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CC 2013-05-14_08.f. Agreement for Improvements to 1172 East Grand Ave•- -- • MAI 111,fAM 21 • 9T r C •11111;10 1071-19 Lei N It is recommended the City Council approve an Agreement to pay for improvements adjacent to 1172 East Grand Avenue with Orrin Cocks IMPACT ON FINANCIAL AND PERSONNEL RESOURCES: There are no fiscal impacts at this time. All costs associated with the design, construction and administration of the improvements will be borne by the applicant. BACKGROUND: On November 21, 2012, the City Council considered Orrin Cock's proposal for the construction of right -of -way improvements adjacent to his property at 1172 East Grand Avenue (see Attachment No. 1). The project scope of work involves the installation of a concrete bulb -out adjacent to the existing sidewalk in the westbound direction approximately 150 LF from the Brisco Road intersection. The bulb -out design would replicate the bulb -outs previously constructed as a capital project by the City in 2005 for East Grand Avenue between Elm Street and Oak Park Boulevard. Additional features include a "cut -out" installation into the existing sidewalk for additional parking spaces, directly east of the new bulb -out, and widening of the sidewalk to ensure an adequate ADA pedestrian path of travel. ANALYSIS OF ISSUES: The capital improvement project will be developed as a joint effort between Orrin Cocks and the City. John Pryor, the project architect, will perform the project design for submittal and review by City staff. Upon approval, Engineering Division staff will perform the contract administration of the project, including the solicitation of formal bids, development of contract documents, and field inspection. The City Attorney has drafted an agreement to assign the responsibilities of each party's involvement in the project and to obligate Orrin Cocks to pay all costs and expenses, including design, construction and City administrative costs. Item 81 - Page 1 raMPT91.Pran • - • R ' ' • klomffems MAY 14, 2013 PAGE 2 ALTERNATIVES: The following alternatives are provided for the City Council's consideration: 1. Approve the Agreement with Orrin Cocks; 2. Do not approve the Agreement; or 3. Provide direction to staff. ADVANTAGES: The concrete bulb -out adds an aesthetic architectural feature that replicates the existing East Grand Avenue bulb -outs north of Elm Street, increases parking, and maintains a bike lane. Approval of the Agreement will confirm previous discussions and authorize the design process to begin. DISADVANTAGES: There are no disadvantages identified at this time. ENVIRONMENTAL REVIEW: The project is categorically exempt from CEQA pursuant to Section 15301(c). PUBLIC NOTIFICATION AND COMMENTS: The Agenda was posted in front of City Hall on Thursday, May 9, 2013. The Agenda and report were posted on the City's website on Friday, May 10, 2013. No public comments were received. Attachments: 1. Vicinity Map of Proposed Improvements at 1172 East Grand Avenue 2. Agreement — City of Arroyo Grande with Orrin Cocks Item 81 - Page 2 REQUEST FOR PLANTER AND BENCH SEAT AND COMMERCIAL LOADING AND PARALLEL PARKING WITH 10 FT SIDEWALK STREET IMPROVEMENTS AT GRAND AVENUE OFFICE CONDOMINIUMS NEW L LIT-IN AT SIDEWALK FOR PARALLEL PARKING FOR AND COMMERCIAL LOADIING Attachment No. 1 BRISCO ROAD CENTERLINE V 1 GRAND A I PROFESSIONAL [lI BUILDING Item 81 - Page 3 i . 1- , This Agreement to Pay for Improvements (the "Agreement ") is entered into on this day of , 2013 (the "Effective Date ") by and between the City of Arroyo Grande, a municipal corporation (hereinafter referred to as "City ") and Orrin Cocks, an individual (hereinafter referred to as " Owner "). :7X03 I IF _\3i WHEREAS, Owner is co -owner of certain real property located at 1172 East Grand Avenue, also known as the Grand Avenue Professional Building (the "Property "); WHEREAS, Owner has requested that a concrete bulb -out/ parking cut out, as more particularly described in Exhibit "A" attached hereto and incorporated herein (the "Project "), be constructed on a portion of the City's right -of -way; WHEREAS, on January 8, 2013 the City Council considered Owner's request and directed staff to proceed with the Project subject to Owner being responsible for all costs and expenses associated with the City's construction of the Project and subject to Owner granting City an easement within a portion of the Property for its right -of -way; WHEREAS, Owner and City acknowledge that the Project is a public works project subject to the laws of the State of California, City's rules and regulations, and standard public works contracting procedures. WHEREAS, by this Agreement, Owner and City wish to set forth the mutual understandings and the terms and conditions of City's construction of the Project. NOW, THEREFORE, in consideration of the foregoing Recitals and the following mutual covenants, agreements, conditions and representations, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: Section 1. Recitals. The above recitals are true and correct and are incorporated herein by this reference. Item 81 - Page 4 Section 2. Project Design. Owner has prepared conceptual plans and specifications for the Project and will prepare and process with City final Project plans (the "Final Plans "). The Final Plans shall be subject to any and all changes and modifications determined necessary by City. All final determinations regarding the Final Plans will be at City's sole and absolute discretion. Section 3. Project Construction. Owner acknowledges and agrees that the Project falls within the meaning of "public works" as that term is defined under California law. As such, Owner acknowledges that the Project is a City public works project subject to various State and local rules and regulations, including, but not limited to, public bidding and prevailing wage