Subject Property sold, assigned or transferred to it. Provided however, notwithstanding anything to the contrary above, if any such sale, assignment or transfer relates to a completed residential building, which has been approved by City for occupancy, the automatic termination provisions of Section 5.1 herein shall apply thereto and the rights and obligations of Developer hereunder shall not run with respect to such portion of the Subject Property sold, assigned or transferred and shall not be binding upon such purchaser, assignee or transferee.
Section 1.12. Amendment to Agreement. This Agreement may be amended by mutual consent of the parties in writing, in accordance with the provisions of California Government Code Section 65868.
Section 1.13. Reserved Discretionary Approvals. Each discretionary approval by City, including without limitation, preliminary and final development plans, preliminary and final improvements plans, conditional use permits, tentative subdivision maps, including vesting and non-vesting tentative parcel maps and tentative tract maps, building permits, variances, lot line adjustments, grading permits, encroachment permits, site plan approvals, and the accompanying Conditions of Approval (Exhibit B) that will accomplish the goals, objectives, policies and plans referenced, described, implied and shown in the Agreement and obtained by Developer for the Project after the Effective Date, shall automatically become part of the Project Entitlements, which vest hereunder, as each such approval becomes effective following formal action by City. In reviewing and approving such applications, City reserves the right to exercise its discretion as set forth in applicable provisions of the Development Agreement Law, the General Plan and City Municipal Code in effect as of the Effective Date.
ARTICLE 2
PROJECT DEVELOPMENT
Section 2.1. Vested Rights of Developer. During the term of this Agreement, unless sooner terminated in accordance with the terms hereof, in developing the Subject Property consistent with the Project described herein, Developer is assured, and City agrees, that the development rights, obligations, terms and conditions specified in the Collective Standards are fully vested in Developer and may not be changed or modified by City except as may be expressly permitted by, and in accordance with, the terms and conditions of this Agreement, or as expressly consented thereto by Developer to the extent such proposed change or modification is applicable thereto or as permitted or required by California Government Code Section 65866, or other applicable state or federal law. (a) Permitted Conditions. In connection with any Project Entitlements, which are undertaken pursuant to and in conformity with the Collective Standards, City shall have the right to impose reasonable conditions including, without limitation, normal and customary dedications for public rights-of-way or easements necessary for the Project; provided, however, such conditions and dedications shall not be inconsistent with the Collective Standards or this Agreement. Developer may protest any conditions, dedications or fees while continuing to develop the Subject Property, and such protest shall not delay or stop the issuance of building permits or certificates of occupancy, so long as such development or issuance of permits or certificates does not apply to portions of the Project in
dispute or otherwise act to preclude City from including such conditions, dedications or fees where ultimately determined to be appropriate.
(b) Amendments to Entitlements. It is contemplated by City and Developer that Developer may, from time to time, seek minor changes to one or more of the Project Entitlements. Any such changes are contemplated by City and Developer as being within the scope of this Agreement as long as the changes are minor and consistent with this Agreement. Any minor change to this Agreement shall be reviewed by the City Administrator or his designee and Developer in order to determine and verify that such change is minor and consistent with this Agreement. The parties agree that changes to which they mutually agree are minor may be agreed to in writing by City and Developer. All other changes or amendments will require approval in accordance with the provisions of this Agreement.
Section 2.2. Future Entitlements. Upon the granting of any subsequent approvals relating to the development of the Subject Property, including without limitation, land subdivision approvals, zone district changes, a Specific Plan, if any, and amendments thereto, the General Plan and amendments thereto, planned unit development approvals, and the like (collectively, the “Future Entitlements”), such Future Entitlements shall become part of the Collective Standards, and Developer shall, to the broadest extent permitted by law, have the vested right to develop the Subject Property and/or any portion thereof in a manner and to the extent permitted by the Collective Standards, as modified, supplemented and or augmented by the Future Entitlements. Such Future Entitlements shall include, without limitation, residential projects including land subdivisions, zoning changes and residential planned unit developments undertaken pursuant to and in conformity with a Specific Plan, if any, as contemplated in CEQA Guidelines Section 15182.
(a) Land Use Approvals. Before commencement of construction, Developer shall, at its own expense, secure or cause to be secured any and all land use and other entitlements, permits and approvals which may be required by City or any other governmental agency affected by such construction or work. Nothing in this Agreement is intended or shall operate to commit City’s discretion with respect to land use and other entitlements, permits and approvals which may be required by Developer with respect to the Developer Improvements.
(b) Term of Subdivision Maps. Pursuant to California Government Code Section 66452.6(a)(1), the term of any subdivision map related to all or any portion of the Subject Property shall be extended for a period equal to the longer of (i) the expiration date of this Agreement as set forth in Section 1.8 above, including any extensions thereof; or (ii) the term of such maps under applicable provisions of the Subdivision Map Act (California Government Code Sections 66410 et seq.), including any non-discretionary extensions and any granted discretionary extensions thereof.
Section 2.3 Developer Fees, Bonds, Securities. Except as otherwise provided in this Agreement, and specifically excluding fees set by entities not controlled by City that are collected by City, City shall only charge and impose those fees and exactions, including without limitation, dedications and any other fee or tax (including excise, construction, or any other tax) relating to development or the privilege of developing, which are in effect as
of the Effective Date of this Agreement and apply to all projects on a City-wide basis.
Amounts of bonds or other forms of surety determined to be required at City’s reasonable discretion at the time of final approvals of Future Entitlements shall be calculated and communicated to Developer at the time of the approval. In the event the Project is phased, bonds or other forms of surety, with applicable reasonable terms and conditions, shall be calculated at the time of final approval for each phase and shall be incorporated into this Agreement by amendment.
