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HomeMy WebLinkAboutCity of Fresno and Governor's Office of Business & Economic Development Grant Agreement 9-21-23 GOVERNOR'S OFFICE OF BUSINESS AND ECONOMIC DEVELOPMENT AND CITY OF FRESNO ECONOMIC DEVELOPMENT GRANT AGREEMENT This Governor's Office of Business and Economic Development and City of Fresno Grant Agreement (hereinafter referred to as the "AGREEMENT") dated September 21, 2023, is entered into by and between City of Fresno (hereinafter "RECIPIENT"), a municipal corporation, and the California Governor's Office of Business and Economic Development (hereinafter, "GO-Biz"), hereafter jointly referred to as the "parties" or individually as the "party." A. WHEREAS, GO-Biz Is the sponsor of this award issued to the RECIPIENT under Agreement Number LGBSF-COF-2023 ("Award"); B. WHEREAS, RECIPIENT is to build upon current investments from federal and state program investments to further economic development opportunities in the downtown area of the City of Fresno; C. WHEREAS, all parties acknowledge that this AGREEMENT and the Award are only available to the City of Fresno; D. WHEREAS, GO-Biz desires RECIPIENT to perform and/or manage services as specified in Exhibit A("Project Scope & Budget") and intends to compensate RECIPIENT for such services; E. WHEREAS, RECIPIENT desires to perform and/or manage such services as described and to be compensated as set forth in Exhibit A, and F. WHEREAS, in undertaking the performance of this AGREEMENT, RECIPIENT represents that it is knowledgeable in its field and that any services performed/and or managed by RECIPIENT will be performed in compliance with this AGREEMENT and any attachments thereto; NOW, THEREFORE, in consideration of the mutual and representative promises and subject to the terms and conditions set forth herein, the parties agree as follows: 1. Recitals. The parties acknowledge and agree that the recitals are true and accurate and are hereby incorporated by reference into this AGREEMENT. 2. Performance Metrics and Timeline. RECIPIENT shall be responsible for the results and progress described in Project Scope & Budget, which is attached and incorporated as Exhibit A. 3. Term of Agreement. The period of performance of this AGREEMENT shall be from September 21, 2023 — June 30, 2024 (Term). The Term of this AGREEMENT and the provisions herein may be mutually extended by the Parties to cover any time during which RECIPIENT continues work on the Project Scope set forth in Exhibit A or while RECIPIENT remains in control of any Compensation as set forth in this Agreement. 4. Compensation. The RECIPIENT is entitled to Fifty Million Dollars ($50,000,000) (Compensation) as authorized in the California 2023-24 Governor's Budget for the period as shown in Exhibit A, which is attached hereto and incorporated by reference. 5. Payment. GO-Biz shall pay RECIPIENT Fifty Million Dollars ($50,000,000)within forty- five (45) days of the date AGREEMENT is signed by both parties. 6. Delivery. All reporting requirements as required under this AGREEMENT and as set forth in Exhibit A must be completed and delivered to GO-Biz on or within thirty (30) days of June 30, 2024. 7. Allowable Costs and Fees. Allowable costs and fees eligible to the RECIPIENT for performance of this AGREEMENT must be in accordance with the budget outlined in the AGREEMENT, including the attached Exhibit A. 8. Termination of Agreement. Either party may terminate this AGREEMENT upon thirty (30) days advance written notice to the other party. RECIPIENT agrees to complete services and/or provide required deliverables through the date of termination. GO-Biz agrees to compensate RECIPIENT for all allowable costs and eligible expenses incurred through the date of termination. Upon such termination, all rights and obligations of each party under this AGREEMENT shall cease, except for those specific obligations that shall survive termination as set forth herein. 9. Modification or Waiver. No part of this AGREEMENT shall be modified without the express written consent of both parties. The waiver by one party of any breach of any term or condition of this AGREEMENT shall not be construed as a waiver of any similar or other breach of any term or condition of this AGREEMENT. Nor shall said waiver be construed as a continuing waiver of the original breach. 10. Assignment. No part of this AGREEMENT may be assigned by either party without the prior written consent of both parties. 