall promptly reconstruct, repair,
replace, or restore all work or materials so destroyed or injured at his/her sole cost and
expense. Nothing herein provided for shall in any way excuse the Developer or his/her
insurance company from the obligation of furnishing all the required materials and
completing the work in full compliance with the terms of the Agreement.
SUBCONTRACTORS - If Developer subcontracts any or all of the services to be
performed under this Agreement, Developer 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, CONTRACTOR will be solely responsible for ensuring that its subcontractors
maintain insurance coverage at levels no less than those required by applicable law and
is customary in the relevant industry.
The DEVELOPER shall furnish the CITY with all certificate(s) and applicable
endorsements effecting coverage required hereunder. All certificates and applicable
endorsements are to be received and approved by the CITY's Risk Manager or his/her
designee before work commences. Upon request of the CITY, the DEVELOPER shall
immediately furnish the 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.
Property Insurance. The Developer shall maintain in full force and effect,
throughout the remaining life of this Agreement, a policy(ies) of property insurance
acceptable to the City, covering the Project premises, with limits reflective of the value of
the Project premises upon issuance of the Certificate of Completion or substantial
completion of the project referenced in this agreement, including fire and Extended
Comprehensive Exposure (ECE) coverage in an amount, form, substance, and quality as
acceptable to the City's Risk Manager. The City shall be added by endorsement as a
loss payee thereon.
9. ATTORNEY'S FEES
If a party is required to commence any proceeding or legal action to enforce or interpret
any term, covenant or condition of this Agreement, the prevailing party in such proceeding
or action shall be entitled to recover from the other party its/their reasonable attorney's
fees and legal expenses.
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10. NOTICES
Any notice required or intended to be given to a parry under the terms of this Agreement
shall be in writing and shall be deemed to be duly delivered the earlier of (a) actual receipt
by personal delivery to the representative (as defined herein), as the case may be, or in
lieu of such personal service, by way of Federal Express, DHL, or other similar courier
addressed to such party at the appropriate address set forth herein, (b) the date of receipt
by facsimile to the City Representative or the Developer Representative, or (c) three
business days after the date of mailing (postage pre- paid return receipt requested). Either
party may change its address for the purpose of this Paragraph by giving written notice
of such change to the other.
11. BINDING
Once this Agreement is signed by all the parties, it shall be binding upon, and shall inure
to the benefit of, the parties, and each parry's respective heirs, successors, assigns,
transferees, agents, servants, employees and representatives. The terms and conditions
of this Agreement, express or implied, exist only for the benefit of the parties to this
Agreement, their respective successors and assigns, and the Construction Lender as set
forth in Section 12. No other person or entity will be deemed to be a third -party beneficiary
of this Agreement.
12. ASSIGNMENT
City hereby acknowledges and approves the assignment by Developer and UP Dakota
LP (the "Partnership") to the Housing Projec:t's senior lender (Construction Lender) of all
their respective right, title and interest in, to and under the Agreement as collateral
security for the Partnership's obligations to Construction Lender under, and in connection
with the Construction Lender's loan to the Partnership. In the event Construction Lender
forecloses upon the Collateral, City hereby agrees that Construction Lender shall have
all of the Developer's rights and interests under the Agreement. Construction Lender is
hereby made an express third -party beneficiary of this Section. There shall be no other
assignment by any party of its rights or obligations under this Agreement without the prior
written approval of the other party. Any attempted assignment by a party, its successors
or assigns, shall be null and void unless approved in writing by the other party.
13. WAIVER
The waiver by any party of a breach by the other of any provision 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 approved by and
signed by all parties to this Agreement. Waiver of any one provision herein shall not be
deemed to be a waiver of any other provision herein.
No action or omission by either party shall constitute a breach of this Agreement unless
the injured party first notifies the other party of the purported breach in writing setting forth
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the alleged breach or default and said party does not cure the same within a reasonable
period of time. The payment of any fee or compensation or performance of any obligation
hereunder by either party shall not constitute a waiver of any breach by the other party or
of any of the rights and remedies which either party may have as a result of such breach.
No waiver by either party of breach of the Agreement shall be implied from any failure by
the other party to take action on account of such breach if such breach persists or is
repeated. Waivers by either party of any covenant, term or condition contained herein
shall not be construed as a waiver of any subsequent breach of the same covenant, term
or condition.
14. GOVERNING LAW AND VENUE
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.
15. HEADINGS
The section headings in this Agreement are for convenience and reference only and shall
not be construed or held in any way to explain, modify or add to the interpretation or
meaning of the provisions of this Agreement.
16. SEVERABILITY
The provisions of this Agreement are severable. The invalidity or unenforceability of any
one provision in this Agreement shall not affect the other provisions.
17. 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 or against any party, but rather by construing the terms in accordance with their
generally accepted meaning.
18. REPRESENTATIONS AND WARRANTIES
Each party hereby represents and warrants to the other party, and agrees, that it has the
full power and authority to enter into this Agreement and perform each of its obligations
hereunder, and it is legally authorized and has obtained all necessary regulatory
approvals for the execution, delivery, and performance of this Agreement.