Section 2.4 Insurance Requirements. Developer shall obtain prior to commencement of construction of the Developer Improvements, and maintain or shall cause its contractor to obtain and maintain until the termination of this Agreement, a comprehensive general liability policy in the amount of Five Million Dollars ($5,000,000) combined single limit policy, and if Developer owns automobiles, a comprehensive automobile liability policy in the amount of Two Million Dollars ($2,000,000), combined single limit, or such other policy limits as City may reasonably approve at its discretion, including contractual liability, to protect Developer and City from claims for damages, and which policy shall be issued by an “A” rated insurance carrier. Such policy or policies shall be written on an occurrence form. Developer shall also furnish or cause to be furnished to City evidence satisfactory to City that Developer and any contractor with whom it has contracted for the performance of work pursuant to this Agreement carries workers’ compensation insurance as required by law. Developer shall furnish a certificate of insurance on a form approved by City setting forth the general provisions of the insurance coverage. This countersigned certificate shall name City and its respective officers, agents, employees and volunteers as additionally insured parties under the policy, and the certificate shall be accompanied by a duly executed endorsement evidencing such additional insured status. Developer will use commercially reasonable best efforts to notify City of any material change, cancellation or termination of the coverage within ten (10) calendar days after receiving notice of the effective date of any material change, cancellation or termination of the insurance coverage. Coverage provided hereunder by Developer shall be primary insurance and not be contributing with any insurance maintained by City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of City. The required certificate shall be furnished by Developer at the time set forth therefor in the Schedule of Performance or, if no time is specified, prior to the commencement of construction of the Developer Improvements.
Section 2.5. Permitted Uses and Development Standards. The Project’s permitted uses, the density and intensity of use, the maximum height and size of proposed buildings, provisions for reservation and dedication of land or payment of fees in lieu of dedication for public purposes, the construction, installation and extension of public and private improvements, subdivision standards, development guidelines and standards, implementation program for processing of subsequent entitlements and other conditions of development for the Subject Property shall be those set forth in the Collective Standards.
The parties hereto intend that the Collective Standards shall serve as the definitive and controlling document for all subsequent actions, discretionary or ministerial, relating to the development, subdivision, and occupancy of the Project. All development shall be in substantive conformity with the Collective Standards to the approval of the City Administrator. Except as otherwise stated in this Agreement, subsequent approvals
undertaken pursuant to and in conformity with the Project approved concurrently with the adoption of this Agreement, shall not be conditioned upon adherence to other ordinances, rules, regulations or requirements except as permitted or required by California Government Code Section 65866 or other applicable law.
Section 2.6. Amendments. Any amendments to the Tentative Subdivision Map or Project Entitlements agreed to by Developer and the City’s Director of Community and Economic Development do not require an amendment to this Agreement.
Section 2.7. No Conflicting Enactments. Except as permitted or required by state or federal law, neither City nor any department or division of City shall enact and apply to the Subject Property any ordinance, resolution or other measure that relates to the rate, timing or sequencing of the development or construction of the Subject Property on all or any part of the Subject Property that is in conflict with this Agreement, or any amendments thereto, or that reduces the development rights provided by this Agreement. Without limiting the foregoing general statement, and for all purposes pursuant to this Agreement generally, and this Section 2.7 specifically, and except as permitted or required by state or federal law, an ordinance, resolution or other measure shall be deemed to conflict with this Agreement if the ordinance, resolution or measure seeks to accomplish any one or more of the following results, either with specific reference to the Subject Property or as part of a general enactment that applies to the Subject Property would or could:
(a) Limit or reduce the density or intensity of the Project development granted by the Collective Standards or otherwise require any reduction in the height, number, size or square footage of lots, structures or buildings; (b) Expand or increase Developer’s obligations under the Collective Standards with respect to the provision of parking spaces, streets, roadways and/or any other public or private improvements or structures;
(c) Directly limit public services or facilities otherwise available (e.g., water, drainage, sewer or sewage treatment capacity) to, within or available for use by the Project;
(d) Limit or control in any manner the timing or phasing of the construction or development of the Project allowed by the Collective Standards; (e) Limit the location of buildings, structures, grading or other improvements relating to the development of the Project in a manner which is inconsistent with or more restrictive than the Collective Standards; (f) Limit the processing of applications for or procurement of Subsequent Approvals;
(g) Establish, enact or increase in any manner applicable to the Project, or impose against the Project, any fees, taxes (including, without limitation, general, special and excise taxes), assessments, liens or other financial obligations other than those obligations specifically in effect as of the date of approval of the Tentative Subdivision Map except as otherwise specifically provided in this Agreement; or
(h) Initiate, support or establish any assessment district or other public financing mechanism that would include or otherwise burden or affect the Project or the Subject Property that has not been established prior to the Effective Date.
Clauses (a) through (h) above are intended as examples, and not as a comprehensive or exclusive list, of new development requirements that would or could conflict with the Collective Standards and/or this Agreement.
Section 2.8. Changes to Existing Land Use Regulations. Only the following changes to the Existing Land Use Regulations shall apply to the development of the Subject Property:
(a) Land use regulations, ordinances, policies, programs, resolutions or fees adopted or undertaken by City in order to comply with state or federal laws, plans or regulations, provided that in the event that such state or federal laws, plans or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provision or provisions shall be modified or suspended as may be necessary to comply with such state or federal laws or regulations. City land use regulations, ordinances, policies, programs, resolutions or fees adopted after the Effective Date, that are not in conflict with the terms and conditions for development of the Subject Property established by this Agreement or otherwise applicable Existing Land Use Regulations and which do not impose additional burdens on such development.
(b) City land use regulations, ordinances, policies, programs, resolutions or fees adopted after the Effective Date, which are in conflict with the Existing Land Use Regulations, but the application of which to the development of the Subject Property has been consented to in writing by Developer and/or the applicable Landowner either through this Agreement or by later separate document.