requirements. Accordingly, City shall bid the Project in accordance with all State and local rules and regulation and shall, in its sole discretion, determine which contractor is the lowest responsible bidder. City shall have the authority and sole discretion to approve or deny any and all Project change orders without the prior consent of Owner. If any dispute arises between City and the contractor regarding the Project and any amounts due contractor for work, such disputes shall be resolved pursuant to the construction contract's procedures for disputes and claims. If any additional amounts are determined to be due contractor for work under the contract, Owner shall be responsible for such amounts and remit them to CITY upon demand. Section 4. Payment of Project Costs. Owner hereby agrees to unconditionally and promptly pay any and all costs and expenses associated with the Project, including, but not limited to, any and all attorney's fees, engineering fees, administrative expenses, construction costs incurred by City related to the preparation, review and approval of this Agreement, City's review and approval of the Final Plans, and the bidding and construction of the Project. a. Initial Deposit. Within five days of the Effective Date of this Agreement, Owner shall deposit the sum of $2,500 with City and hereby authorizes City to withdraw such funds to satisfy City's costs contemplated by this Agreement as they are so incurred. Owner shall replenish such funds within five (5) days of written request of City. b. Construction Deposit. Upon City's approval of the Final Plans, City shall prepare an estimate of the costs and expenses for the City's bidding and construction of the Project. Such estimate shall include a commercially reasonable contingency amount. Within ten (10) days of receipt of such estimate, Owner shall deposit such amount with City (the "Construction Deposit "). City shall have the right to withdraw such funds to satisfy City's costs and expenses contemplated by this Agreement as they are so incurred. Such deposit shall be unconditional and shall be considered non - refundable unless: Item 81 - Page 5 i. All City costs and expenses are satisfied; and ii. Bidding of the Project is incomplete; and iii. No construction of the Project has commenced. Once the Construction Deposit becomes non - refundable, City shall have the right to proceed with the Project until completion at Owner's sole and absolute cost and expense. Failure by Owner to submit the Construction Deposit with City within ten (10) days of Owner's receipt of City's estimate shall be deemed termination of the Project by Owner. c. Project Completion; Project Cost Reconciliation: Owner acknowledges that the amount of the Construction Deposit is only an estimate and that at completion of the Project, City will provide Owner with a statement of City's actual costs and expenses incurred (the "Final Statement "). If the amount on the Final Statement is less than the amount of the Construction Deposit, the remaining funds shall be refunded to Owner. If the amount on the Final Statement is greater than the Construction Deposit, Owner shall pay City any amounts due within ten (10) days of receipt of the Final Statement. In the event that during construction of the Project, City determines, in its sole and absolute discretion, that the Construction Deposit is insufficient to cover the costs or anticipated costs of the Project, Owner shall deposit with City within ten (10) days written notice to Owner such necessary funds as City may so require. Section 5. Grant of Easement. Prior to any construction of the Project, Owner shall grant to City an easement within a portion of the Property to accommodate widening of the City's right -of -way. All costs and expenses associated with preparation, review and approval of the easement, including, but not limited to, City's attorney's fees, shall be borne by Owner. The easement shall be in a form acceptable to the City Attorney. Section 6. Indemnity obligations. Notwithstanding any obligation of any contractor on the Project to indemnify the City and hold it harmless, Owner agrees to defend (with legal counsel reasonably acceptable to the City), indemnify and hold harmless the City, it's officers, agents, employees and independent contractors, from any and all claims, damages, penalties, costs, expenses (including reasonable attorneys fees and court costs), injuries and liabilities of every kind arising out of this Agreement, and all claims challenging the legality, constitutionality or enforceability of this Agreement. This Section shall apply regardless of whether or not the claim, damage, penalty, cost, loss, expense, or injury complained of arises out of or in any way to any negligence on the part of the City. This provision shall survive completion of the Project. Section 6. Miscellaneous: Item 81 - Page 6 a. Notices. To be effective, all notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be delivered either in person or by certified mail, postage prepaid, return receipt requested. Notice is deemed effective on delivery if served personally on the party to whom notice is to be given and delivery is confirmed by a receipt. Notice is deemed effective on the second day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, return receipt requested, postage prepaid, and properly addressed as set forth below. Any correctly addressed notice that is refused, unclaimed, or undeliverable because of an act or omission of the party to be notified shall be deemed effective as of the first date that said notice was refused, unclaimed, or deemed undeliverable by the postal authorities. The addresses for purposes of giving notice are as set forth below but each party may change its address by written notice in accordance with this paragraph. If to: OWNER Orrin Cocks 1172 East Grand Avenue Arroyo Grande, CA 93420 r 