11. Indemnification/Warranty Disclaimer/Limitation of Liability. RECIPIENT shall defend, indemnify and hold GO-Biz and the State of California, its agents or assigns, harmless from and against all claims, damages, and liabilities (including reasonable attorneys' fees) arising from RECIPIENT'S or its agents' or assigns' willful misconduct or gross negligence in connection with this AGREEMENT. UNDER NO CIRCUMSTANCES WILL THE STATE OF CALIFORNIA, GO-BIZ, ITS AGENTS OR EMPLOYEES, OR ANYONE ELSE INVOLVED IN THIS AGREEMENT BE LIABLE TO RECIPIENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT ARISE FROM THIS AGREEMENT, UNLESS GO-BIZ ENGAGES IN WILLFUL MISCONDUCT OR IS GROSSLY NEGLIGENT IN CONNECTION WITH THIS AGREEMENT. 12. Force Majeure. If by reason of force majeure the RECIPIENT's performance hereunder is delayed, hampered or prevented, then the performance by the RECIPIENT may be extended for the amount of time of such delay or prevention. The term "Force Majeure shall mean any fire, flood, earthquake, or public disaster, strike, labor dispute or unrest; embargo, riot, war, insurrection or civil unrest; any act of God; any act of legally constituted authority; or any other cause beyond RECIPIENT's control which would excuse the RECIPIENT's performance as a matter of law. 13. Notice of Force Majeure. RECIPIENT agrees to give GO-Biz written notice of an event of Force Majeure under this Paragraph within ten (10) days of the commencement of such event and within ten (10) days after the termination of such event, unless the Force Majeure prohibits RECIPIENT from reasonably giving notice within this period, in which case, RECIPIENT will give such notice at the earliest possible time following the Force Majeure. 14. Public Records. RECIPIENT acknowledges that GO-Biz is subject to the California Public Records Act (PRA) (Government Code section 7920.000 et. seq.). This AGREEMENT and materials submitted by RECIPIENT to GO-Biz may be subject to a PRA request, except in the event that such documents submitted to GO-Biz are considered confidential information and exempt under the PRA. In the event records of the RECIPIENT are requested through a PRA, GO-Biz will notify the RECIPIENT, as soon as practicable that a PRA request for the RECIPIENT's information has been received, but not less than five (5) business days prior to the release of the requested information to allow the RECIPIENT to seek an injunction. GO-Biz will work in good faith with the RECIPIENT to protect the information to the extent an exemption is provided by law. 15. Nondiscrimination. RECIPIENT shall comply with all applicable federal and state laws and statutes related to nondiscrimination, including those acts and amendments prohibiting discrimination on the basis of race, color, national origin, gender, handicap or disability, sexual preference, drug addiction and alcoholism. 16. Retention of Records. RECIPIENT agrees to maintain and preserve all records relative to this AGREEMENT for three (3) years after termination. RECIPIENT agrees to permit GO-Biz's duly authorized representatives to have access to and to examine and audit any pertinent books, documents, papers, and records related to this AGREEMENT. 17. Audit. RECIPIENT, will retain possession and control of the applications and materials submitted to the RECIPIENT and will make them available immediately to GO- Biz for inspection and audit upon request so that GO-Biz can verify that RECIPIENT has complied with the grant program's terms and conditions, and has executed the contracts and effectuated the program consistent with the statutory goals of the program 18. Severability. Should any part, term, or provision of this AGREEMENT be declared or determined by any court or other tribunal or appropriate jurisdiction to be invalid or unenforceable, any such invalid or unenforceable part, term, or provision shall be deemed stricken and severed from this AGREEMENT. Any and all of the other terms of this AGREEMENT shall remain in full force and effect. 19. Applicable Law. This AGREEMENT will be governed, construed, and enforced according to the laws of the State of California without regard to its conflict of laws rules. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of any state court located within Sacramento County, State of California in connection with any matter arising out of this Agreement or the transactions contemplated under this Agreement. 20. 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. 21. Precedence of Documents. In the event of any conflict between the body of this AGREEMENT and any exhibit/attachment hereto, the terms and conditions of the body of this AGREEMENT shall control and take precedence over terms and conditions expressed within the exhibit/attachment. Furthermore, any terms or conditions contained within any exhibit/attachment hereto which purport to modify the allocation of responsibility or liability between the parties, provided for within the body of this Agreement, shall be null and void. 22. Interpretation. Each party has had the opportunity to seek the advice of counsel or has refused to seek the advice of counsel. Each party and its counsel, if appropriate, have participated fully in the review and revision of this AGREEMENT. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this AGREEMENT. The language in this AGREEMENT shall be interpreted as to its fair meaning and not strictly for or against any party. 23. Days. Any reference to days in this AGREEMENT, unless specifically stated to be business days (which shall be Monday through Friday and shall not include weekends or state holidays), shall mean calendar days. 24. Notices.Any notices required or permitted to be given under this AGREEMENT shall be given in writing and shall be delivered (a) in person, (b) by certified mail, or (c) by commercial overnight courier that guarantees next day delivery and provides a receipt, and such notices shall be addressed as set forth below, or as the applicable party shall specify to the other party in writing. For GO-Biz- Administrative Chief Deputy Director California Governor's Office of Business and Economic Development (GO-Biz) 1325 J Street, 18th Floor Sacramento, CA 95814 Telephone: (916) 322-0694 For RECIPIENT: Administrative Chief of Staff City of Fresno, Mayor's Office 2600 Fresno Street Fresno, CA 93721 Telephone: (559) 621-8000 25. Representation on Authority of Parties/Signatories. Each person signing this AGREEMENT represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this AGREEMENT. Each Party represents and warrants to the other that the execution and delivery of the AGREEMENT and the performance of such Party's obligations hereunder have been duly authorized and that the AGREEMENT is a valid and legal agreement binding on such Party and enforceable in accordance with its terms. 26. Counterparts. This AGREEMENT may be executed in counterparts, each of which when executed and delivered will be deemed an original, and all of which together will constitute one instrument. The execution of this AGREEMENT by any party hereto will not become effective until counterparts hereof have been executed by all parties hereto. 27. Entire Agreement. This AGREEMENT, including any referenced attachments, appendices and references, constitutes the entire AGREEMENT and supersedes any other written or oral representations, statements negotiations, or agreements. IN WITNESS THEREOF, the parties have executed this AGREEMENT on the date noted below. CITY OF FRESNO, California Governor's Office of Business A Californi unici i cor oration and Eco is D veld ment (GO-Biz), By By: y Geor a ne A. White, +hris Dombrowski, City a ger Chief Deputy Director California Governor's Office of Business and Economic APPROVED AS TO FORM: Development (GO-Biz) ANDREW JANZ City Attorney By: Q PaAva"a� Tracy N. rvanian Date Supervising Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk r By: Date Deputy Attachment: Exhibit A Exhibit A PROGRAM SCOPE: The City of Fresno (City) has been appropriated $50 million from the 2023-24 budget cycle to support the City's public infrastructure. Consistent with the Governor's 2023-24 May Revision proposal, it is the intent of the Legislature to appropriate an additional $100 million in the 2024- 25 fiscal year, and an additional $100 million in 2025-26, for a total of$250 million provided to the City over three years. Because the total project requires $250 million for completion, this exhibit outlines the Funding Pillars for the full $250 million, but the Project Budget defines the scope for the 2023-24 year,utilizing$50 million awarded by the Governor's Office of Business and Economic Development(GO-Biz). As envisioned by the City, and consistent with locally adopted land use plans and regulations and in coordination with the High-Speed Rail Authority and other private and public property owners/developers, this investment will ensure the necessary infrastructure supports the development of mixed income, mixed use housing and development near transit and high-quality public amenities and public spaces. The City aims to leverage this investment to spur private and additional public sector investment and grow from approximately 3,000 residents, to more than 10,000 living in the downtown core. The City will utilize the full $250 million to initiate the Downtown Fresno Public Infrastructure Plan by making infrastructure improvements in the categories outlined below: Downtown FresnoPublic Plan I Funding Green Streets and Intermodal Water Waste Storm Catalytic Parking Space Sidewalks Center Distribution Water Water Development Structures Objectives for year one of the three-year public infrastructure plan aim to create noticeable progress and