Section 2.9. Application, Processing and Inspection Fees. Application, processing and inspection fees that are revised during the term of this Agreement, even if such revised fees apply generally to similar private projects or works within City, shall not be applicable to the Project or the Subject Property or any portion thereof.
Section 2.10. Timing of Development. The parties acknowledge that the most efficient and economic development of the Subject Property depends upon numerous factors, such as market orientation and demand, interest rates, competition and similar factors, and that generally it will be most economically beneficial to the ultimate purchasers to have the rate of development determined by Developer. Accordingly, the timing, sequencing and phasing of the development is solely the responsibility of Developer, and the City Council shall not impose, by ordinance, resolution or otherwise, any restrictions on such timing, sequencing or phasing of development within the Subject Property.
Furthermore, the timing of the construction of facilities to be acquired by City also depends on numerous factors relating to the need of City or the Subject Property for the acquired facilities, and the parties shall attempt to reach mutual agreement relating to the timing and sequence of construction of the acquired facilities. Developer may seek to phase the final subdivision maps as Developer determines in its sole discretion. City may impose reasonable conditions on the phasing of final maps as permitted by the Subdivision Map Act or other applicable law.
Section 2.11. Obligation and Rights of Mortgage Lenders. The holder of any mortgage, deed of trust or other security arrangement with respect to the Subject Property, or any portion thereof, shall not be obligated under this Agreement to construct or complete improvements or to guarantee such construction or completion, but shall otherwise be bound by all of the terms and conditions of this Agreement which pertain to the Subject Property or such portion thereof in which it holds an interest. Any such holder who comes into possession of the Subject Property, or any portion thereof, pursuant to a foreclosure of a mortgage or a deed of trust or deed in lieu of foreclosure, shall take the Subject Property, or such portion thereof, subject to any pro rata claims for payments or charges against the Subject Property, or such portion thereof, which accrue prior and subsequent to the time such holder comes into possession. Nothing in this Agreement shall be deemed or construed to permit or authorize any such holder to devote the Subject Property, or any portion thereof, to any uses, or to construct any improvements thereon, other than those uses and improvements provided for or authorized by this Agreement, subject to all of the terms and conditions of this Agreement.
ARTICLE 3
PROJECT ENTITLEMENTS AND PERMIT PROCESSING
Section 3.1. City Approvals. Subject to Developer's compliance with applicable regulations, and except as otherwise required by applicable state or federal law, City will permit uses on the Subject Property that are consistent with the Collective Standards. City agrees to review and act upon and grant and implement the land use and building approvals, including, but not limited to, planned unit developments, variances, development plans, subdivision improvement plans and agreements, building plans and permits, specifications, landscape plans, grading plans and permits, parcel maps, tentative subdivision maps, final subdivision maps (including phased final subdivision maps), amendments to maps, lot line adjustments, re-subdivisions, use permits and certificates of occupancy (collectively, the “City Approvals”), in a manner reasonably necessary or desirable to accomplish the goals, objectives, policies, standards and plans described in the Collective Standards. City Approvals shall include any applications, permits and approvals required to complete the infrastructure and improvements necessary to develop the Subject Property (collectively, the “Improvements”), in accordance with the Collective Standards, including, without limitation, those related to: (i) clearing the Subject Property; (ii) grading the Subject Property; (iii) construction of roads, storm drainage facilities, sewer facilities and other utility facilities and connections; (iv) construction of water treatment and delivery facilities and storage tanks; and (v) construction of all residential structures and all structures and facilities accessory thereto, subject to the limitations set forth in the Collective Standards.
Section 3.2. Duty to Grant and Implement. City's obligation to review, act upon, grant and implement the City Approvals set forth above shall not infringe upon City's right to withhold such City Approvals for failure to conform to the Collective Standards or to applicable state or federal law.
Section 3.3. Timely Processing. The aforementioned City Approvals and any environmental review required thereon shall be reviewed, acted upon and granted in an expeditious manner.
Section 3.4. Development Impact Fees and Quimby Act Fees. Developer shall be responsible for the payment of Development Impact Fees required by the Project Entitlements, and set forth below, at the rate of such fees as of the date of approval of the Tentative Subdivision Map; provided, however certain Development Impact Fees may be subject to increase, to the extent more particularly described in Exhibit C attached hereto.
Except for the obligation to pay the Development Impact Fees set forth on Exhibit C attached hereto, Developer shall not be responsible for the payment of any development impact fees imposed by City. The preceding sentence shall not limit City’s ability to impose other types of fees on the Project provided in this Agreement. Development Impact Fees for the Project shall be those that were in place and effective upon the date of approval of the Tentative Subdivision Map and the aggregate amount of such Development Impact Fees. and Quimby Act Fees shall be Net amount of $11,772.50 per single-family residential dwelling unit (the “Development Impact Fees”) valid July 1, 2023 - June 30, 2025 and $21,221.80 per single-family residential dwelling unit after July 1, 2025 (Exhibit C). (a) Quimby Act. Upon review of the two (2) pocket parks proposed within the Lone Oak/Sessions TSM, the two parks were calculated as follows: Outlot A: 11,667 Square-Feet and Outlot B: 11,667 Square-Feet. The combined total of the two outlots being designated for recreation park areas is approximately 23,334 Square-Feet or 0.54 Acres.
When calculating the City’s requirement for Park Dedication as identified with in the 2022 Development Impact Fee Study, a development consisting of 203 single-family residential units shall be required to dedicate approximately 84,889 Square-Feet or 1.95 acres of recreation park area. The required park calculation was calculated as follows: Number of Units x Development Impact Fee Study Average Persons Per Household x 0.00300 (Acreage required per person residing within the development) or 203 x 3.20 x 0.00300 =
1.9488 Acres or 84,889.73 Square-Feet of new recreational park area. The current development is proposing 26.4% of the required acreage. The development can dedicate the additional acreage required per the calculation or pay the Quimby Act Fees listed in Exhibit “C” reduced by the 26.4% calculation.
