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HomeMy WebLinkAboutFFDA Properties-Measure C Transit-Oriented Development funding for the Met Block Project Off-Site Improvementsr )"' d li llllr'lJ- MEASURE "C'' TRANSIT-ORIENTED DEVELOPMENT PROGRAM INF'RASTRUCTURE PROJECT REIMBURSEMENT AGREEMENT (oFF -SrTE IMPROVEMENTS) 2015, between the City of Fresno, a Califomia municipal corporation ("City') and FFDA PROPERTIES LLC, a califomia Limited Liability company ("Developer"). RECITALS WHEREAS, on February 27,2014, the Fresno City Council ("Council') adopted Resolution No. 2014-37 authorizing staff to apply for Measure "CÐ Transit-Oriented Development (TOD) funding for the Met Block Project Off-Site Improvements ("Project"); and WHEREAS, the application was approved for funding through the TOD program procedures established by the Fresno Council of Govemments ("COG") and Fresno County Transportation Authority ("FCTA"); and WHEREAS, the City and FCTA have entered into a cooperative agreement for the Project, as executed on October 28,2075; and WHEREAS, the City conditioned approval of Conditional Use Permit Application No, C-13-137 and Vesting Tentative Tract Maps 6059 and 6060, on developer construction of off- site improvements abutting the project site on Calaveras, Fulton and Stanislaus Streets as per Public Works Standards; and WHEREAS, City applied the same condition of approval on Vesting Tentative Tract Map No, 6059 and 6060 Conditions of Approval "General Conditions" 27, (as incorporated); and WHEREAS, the costs of constructing the improvements required by Condition of Approval for Conditional Use Permit No. C-13-137 and Conditions of Approval for Vesting Tentative Tract Map Nos. 6059 and 6060, Condition 27 which required the developer tó construct ofÊsite improvements abutting the project site, on Calaveras, Fulton and Stanislaus Streets as per Public Works Standards ("Improvements"), will be reimbursed in accordance with this Agreement; and WHEREAS, City and Developer now wish to set forth the obligations of the Developer associated with the Improvements and the conditions for reimbursement of the Developer for such work. AGREEMENT In consideration of the foregoing recitals and the obligations undertaken by the pafties as hereinafter set fofth, the parties agree as follows: 1 , Oblieations of the Developcr -o.- ^at a-ul oCTO[ÈtL C)Oø É-=O_ O Page I of5 Ll Developer shall construct the Improvements, which will be installed and accepted by the City upon completion. 1.2 This Agreement is intended to define the City's obligation to reimburse the Developer for the cost of constructing the Improvements, subject to the terms and limitations set forth in this Agreement. Nothing in this Agreement shall alter or waive any obligations or duties of the Developer to comply with existing City ordinances, policies, procedures, plans and specifications related to the construction of the Improvements, including any requirements to obtain approval of construction plans or obtain necessary building, street-work, encroachment or other permits or to comply with any requirements or conditions placed on the issuance of those permits (e.g. insurance, improvement security, etc.). Nothing in this Agreement shall alter or waive any Condition of Approval or requirement for Conditional Use Permit No. C-13-137 and Vesting Tentative Tract Map Nos. 6059 and 6060, 1.3 As City is reimbursing Developer for the Eligible Costs of Actual Construction (ECAC), the Improvement is a "Public Work" as dehned by Califomia Labor Code, Section 1720(a). Developer agrees and warrants that, to the extent required by law, it will (a) pay, and will cause its contractors and subcontractors to pay, prevailing wages for the construction of the Improvement and (b) comply with the other applicable provisions of Labor Code, section 1720 et seq., and implement regulations of the Department of lndustrial Relations, necessary to determine that prevailing wages have been paid as required by law. During the construction of the Improvement, Developer will, or will cause its contractor, to post at the Project area the applicable prevailing rates of per diem wages. Developer shall indemnify, hold harmless and defend (with legal counsel reasonably acceptable to the City) the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Developer, its contractors and subcontractors) to pay prevailing wages as required by law or to comply with the other applicable provisions of Labor Code sections 1720 et seq., and/or the implementing regulations of the Department of Industrial Relations in connection with construction of the Improvement. 