generate enthusiasm for subsequent phases. Year one is heavily weighted in pre- construction tasks necessary to begin construction. During 2023-24, the City anticipates ongoing collaboration with stakeholders as we embark on this transformative journey for Downtown Fresno, including Chinatown. While significant community engagement, Specific Planning, and Neighborhood Community Planning has already occurred through various City and community efforts, it is best practice, especially post- pandemic, to reengage stakeholders, complete design — market - and economic assessments, refresh community asset mapping, and provide opportunities for engagement surrounding the City's public infrastructure improvements. Upon the full execution of this AGREEMENT, the City will begin procurement of this comprehensive series of plans, studies, and community engagement as part of an action plan/community investment plan. The City of Fresno will procure technical assistance from a multi-disciplinary team with expertise in large-scale, inclusive urban renewal efforts and implementation. Because the procurement process has not yet occurred, estimated expenses are included in the line-item budget detail for 2023-24. As part of this comprehensive outreach and planning effort, the Downtown Fresno Public Infrastructure Plan, representing a significant commitment to downtown revitalization, will also be enhanced. By March 30, 2024,the City of Fresno will provide a scope of work for the full $250 million included in the Downtown Fresno Public Infrastructure Plan. The Plan will include input from property owners, small businesses, community partners, developers, and recipients of federal or state funds related to economic development and infrastructure projects in and around the Downtown Fresno Public Infrastructure Plan area, High-Speed Rail Station Area and related to the multiple investments by state and federal authorities. This Plan will demonstrate how the $250 million investment will leverage and expand upon other public and private investments, provide a commitment to inclusive and equitable development and provide detailed information as to the proposed outcomes associated with this investment, including potential job creation, mix of housing units, number of housing units, and other pertinent information illustrative of the investment's impact in relation to other state and federal investments. REPORTING: uarterl : To ensure transparency and accountability, the City will provide quarterly updates to GO-Biz throughout the term of this agreement. Reports will include expenditure breakdowns, project progress, and covered services and activities. Annual: The City will also provide a more comprehensive annual report through June 30. Due Dates: Reports will be due to GO-Biz 30 days after applicable dates below: ■ July 1-September 30 ■ October 1—December 31 ■ January 1—March 31 • April 1—June 30 2023-24 BUDGET: To ensure timely execution of project construction awards, multiple consultant service agreements will be required. — The Department of Public Utilities and Capital Projects Department will focus on water distribution and wastewater facilities. — The Department of Public Works and Capital Projects Department with input from the Transportation Department will focus on green space, streets and sidewalks, intermodal center, storm water, and parking structures. — The Economic Development Department, Planning Department, and Mayor's Office will coordinate additional catalytic development to be implemented by various departments. Pre-Construction: Projected pre-construction line-item budget detail is estimated below and includes topographic surveying, utility investigation, geotechnical investigation, engineering services for preparation of plans, permitting, specifications, and bid documents, project bidding, contract awards, site selection efforts, site acquisition, legal, administration, and appropriate environmental review. Downtown Fresno Infrastructure funds may require adjustments between line-items as pre- construction work progresses. Reporting will be provided as outlined below: DESCRIPTION(2023-24) AMOUNT Project Management Oversight $1,250,000 Pre-Construction/Design/Site Acquisition $17,000,000 Green Space Streets and Sidewalks Intermodal Center Water Distribution Wastewater Stormwater Catalytic Development Parking Structure(s) Construction/Capital Improvements/Material/Design Build $31,400,000 Green Space Streets and Sidewalks Intermodal Center Water Distribution Wastewater Stormwater Catalytic Development Parking Structure(s) Fulton Corridor Activation&Community Investment Plan and Fresno Public $350,000 Infrastructure Plan: Business&Community Engagement/Reassessment Total Budget $50,000,000