(b) Storm Drainage Impact Fees. Upon review of the proposed Lone Oak / Session’s TSM, there are no storm water retention facilities identified within the project area. Due to this evaluation of the project, the project will be subject to the City’s Storm Drainage Impact Fee due to the project being required to drain into an existing City Storm Basin Facility. When calculating the requirement for Storm Drainage Impact Fees as identified with in the 2022 Development Impact Fee Study, a development designated in the General Plan as ‘Residential – Medium Density’ is subject to a fee of $9,710 per acre.
The project is approximately 38.94 acres. The development shall be obligated to pay a $378,107.40 Storm Drainage Impact Fee. When the total of $378,107.40 is divided up among the 203 single-family residential units, each unit is required to pay $1,862.60.
Section 3.5. Intersection Mitigation Measures. The intersection of Robertson Boulevard & Washington Road (which is the subject of Condition of Approval C.1.d), was included in a traffic study, the results of which were presented in a report entitled Traffic Impact Analysis for the Sessions Subdivision dated March 23, 2018 by KD Anderson & Associates, Inc. (the “TIA”). An Intersection Control Evaluation (the “ICE”) report was initiated based on the recommendation of the TIA and an ICE report dated August 6, 2018.
However, subsequent to completion of the ICE, the intersection was also addressed in a letter with the subject: Traffic Impact Analysis for Sessions Subdivision, Chowchilla, CA:
Alternative Mitigation dated October 8, 2018 by KD Anderson & Associates, Inc. (the “Alternative Mitigation Letter”). The Alternative Mitigation Letter identified a mitigation measure requiring modification of the intersection and construction of a twoway left-turn lane in lieu of traffic signals or a roundabout. The recommendations presented in the Alternative Mitigation letter were accepted by Caltrans in a letter dated October 16, 2018 (the “Caltrans Letter”), which identified the following two mitigation measures for the Project:
1. For opening-day, the Caltrans Letter provides that “the developer should realign Washington Road to correct an existing skewed intersection angle and a re-stripe of the existing southbound left-turn lane into a two-way left-turn on SR 233.” Developer shall satisfy this mitigation measure by performing this work.
2. For the cumulative year conditions (estimated conditions 20 years in the future), the Caltrans Letter provides: “Funding for future improvements to this intersection have not been identified and this development should be responsible for its proportional share of the costs.” The Caltrans Letter also indicates that, “It is recommended that the City of Chowchilla begin collecting developer traffic mitigation impact fees for either traffic signals or a multilane roundabout or an average of the two construction costs.” Developer shall satisfy this mitigation measure by paying to the City the fixed sum of $663,000.00 [$5,100,000 x 13% (the “Intersection In-Lieu Fee”)] to be held by the City and applied to future improvements at the intersection of Robertson Boulevard and Washington Road. The Intersection Payment is deemed to be the Project’s equitable proportional share of the cost for such future improvements.
Section 3.6. Other Fees. In addition to the Development Impact Fees set forth above, City may collect additional fees or exactions which meet at least one of the following conditions: (i) the additional fees or exactions are imposed by a governmental agency other than City and City is required to collect the additional fees or exactions; or (ii) the additional fees or exactions are imposed by City after a noticed public hearing by the City Council and findings by the City Council, in the exercise of City’s general police powers, that the additional fees or exactions are required in furtherance of the health, safety and welfare of the public and are otherwise consistent with California Government Code Sections 66000 et seq., the General Plan and any applicable Specific Plan.
Section 3.7. Acquisition of Real Property Interests for Public Improvements.
With regard to property acquisitions and dedications for the purpose of constructing any public improvements, City shall use its best efforts to include, as a condition of approval of other development projects adjacent to the Project, that such adjacent projects shall dedicate easements and/or rights-of-way necessary for the Project’s infrastructure improvements and Developer shall use and document its reasonable efforts to obtain any easement, right-ofway or other real property interest where City is unable, due to lack of immediate jurisdiction, to require such interest. If Developer is unable to acquire such real property interest or interests within a reasonable timeframe and after the exercise of reasonable
diligence, then Developer may request assistance from City. Upon such request, City may negotiate the purchase of the necessary real property interest or interests, or may, in its sole discretion, commence condemnation proceedings in accordance with California Government Code Section 66462.5, to acquire such real property interests. Developer shall pay all costs and expenses of acquiring necessary real property interests, whether through negotiated acquisition or condemnation proceedings, including but not limited to, payment of the estimated fair market value or negotiated settlement amount of the subject property, the cost of removing any existing structures and/or relocation expenses, if necessary, to construct required improvements, and all appraisal, expert, legal, staff and administrative costs, subject to Developer’s prior approval, in writing, of such costs. Developer shall indemnify City, its elected and appointed officers, officials, employees, agents, representatives and volunteers against any adverse determination, adjudication or monetary award to a plaintiff in an eminent domain proceeding conducted pursuant to the provisions of this Agreement by a court of competent jurisdiction.
Section 3.8. Dedications. Developer shall offer and City shall accept dedications for all required public lands upon completion of the improvements to be installed thereon and therein, or when otherwise provided herein, as follows:
(a) Rights-of-Way. Developer shall dedicate its interest in any and all public road rights-of-way without expense to City and at no cost to City or any other public agency, and City shall accept such dedication or dedications upon the recordation of the final map for the corresponding subdivision. Such rights-of-way or property to be conveyed to City pursuant to the Project Entitlements shall be delivered by Developer free of any liens, encumbrances, special taxes, or assessments not approved by City, and shall be excluded from any covenants, conditions and restrictions on the Subject Property.