19. ENTIRE AGREEMENT
It is mutually understood and agreed that the foregoing constitutes the entire
Agreement between the parties. Any modifications or amendments to this Agreement
must be in writing signed by an authorized agent of each party.
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[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS THEREOF, the parties have caused their authorized agents to
execute this Agreement as of the date first set forth above:
CITY OF FRESNO,
a California municipal corporation
By-
Ge anne A. White
Cityrg anager
APPROVED AS TO FORM'
ANDREW JANZ
City Attorney
By-. qt
Kristi M. Costa
Senior Deputy City Attorney
ATTEST
TODD STERMER, MMC
City Clerk
Up Holdings, LLC, an
Illinois LLC, dba Up Holdings
California, LLC
By:
Name: Cullen J Davis
Its: Manager
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By:
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Attachments:
Exhibit A — Scope of Work
Exhibit B — City of Fresno Prior Experience of Similar Projects Completed
14
60031090.1
Responsible
Party
Developer
Typy of Funds
EXHIBIT A
Scope of Work
Amount of
Funds
AHSC Affordable
Housing
Development Loan
and Housing Related
Infrastructure Grant
Developer AHSC Program funds
City of
Fresno
60031090 1
Sustainable
Transportation
Infrastructure (STI)
and Transit Related
Amenities
Not to
exceed
$34,250,000
Not to
exceed
$750,000
Not to
exceed
15, 000, 000
15
Purpose
Construction of
affordable
housing units
and
infrastructure
on and around
housing site
Programs
related to
transit use and
sustainable
transportation
Active
transportation
infrastructure,
electric buses
and transit stop
improvements
Estimated
Date of
Com[)letioi
5 years from
date of AHSC
award
Ongoing for
three years
after the
occupancy of
the project
5 years from
date of AHSC
award
EXHIBIT B
City's Prior Experience of Similar Projects Completed
1. Van Ness / Wishon Class IV Bike Lanes
The City of Fresno recently installed parking protected Class IV bike lanes on Van Ness
Avenue from Alhambra Avenue to Weldon Avenue. A second phase of this project will
be completed in the next few months when higher temperatures allow placing asphalt and
paint. The second phase will construct Class IV and Class II bike lanes on Wishon from
McKinley Avenue to Belmont Avenue. Van Ness and Wishon are adjacent one-way
streets that form a couplet. The completed section is approximately 4,200 feet in length.
The second phase will add 5,300 feet of class IV and class II bike lanes.
Date Completed: March 2023
2. Maple Avenue Class IV Bike Lanes
The City of Fresno installed Class IV bike lanes on Maple Avenue between Gettysburg
Avenue and Shaw Avenue in 2021. This section of Maple is near Fresno State University
and has several multi -family units for student housing. The bike lanes were installed on
both sides of the street. The length of the project is 2,500 feet.
Date Completed: June 2022
3. R Street Class IV Bike Lanes
The City of Fresno installed Class IV bike lanes on R Street from Tulare Avenue to
Ventura Street. The bike lanes were installed on both sides of R Street. The length of
the project is 1,800 feet.
Date Completed: July 2021
4. Ashlan Avenue Sidewalk Installation
The City of Fresno installed eight- to ten -foot wide sidewalks on both sides of Ashlan
Avenue between Effie Street and State Route 41. The project also included installation
of ADA ramps at all of the corners and replacement of several driveways. The project
installed 1,300 feet of new sidewalk.
Date Completed: October 2020
5. Zero Emission Bus Purchases and Bus Stop Improvement Projects
As the transit operator for the City of Fresno, FAX is well-equipped to purchase zero
emission buses and rehabilitate bus stops. FAX has been expanding its zero -emission
fleet to meet the goals set forth in its Zero Emission Bus (ZEB) Rollout Plan, approved
16
600310901
by the Fresno City Council in 2020, which satisfies the state of California's Innovative
Clean Transit (ICT) requirements. To date, FAX has purchased nine (9) battery electric
and two (2) hydrogen fuel cell electric buses. FAX has also completed the charging
infrastructure to allow for up to forty-six (46) battery electric buses to be charged
simultaneously at the Bus Maintenance Yard. FAX's recent experience with bus stop
improvements includes a $32 million Bus Rapid Transit project which covered 54 stops
along Blackstone and Kings Canyon Avenues (completed in 2018), a $2 million project
that covered 19 median island bus stops throughout Fresno (completed in 2020), and a
$4 million project that covered 63 standard bus stops along Shaw and Cedar Avenues
(anticipated for completion by summer 2023). The FAX team is well-equipped to manage
procurements, contracts, and projects associated with purchasing zero emission buses
and completing bus stop improvements.