1.4 Developer shall maintain written documentation evidencing the ECAC Costs the Developer incurred in constructing the Improvement for submittal to the City at the time Developer seeks reimbursement for the eligible costs of constructing the Improvement. Developer's failure to provide the necessary documentation evidencing certain eligible construction costs will result in the City not reimbursing the Developer for those otherwise eligible construction costs. Acceptable documentation of ECAC includes invoices for construction materials used to construct the lmprovement and invoices from contractors and subcontractors clearly identifying the labor and materials expended to construct the Improvement. 1.5 Developer shall submit to City's Department of Public Works - Construction Management Division all documentation evidencing the eligible costs of constructing the Improvements. If the Developer fails to subrnit the documentation evidencing the eligible construction costs, City shall have the option of refusing to reimburse Developer for any of the otherwise eligible costs of construction, 1,6 Developer shall not assert or be entitled to a fee credit or offset toward a UGM or development impact fee from City for any portion of the Improvements for which reimbursement was paid under this Agreement. 1,7 To the furthest extent allowed by law, including California Civil Code section 2782, Dcvclopel shall indemnify, hold hannless and defend (with legal counsel reasonably acceptable to the City) City and each of its officers, offrcials, employees, agents and volunteers Page 2 of 5 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 injur¡ 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 attomey's fees and litigatìon expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement or the performance of any work done by Developer or its contractors, subcontractors, agents, successors and assigns pursuant to this Agreement. Developer's obligations under the preceding sentence shall apply regardless of whether City 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 solely by the active negligence, or the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. 2. Citv's Obliqations 2,1 The Engineer's Estimate of the ECAC (including an allocation for Eligible Professional Services) of constructing the Improvement is $113,457. An itemization of the individual Eligible Construction Costs is attached hereto as Exhibit "4." Upon Developer's compliance with Section 1.5 to the reasonable satisfaction of the Director of the Department of Public Works ("Director"), and upon confirmation of the ECAC, the City shall reimburse the Developer for ECAC up to, but not more than, the amount of the Engineer's Estimate.2.2 Subject to staffing limitations, City shall use its best efforts to review the documentation of eligible construction costs and, if the documentation is determined to be sufficient, issue the reimbursement within 30 days of receiving from Developer all of the documentation of eligible construction costs required by City. If Developer has submitted documentation prior to the execution of this Agreement, no obligation to issue a reimbursement shall arise prior to 30 days from the date of the last Party to execute this Agreement. 3, Additional Terms 3.1 Binding upon Successors. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their predecessors; successors; assigns; past, present, or future affiliated and related entities; offtcers; members; agents; employees; and representatives,3.2 Integration. This Agreement constitutes the complete and final agreement of the parties with respect to the subject matters referred to in this Agreement. This Agreement supersedes all prior or contemporaneous negotiations, promises, covenants, agreements, and representations of every nature whatsoever with respect to the subject matters referred to in this Agreement, all of which have become merged and finally integrated into this Agreement.3.3 Incorporation of Attachments, All recitals and attachments to this Agreement, including all Exhibit(s) referenced herein, and all subparts thereto, are incorporated herein by this reference. 3.4 Modification. Any modification of this Agreement must be in writing and signed by all parties. No oral modifications shall be effective to vary or alter the terms of this Agrecment. 