(b) Public Utility Easements. Developer shall dedicate its interest in any and all improvements to water lines, water tanks, pump stations, sewer lines, storm drains, storm retention basins and other public facilities for public utility purposes, as required by the public utilities having jurisdiction and City’s Engineer, in a form approved by City’s Engineer, to City, at no cost to City or any other public agency, and City shall accept such dedication. The dedication or dedications shall be effective upon recordation of said form. (c) All Dedications. Such rights-of-way or property to be dedicated to City pursuant to the Project Entitlements shall be delivered by Developer free of any liens, encumbrances, special taxes, or assessments not approved by City, and shall be excluded from any covenants, conditions and restrictions on the Property.
Section 3.9. Reimbursements for Improvements Benefitting Other Properties.
Pursuant to the Conditions of Approval, Developer is required to install the following improvements that exceed the requirements for the Project:
(1) Installation of a 60-inch-diameter storm drain pipe extension, pursuant to Condition of Approval D.4 and D.5 (the “Storm Drain Extension”), which will service other properties in and around the downtown area of City; (2) Installation of a sewer lift station pursuant to Condition of Approval B.4 and B.5 (the “Sewer Lift Station”), which, in addition to serving the Subject
Property, will also serve the approximately 20-acre area located immediately north of the Subject Property and identified within Assessor’s Parcel Number 001-410-004-000, which is located north and west of the Subject Property; and
(3) Widening Washington Road pursuant to Condition of Approval C.1.a) and C.1.d) (the “Washington Road Improvements”), which includes replacement of existing pavement that would otherwise be City’s responsibility. (a) Reimbursable Improvements. The Storm Drain Extension, the Sewer Lift Station and the Washington Road Improvements are collectively referred to herein as the “Reimbursable Improvements” and individually as a “Reimbursable Improvement”. Therefore, subject to and consistent with the terms and provisions of this Section 3.9, City agrees to reimburse Developer for Developer’s Construction costs, as follows: seventy-five percent (75%) of the Storm Drain Extension costs, thirty-three and one-third precent (33.3%) of the Sewer Lift Station costs, and thirty-six and four-tenths percent (36.4%) of the Washington Road Improvements (along the southern property line) costs.
(b) Public Works Requirements. Developer shall ensure that the bidding, awarding and construction of the Reimbursable Improvements are undertaken as if such Reimbursable Improvements were constructed as a public works project under the direction and authority ofCity, pursuant to the applicable provisions of the California Public Contract Code Sections 100 et seq. Thus, without limitation, the following:
(i) Prior to soliciting a bid or awarding a contract for any portion of the Reimbursable Improvements, Developer shall submit the bid packet and a set of construction drawings signed by Developer or an authorized representative designated by Developer for the work being bid to City's Public Works Director/City Engineer (the “Public Works Director”) for review and approval, which approval shall not be unreasonably withheld and which shall be granted or denied within fifteen (15) calendar days after submission of such bid packet. If the Public Works Director denies approval of such bid packet and construction drawings, the Public Works Director shall specify the reasons for such disapproval and Developer shall resubmit a revised bid packet and, if necessary, revised construction drawings for review and approval until such approval is obtained.
(ii) Developer shall obtain bids for the construction of the Reimbursable Improvements in a manner which has been approved by the Public Works Director. Developer shall provide the Public Works Director with copies of all bids received from contractors and a bid summary in a form approved by the Public Works Director to assure that the contractor/subcontractors adhere to the applicable legal requirements for public works projects. The contract or contracts for the construction of the Reimbursable Improvements shall be awarded to the lowest responsive and responsible bidder(s) submitting the lowest responsive bid(s) for the construction of the Reimbursable Improvements, as determined by Developer in its sole and good faith discretion. Developer shall enter into a construction contract with each contractor selected to perform work on the Reimbursable Improvements (after competitive bidding as set forth above) (each, a “Construction Contract”). Developer
shall submit to City a copy of each executed Construction Contract for the Reimbursable Improvements within fifteen (15) calendar days after execution thereof. (iii) Developer's general contractor for the construction of the Reimbursable Improvements (the “General Contractor”) shall pay prevailing wages (in accordance with California Labor Code Division 2, Part 7, Chapter 1, Articles 1 and 2, Sections 1720 et seq. and to otherwise comply with applicable provisions of the California Labor Code, the California Government Code, and the California Public Contract Code relating to public works projects of cities, counties and other public agencies and as required by the procedures and standards of City with respect to the construction of its public works projects or as otherwise directed by the Public Works Director.
(c) Compliance with Plans and Specifications. The Reimbursable Improvements shall be completed in accordance with plans and specifications approved by City.
(d) Reconciliation. Upon Developer’s completion of each Reimbursable Improvement described above (i.e., the Storm Drain Extension, the Sewer Lift Station and the Washington Road Improvements), Developer may, at Developer’s sole discretion, incrementally submit to the Public Works Director such information as the Public Works Director may reasonably require in order to calculate and verify the costs of each Reimbursable Improvement in accordance with this Section 3.9.