17
60031090.1
FormLLC-5-5
Secretary of State Jesse White
Deparlment of Business Services
Limited Liability Division
www.cyberdriveillinois.com
Illinois
Limited Liability Company Act
Articles of Organization
Filing Fee:
$500
Expedited Fee:
$100
Approved By:
REH
1. Limited Liability Company Name: UP HOLDINGS, LLC
Pioneer Place 11/7/16
FILE # 04758633
FILED
APR 09 2014
Jesse White
Secretary of State
2. Address of Principal Place of Business where records of the company will be kept:
900 W JACKSON BLVD, SUITE 2W
CHICAGO, IL 60607
3. Articles of Organization effective on the filing date.
4. Registered Agent's Name and Registered Office Address:
HENRY C. KRASNOW
500 N DEARBORN ST STE 200
CHICAGO, IL 60654-3372 COOK
5. Purpose for which the Limited Liability Company is organized:
"The transaction of any or all lawful business for which Limited Liability Companies may be organized under this Act"
6. The LLC is to have perpetual existence.
7. The Limited Liability Company is managed by the manager(s).
DAVIS, CULLEN J.
900 W JACKSON BLVD, STE 2W
CHICAGO, IL 60607
8. Name and Address of Organizer
affirm, under penalties of perjury, having authority to sign hereto, that these Articles of Organization are to the best
of my knowledge and belief, true, correct and complete.
Dated: APRIL 09, 2014 ALEX FLORES
500 N DEARBORN, STE 200
CHICAGO, IL 60654
This document was generated electronically at www.cyberdriveillinois.com
t
°' • Secretary of State LLC-5
Application to Register a Foreign Limited
Liability Company (LLC)
IMPORTANT — Read Instructions before completing this form.
Must be submitted with a current Certificate of Good Standing issued by the
government agency where the LLC was formed. See Instructions.
Filing Fee — $70.00
Copy Fees — First page $1.00; each attachment page $0.50;
Certification Fee - $5.00
N t R t d I I Cs in California ma have to pa minimum $800 tax to the
201 9228 70017
FILED /f
S,aetary of State
State of Califomia
AUG 14 2019
o e. eggs ere y y
California Franchise Tax Board each year. For more information, go
to https://www.ftb.ca.gov. pL This Space For Office Use Only
1 a. LLC Nagle (Enter the exact name of the LLC as listed on your attached Certificate of Good Standing.)
UP HOLDINGS, LLC
1b. California Alternate Name, If Required (see Instructions —Only enter an alternate name if the LLC name in la not available in California.)
UP HOLDINGS CALIFORNIA, LLC
2. LLC History (See Instructions — Ensure that the formation date and jurisdiction match the attached Certificate of Good Standing.)
a. Date LLC was formed in home jurisdiction (MMlDDNYYY) b. Jurisdiction (Stale, foreign country or place where this LLC is formed.)
04 / 09 / 2014 Illinois, USA
c. Authority Statement (Do not alter Authority Statement)
This LLC currently has powers and privileges to conduct business in the state, foreign country or place entered in Item 2b.
3. Business Addresses (Enter the complete business addresses. Items 3a and 3b cannot be a P.O. Box or "in care of an individual or entity.)
a. Street Address of Principal Executive Office - Do not enter a P.O. Box
City (no abbreviations)
Stale
Zip Code
900 W. Jackson Blvd., Suite 2W
Chicago
IL
60607
b. Street Address of Principal Office in California, if any - Do not enter a P.O. Box
City (no abbreviations)
State
Zip Code
CA
c. Mailing Address of Principal Executive Office, if different than Item 3a
City (no abbrevlalions)
State
Zip Code
4. Service of Process (Must provide either Individual OR Corporation.)
I rdnivinl lAl — r`n nIPfP Items 4a and 4h only_ Must include acent's full name and California street address.
a. California Agent's First Name (if agent is not a corporation)
Middle Name
Last Name
Suffix
b. Street Address (if agent Is not a corporation) - Do not enter a P.O. Box
City (no abbrevia(ions)
State
CA
I Zip Code
CORPORATION — Complete Item 4c only. Only include the name of the registered agent Corporation.
c. California Registered Corporate Agent's Name (if agent is a corporation) — Do not complete Item 4a or 4b
COGENCY GLOBAL INC.
5. Read and Si n Below (See 6ructlons. Title not required.)
I am authorized sign on b aif of the foreign LLC.
Signature
Cullen J. Davis
Type or Print Name
LLC-5 (REV 0e/2019) 2019 California Secretary of Slate
bizrile.sos.ca.gov
State of California
Secretary of State
CERTIFICATE OF REGISTRATION
I, ALEX PADILLA, Secretary of State of the State of California, hereby certify:
That on the 14th day of August, 2019- UP HOLDINGS CALIFORNIA, LLC,
complied with the requirements of California law in effect on that date for the purpose of
registering to transact intrastate business in the State of California; and further purports
to be a limited liability company organized and existing under the laws of Delaware as
UP HOLDINGS, LLC and that as of said date said limited liability company became and
now is duly registered and authorized to transact intrastate business in the State of
California, subject, however, to any licensing requirements otherwise imposed by the
laws of this State.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great Seal
of the State of California this day of
August 16, 2019.
00--��Z - �
ALEX PADILLA
Secretary of State
GS
NP-25 (REV 02/2019)