3.5 No A.ssignment. No assignment of this Agreement or of any duty or obligation of perfonnance hereunder shall be made in whole ol in paft by Developer without the written consent of City. 3.6 Ambiguities or Uncertaínties, Any ambiguities or uncertainties herein shall bc equally and fairly interpreted and construed without reference to the identity of the Party or Paúies preparing this Agreement, on the express undelstanding and agreement the Parties Page 3 of5 participated equally in the negotiation and preparation of the Agreement, or have had equal opportunity to do so. Accordingly, the Parties hereby waive the benefit of California Civil Code $1654 and any successor or amended statute, providing that in cases of uncertainty, language of a contract should be interpreted most strongly against the Party who caused the uncertainty to exist. 3.7 Severability. If any provision or any part of any provision of this Agreement shall, for any reason, be held invalid, unenforceable, or contrary to public policy or law, the remainder of this Agreement shall not be affected thereby, and shall continue to be value and enforceable. 3.8 Counterparts. This Agreement may be executed in counterparts, including true and accurate copies of the original, all of which, when taken together, shall be deemed one original agreement. Any executed copy shall not be binding upon any party until all parties have duly executed a copy of this Agreement. 3.9 Attorneys Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term or condition of this Agreement the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attomey's fees and legal expenses, For the 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 incurrecl by the prevailing party's attomeys 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 Califomia procedure as pertaining to an award of contractual attorneys' fees, 3.10 Waiver of Terms, The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of 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 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. Page 4 of5 The parties have executed this Agreement on the day and year first above written, CITY OF FRESNO, a Municipal Corporation Public Works Department Scott L. Mozier, Director Date: ATTEST: Yvonne Spence, CMC City Clerk City By: By: 5 APPROVED AS TO FORM: Douglas Sloan Date: Exhibit A: Engineer's Estimate of Construction Costs DEVELOPER FFDA PROPERTIES LLC (Attach Notary Acknowledgment(s)) APPROVED AS TO FORM: DEVELOPER ATTORNEY By: Print Title: L. Mozier, Director Title: ?ç¿siÀc-n{- Page 5 of5 EXHIBIT A Construction Costs COST ESTIMATE MET PROJECT PUBLIC IMPROVEMENTS CALAVERAS STREET, FULTON STREETAND STANISLAUS STREET ITEM DESCRIPTION QUANTITY $ ururr cosr S rxrerusrorrl OFF-SITE STREET CONSTRUCTION L. Mobilization 2. Clearing and Grubbing 3. Traffic Control 4. Excavation and Grading 5. Curb and Gutter 6. Sidewalk 7. Return w/ Ramp 8. Driveway Approach 9. Alley Approach 10. Asphalt Pavement s2s LF s 8,110 LF 2EA 1EA 1EA 3,950 SF TOTAL STREET CONSTRU CTION 2EA S 30 EA LUMP SUM LUMP SUM LUMP SUM LUMP SUM 14.00 4.50 2,200.00 1,600.00 2,200,00 7.OO s3,000.00 S+,ooo.oo s6,ooo.oo S5,ooo.oo $tz,sso.oo S36,49s.00 S4,4oo.oo s1,600.00 $2,2oo.oo s27,650.00 S103,295.00 Slo,ooo.oo S75,ooo.oo S7,5oo.oo 5,000.00 LUMP SUM 250.00 MISCELTANEOUS 1. Adjust P,G.& E. Vaults to Grade 2. Underground Overhead (Calaveras) 3. Street Trees and lrrigation FEES AND CHARGES 1. Project Engineer 2. Soils Engineer 3. Plan Check and lnspection 4. Contract Administration and Supervision TOTAT MISCELLANEOUS $92,500.00 5LL,274.00 $3,ooo.oo S10,335.00 S9,395.00 S34,oo4.oo s103,295,00 s92,500.00 S34,oo4.oo TOTAT FEES AND CHARGES SUMMARY STREET CONSThUCTION MISCELLANEOUS FEES AND CHARGES TOTAL OFF-SITE PUBLIC IMPROVEMENT COST FUNDS PREVIOUSLY ALLOCATED TO PROJECT TOD FUNDS AVAILABLE FOR PROJECT clTY ADM I N ISTRAT|VE CHARG E ( pREVtOUSLy DE DUCTED) TOTAL REIMBURSABLE COST $zzs,zss.oo t2t,342,00 s108,457,00 Ss,ooo.oo $113,457.00 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMEI{T crvrl coDE s 1189 A notary public or other officer completing this ceftificate verifies only the identity of the individual who signed the document to which this ceftificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of F'-t- -<-rn l: on q-q'l-< before Date personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my Signature Place Notary SealAbove OPTIONAL Though thls secfion is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document:Document Date: Number of Pages: Signe(s) Other Than Named Above: Capacity(ies) Glaimed by Signer(s) Signer's Name:Signer's Name: n Corporate Officer - Title(s):n Corporate Officer - Title(s): Name(s) of Signe(s) Signature of Notary Public n Padner - n Limited ! General tr lndividual tr Attorney in Fact E Trustee X Other: I Guardian or Conservator n Partner - tr Limited [] General n lndividual n Attorney in Fact tr Trustee X Other: n Guardian or Conservator Signer ls Representing:Signer ls Representing: @2014 National Notary Association . www.NationalNotary.org . 1-800-US NOTARY (1-800-876-6827) ltem #5907