Conditions Precedent to Reimbursement. City will provide reimbursement for each Reimbursable Improvement pursuant to this Section 3.9 within thirty (30) calendar days after satisfaction or written waiver by City of each of the following conditions precedent to City’s reimbursement for each Reimbursable Improvement:
(i) Completion of Construction. Developer shall have
completed the construction of the Reimbursable Improvement for which Developer is seeking reimbursement, and a notice of completion shall have been recorded regarding the Reimbursable Improvement, in accordance with California Civil Code Section 8182 (as applicable), and thirty-five (35) calendar days shall have elapsed since the recordation of such notice of completion. The purposes of this provision are to ensure that the Reimbursable Improvement will be independently functional and to maintain consistency with vesting rights, and nothing herein shall be deemed to make any part of the Project other than the Reimbursable Improvements a public work. (ii) Submission of Bills and/or Invoices. Developer shall have made full and complete payment of all undisputed claims for work performed regarding the Reimbursable Improvement, or in the event of a dispute between Developer and the General Contractor or a subcontractor, Developer shall have obtained a commercially reasonable bond reasonably satisfactory to City to release any applicable mechanics' lien or stop notice, and Developer shall have submitted and City shall have approved a written request for the reimbursement, including copies of all bills and/or invoices evidencing costs actually incurred by Developer in constructing the Reimbursable Improvement.
(iii) Acceptance of Reimbursable Improvement by City.
City shall have accepted title to the Reimbursable Improvement and Developer shall have provided City with the maintenance guarantees reasonably required by City. City agrees it will not unreasonably withhold or condition its acceptance of title to the Reimbursable Improvement.
ARTICLE 4
DEFAULT
Section 4.1. General Provisions.
(a) Subject to extensions of time by mutual consent in writing, failure or delay by either party not released from this Agreement to perform any term or provision of this Agreement, shall constitute a default. In the event of alleged default or breach of any term or condition of this Agreement, the party alleging such default or breach shall give the other party not less than thirty (30) calendar days’ notice in writing specifying the nature of the alleged default and the manner in which said default may be cured. During any such thirty (30) day period, the party charged shall not be considered in default for purposes of termination or institution of legal proceedings.
(b) After notice and expiration of the thirty (30) day period, if such default has not been cured or is not being diligently cured in the manner set forth in the notice, the other party to this Agreement may, at its option, (i) institute legal proceedings pursuant to this Agreement seeking specific performance of this Agreement and/or actual damages arising from such default; or (ii) give notice of its intent to terminate this Agreement pursuant to California Government Code Section 65868 and any regulations of City implementing said Government Code section. Following notice of intent to terminate, or prior to instituting legal proceedings, the matter shall be scheduled for consideration and review in the manner set forth in California Government Code Sections 65865, 65867 and 65868 and City regulations implementing said sections by City within thirty (30) calendar days.
(c) Following consideration of the evidence presented in said review before City, the party alleging the default by the other party may institute legal proceedings or may give written notice of termination of this Agreement to the other party. (d) Evidence of default may also arise in the course of a regularly scheduled periodic review of this Agreement pursuant to Government Code Section 65865.1. If either party determines that a party is in default following the completion of the normally scheduled periodic review, said party may give written notice of its intention to either institute legal proceedings or terminate this Agreement, specifying in said notice the alleged nature of the default, and potential actions to cure said default where appropriate.
If the alleged default is not cured within thirty (30) calendar days or within such longer period specified in the notice, or the defaulting party waives its right to cure such alleged default, then the non-defaulting party may either institute legal proceedings or terminate this Agreement.
Section 4.2. Annual Review. City shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by Developer with the terms of this Agreement. Such periodic review by the City Administrator shall be limited in scope to compliance with the terms of this Agreement pursuant to California Government Code Section 65865.1. Failure to complete said review within the prescribed period shall be deemed a finding of good faith substantial compliance for that period. Notice of such annual review shall include the statement that any review may result in amendment or termination of this Agreement. A finding by City of good faith compliance by Developer with the terms of this Agreement shall conclusively determine said issue up to and including the date of said review. Any party may appeal a determination by the City Administrator to the City Council by filing a written appeal with the Clerk of the City within ten (10) calendar days of the determination. City shall deposit in the mail or email to Developer a copy of all staff reports and other written communications related to the subject matter of the appeal and, to the extent practical, related exhibits concerning contract performance at least seven (7) calendar days prior to such periodic review.
Section 4.3. Estoppel Certificates. City shall at any time upon not less than thirty (30) calendar days prior to written notice from Developer, execute, acknowledge and deliver to Developer, lender or investor an Estoppel Certificate in writing which certifies that this Agreement is in full force and effect, has not been terminated, and is enforceable in accordance with its terms.
Section 4.4. Developer Default Limited to Property/Entity; Separate Obligations of Owners. Except as may be specified in Section 4.1 of this Agreement, no default hereunder in performance of a covenant or obligation with respect to a particular portion of the Subject Property shall constitute a default applicable to any other portion of the Subject Property, and any remedy arising by reason of such default shall be applicable solely to the portion of Subject Property where the default has occurred. Similarly, the obligations of Developer and landowner or landowners other than Developer shall be severable and no default hereunder in performance of a covenant or obligation by any one of them shall constitute a default applicable to any other owner who is not affiliated with such defaulting owner, and any remedy arising by reason of such default shall be solely applicable to the defaulting owner and the portion of the Subject Property owned thereby.
Section 4.5. Intentionally Omitted.
Section 4.6. Cumulative Remedies of Parties. In addition to any other rights or remedies, City, Developer and any landowner or landowners other than Developer may institute legal or equitable proceedings to cure, correct or remedy any default, to specifically enforce any covenant or agreement herein, to enjoin any threatened or attempted violation of the provisions of this Agreement.
Section 4.7. Forced Delay, Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to reasons beyond the delayed party’s reasonable control including, without limitation, war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, casualties, acts of God, inclement weather, epidemic or pandemic, governmental restrictions imposed or mandated by governmental entities other than City, enactment of conflicting state or federal laws or regulations, new or supplementary environmental regulation enacted by the state or federal government, or
litigation. An extension of time for such cause shall be granted in writing by City for the period of the forced delay or longer, as may be mutually agreed upon, but in no case shall the cumulative extensions add more than five (5) years to the effective period of this Agreement.
