HomeMy WebLinkAboutFFDA Properties-Measure C Transit-Oriented Development funding for the Met Block Project Off-Site Improvementsr )"'
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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
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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
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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
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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.
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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
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