1 TY- City of Arroyo Grande Attn: City Manager 300 E. Branch Street Arroyo Grande, CA 93421 b. Effectiveness. This Agreement shall be effective only when signed by both parties to the Agreement. c. Necessary Acts /Other Instruments. The Parties shall at their own cost and expense execute any and all other documents and instruments and shall take any and all actions as may be reasonably required, necessary, or appropriate to evidence or carry out the intent and purposes of this Agreement. d. Good Faith. Each party to this Agreement shall act in good faith in performing their respective obligations set forth in this Agreement. e. Waiver. The waiver of any breach of any condition, covenant, term, or provision of this Agreement by any party to this Agreement shall not be deemed to be a waiver of any preceding or subsequent breach under the Agreement, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. Item 81 - Page 7 f. Authorizations. All officers and individuals executing, this and other documents on behalf of the respective parties do hereby certify and warrant that they have the capacity and have been duly authorized to so execute said documents on behalf of the entity so indicated. Each signatory shall also indemnify the other party to this Agreement, and hold them harmless, from any and all damages, costs, attorneys' fees, and other expenses, if the signatory is not so authorized. g. Headings and Captions. The captions and headings of this Agreement are inserted for convenience only and shall not be deemed a part of this Agreement and shall not be used in interpreting this Agreement or in determining any of the rights or obligations of the parties to this Agreement. h. Severability. If any term, provision, covenant, or condition of this Agreement shall be or become illegal, invalid, null, void, unenforceable, or against public policy, in whole or in part, or shall be held by any court of competent jurisdiction to be illegal, invalid, null, or void, or against public policy, the term, provision, covenant, or condition shall be deemed severable, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected, impaired, or invalidated. The term, provision, covenant, or condition that is so invalidated, voided, or held to be unenforceable shall be modified or changed by the Parties to the extent possible to carry out the intentions and directives set forth in this Agreement. i. Counterpart Execution. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. j. Entire Agreement. This Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the Agreement and supersedes all prior and contemporaneous agreements, promises, representations, warranties, understandings, or undertakings by either of the Parties, either oral or written, of any character or nature. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly set forth in this Agreement. k. Amendments: This Agreement may be altered, amended, modified, or supplemented only by an instrument in writing, executed by the parties to this Agreement and by no other means. No alteration, amendment, modification, or supplement of this Agreement shall be binding unless it is in writing and signed by both parties. Each party waives their future right to claim, contest, or assert that this Agreement was modified, canceled, superseded, or changed by any oral agreement, course of conduct, waiver, or estoppel. I. Ambiguities. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities Item 81 - Page 8 are to be resolved against the drafting party shall not apply in interpreting this Agreement. m. Attorney's Fees. In any litigation, arbitration, or other proceeding in law or equity by which one party to the Agreement seeks to enforce its contract rights under the Agreement, to resolve an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, to seek a declaration of any rights or obligations under this Agreement, or to interpret the provisions of this Agreement, the prevailing party shall be entitled to recover from the losing party actual attorneys' fees incurred to resolve the dispute and to enforce the final judgment, award, decision, or order and such fees, costs; or expenses shall be in addition to any other relief to which the prevailing party may be entitled. The award of attorneys' fees shall be deemed to have accrued upon the commencement of the action and shall be paid whether or not such action is prosecuted to judgment, award, decision, or order. "Proceeding" shall mean any action, suit, claim, arbitration, alternative dispute resolution mechanism, investigation, administrative hearing, or any other proceeding, including but not limited to civil, criminal, administrative, regulatory, or investigative. The attorneys' fees to be awarded the prevailing party may be determined by the court or other decision maker in the same action or proceeding or in a separate action brought for that purpose. Any judgment, award, decision, or order entered in such action or proceeding shall contain a specific provision providing for the recovery of actual attorneys' fees incurred in enforcing such judgment, award, decision, or order. The award of attorneys' fees shall not be computed in accordance with any court schedule, but shall be made so as to fully reimburse the prevailing party for all attorneys' fees, paralegal' fees, and expenses actually incurred in good faith, regardless of the size of the judgment, award, decision, or order, it being the intention of the parties to fully compensate the prevailing party for all actual attorneys' fees, paralegal fees, and costs and expenses paid or incurred in good faith. This provision applies to the entire Agreement. [Signatures on following page] Item 81 - Page 9 r � IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF ARROYO GRANDE OWNER Orrin Cocks Attest: Kelly Wetmore, City Clerk Approved As To Form: Timothy J. Carmel, City Attorney Item 8.f. - Page 10