ARTICLE 5
TERMINATION
Section 5.1. Termination Upon Completion of Development. This Agreement shall terminate upon the expiration of its term or when the Subject Property has been fully developed and all of Developer's obligations in connection therewith are satisfied as determined by City. Upon termination of this Agreement, City shall record a notice of such termination in a form satisfactory to the City Attorney that the Agreement has been terminated. This Agreement shall automatically terminate and be of no further force or effect as to any single-family residence, any other residential dwelling unit or parcel upon which such residence or dwelling unit is located, when such residence or dwelling unit has been approved by City for occupancy.
Section 5.2. Effect Upon Termination on Developer Obligations. Termination of this Agreement as to Developer of the Subject Property or any portion thereof shall not affect any of Developer's obligations to comply with City’s General Plan and the terms and conditions of any applicable zoning, or subdivision map or other land use entitlements approved with respect to the Subject Property, any other covenants or any other development requirements specified in this Agreement to continue after the termination of this Agreement, or obligations to pay assessments, liens, fees or taxes.
Section 5.3. Effect Upon Termination on City. Upon any termination of this Agreement as to Developer of the Subject Property, or any portion thereof, the entitlements, conditions of development, limitations on fees and all other terms and conditions of this Agreement shall no longer be vested hereby with respect to the property affected by such termination (provided vesting of such entitlements, conditions or fees may then be established for such property pursuant to the existing planning and zoning law) and City shall no longer be limited, by this Agreement, to make any changes or modifications to such entitlements, conditions or fees applicable to such property.
ARTICLE 6
STANDARD PROVISIONS
Section 6.1. Notices. Notices, demands, correspondence and other communications to City and Developer shall be deemed given if dispatched by prepaid first-class mail or overnight courier to the principal offices of the parties as designated in Section 1.6 of this Agreement. Notice to City shall be to the attention of both the City Administrator and the City Attorney. Notices to subsequent landowners shall be required to be given by City only for those landowners who have given City written notice of their address for such notices. The parties hereto may, from time to time, advise the other of new addresses for such notices, demands or correspondence.
Section 6.2. Recordation of Agreement. Within ten (10) calendar days of the City Council entering into this Agreement, the Clerk of the City shall record this Agreement.
Section 6.3. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California.
Section 6.4. Invalidity of Agreement/Severability. If this Agreement in its entirety is determined by a court of competent jurisdiction to be invalid or unenforceable, this Agreement shall automatically terminate as of the date of final entry of judgment. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid and unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable according to the terms of any federal or state statute, which becomes effective after the Effective Date, the remaining provisions shall continue in full force and effect.
Section 6.5. Third Party Legal Challenge. The terms of this Section 6.5 shall apply to any legal action or special proceeding commenced by any person or entity other than a party, challenging the legality or validity of this Agreement or any provision herein. (a) In the event of any such action or challenge, Developer agrees to defend, indemnify, and hold harmless City and its agents, officers, and employees from any claim, action, or proceeding against City or its agents, officers, and employees to the extent arising from such approval. The obligation of Developer to defend, indemnify, and hold harmless arises only if City notifies Developer of any claim, action, or proceeding within a reasonable period of time after City knows of, or should have known of, the claim, action or proceeding.
(b) Developer shall, upon written request of City, prepare a defense for City at Developer’s sole expense. Alternatively, City, with Developer’s agreement in writing, may prepare its own defense, with Developer paying the reasonable costs of City’s defense. Such costs shall include attorneys’ fees and other related costs of defense, including without limitation, travel, postage, photocopies, and City staff costs. (c) Developer shall not be required to pay, or perform under the terms of, any settlement unless the settlement is approved in advance by Developer. City must approve any settlement affecting the rights and obligations of City. (d) In all cases, regardless of whether City or Developer defends the City, Developer shall indemnify City for any judgment, order, or settlement rendered as a result of any claim, action, or proceeding arising from the approval. (e) At no time shall Developer file any complaint, cross complaint, or any offensive pleadings in an action arising out of City’s approval without first obtaining City’s written approval.
(f) Developer shall pay to City, within thirty (30) calendar days upon written demand, any amount owed to City as a result of City incurring costs or expenses due to its defense under the terms of this Section 6.5.
Section 6.6. Covenant of Good Faith and Fair Dealing. Time is of the essence in achieving agreement on the form and substance of all documents, their execution, implementation actions including the grant of approvals and permits, formation of special
districts, design, construction and operation of infrastructure, provision of services, and accomplishment of all further undertakings by all parties as contemplated by this Agreement. Implicit in this Agreement are all the covenants of good faith and fair dealing recognized under California law. All parties pledge and agree to use their best efforts to reach accord with respect to all details required to effect the intentions evidenced by this Agreement.
Section 6.7. Cooperation in Project Implementation. City further agrees to cooperate in the implementation of the Project. Cooperation is defined as the timely review, permitting and inspection of all on-site and off-site buildings, improvements, and finalized construction and maintenance of public facilities as provided in Section 3.3 of this Agreement.
Section 6.8. Standard Terms and Conditions.
(a) Venue. Venue for all legal proceedings shall be in the Superior Court for the County of Madera.
(b) Waiver. A waiver by any party of any breach of any term, covenant or condition herein contained or a waiver of any right or remedy of such party available hereunder at law or in equity shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained or of any continued or subsequent right to the same right or remedy. No party shall be deemed to have made any such waiver unless it is in writing and signed by the party so waiving. (c) Completeness of Instrument. This Agreement, together with its specific references and attachments, constitutes all of the agreements, understandings, representations, conditions, warranties and covenants made by and between the parties hereto. Unless set forth herein, neither party shall be liable for any representations made, express or implied.
(d) Supersedes Prior Agreements. It is the intention of the parties hereto that this Agreement shall supersede any and all prior agreements, discussions, commitments, representations or agreements, written or oral, between the parties hereto with respect to the Subject Property and rights and obligations contained herein. (e) Captions. The captions of this Agreement are for convenience in reference only and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
(f) Number and Gender. In this Agreement, the neutral gender includes the feminine and masculine, and the singular includes the plural. The word “person” includes corporations, partnerships, firms or associations, wherever the context so requires.
(g) Mandatory and Permissive. “Shall” and “will” and “agrees” are mandatory as used in this Agreement. “May” is permissive as used in this Agreement.
(h) Term Includes Extensions. All references to the term of this Agreement or the shall include any extension of such term. (i) Successors and Assigns. All representations, covenants and warranties specifically set forth in this Agreement, by or on behalf of, or for the benefit of any or all of the parties hereto, shall be binding upon and inure to the benefit of such party, its successors and assigns.
(j) Modifications. No modification or waiver of any provision of this Agreement or its attached exhibits shall be effective unless such waiver or modification is in writing, signed by all parties, and then shall be effective only for the period and on the condition, and for the specific instance for which given. (k) Counterparts. This Agreement may be executed simultaneously and in several counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.
(l) Other Documents. The parties agree that they shall cooperate in good faith to accomplish the object of this Agreement and to that end, agree to execute and deliver such other and further instruments and documents as may be necessary and convenient to the fulfillment of these purposes.
(m) Partial Invalidity. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provision and/or provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. (n) Controlling Law. The validity, interpretation and performance of this Agreement shall be controlled by and construed under the laws of the State of California.
(o) Time is of the Essence. Time is of the essence of this Agreement and each covenant, term, condition and provision herein. (p) Authority. All parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement in the names, titles and capacities herein stated and on behalf of any entities, persons, estates or firms represented or purported to be represented by such entity(s), person(s), estate(s) or firm(s) and that all formal requirements necessary or required by any state and/or federal law in order to enter into this Agreement have been fully complied with. Further, by entering into this Agreement, neither party hereto shall have breached the terms or conditions of any other contract or agreement to which such party is obligated, which such breach would have a material effect hereon.
(q) Document Preparation. This Agreement will not be construed against the party preparing it, but will be construed as if prepared by all parties.
(r) Advice of Legal Counsel. Each party acknowledges that it has reviewed this Agreement with its own legal counsel, and based upon the advice of that counsel, freely entered into this Agreement.
(s) Attorneys’ Fees and Costs. If any action at law or in equity, including an action for declaratory relief or any arbitration, is brought to enforce or interpret provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which such party may be entitled. (t) Time Periods. All time periods are measured as calendar days, unless a different intent is clearly stated.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below, as authorized by Ordinance No. ______ adopted by the City Council.
Date: _____________________, 2023
[Remainder of page intentionally left blank; signatures appear on the following page]
CITY:
CITY OF CHOWCHILLA,
a municipal corporation
By:
Ray Barragan, Mayor
ATTEST:
Joann McClendon, City Clerk
APPROVED AS TO CONTENT:
Community and Economic Development Department
By:
Mark E. Hamilton, Director of Community and Economic Development APPROVED AS TO FORM:
By:
Mary Lerner, City Attorney
DEVELOPER:
CENTURY COMMUNITIES OF CALIFORNIA, LCC
a Delaware limited liability company
By:
W. Allen Bennett, Vice President
Exhibit A
Tentative Subdivision Map 17-0006
Tentative Subdivision Map 17-0006, which consists of one page, appears on the following page.
Exhibit B
City Council Resolution No. 24-19 and
Tentative Subdivision Map 17-0006 Conditions of Approval City Council Resolution No. 24-19 and Tentative Subdivision Map 17-0006 Conditions of Approval, which consist in the aggregate of 18 pages, appear beginning on the following page.
Exhibit C
Development Impact Fees
Single – Family Residential
Fee Type Costs
Park Facilities $ 3,841.00
Fire Facilities $ 1,023.00
Police Facilities $ 1,061.00
Street Facilities $ 3,136.00
Traffic Signal Facilities $ 406.00
Public Buildings $ 2,196.00
Community and Recreation Facilities $ 569.00
Water Facilities $ 2,511.00
Sewer Facilities $ 2,293.00
Storm Drainage Impact Fees (S.D.I. Fee x Total Acreage / No. of Units)** $ 1,862.60
Total Single-Family Residential Impact Fees: $ 18,898.60 Residential Development Impact Fee 50% Reduction: Valid July 1, 2023 - June 30, 2025 $ 9,449.30
*The Development Fee Reduction Program is valid from July 1, 2023 - June 30, 2025. The Development Impact Fees will revert to 100% of the 'Total Single-Family Residential Impact Fees' if program is not extended or a new incentive package is considered by City Council prior to the programs' expiration.
Robertson Blvd. & Washington Dr. Intersection in-lieu fee:
One-time fee to be paid prior to issuance of an Encroachment Permit. $663,000.00
Quimby Act Fee Costs / In-lieu fee per Unit
Single Family Residential**
**This fee is not eligible for the Development Impact Fee Reduction $2,323.20 Storm Drainage Impact Fees Costs / In-lieu fee per Acre ***General Plan: Residential - Medium Density (MDR & MHDR) Zoning: Medium Density Residential – 5,000 SF (R-M-5)
Medium Density Residential – 6,000 SF (R-M-6)
Medium High Density Residential (R-MH)
***Fee Calculation included above within the Itemized list of Development Impact Fees Eligible for Residential Development Impact Fee Reduction.
$9,710.00
"Net" Cost per Unit (DIF, Quimby Act, Storm Drainage):
(Valid July 1, 2023 - June 30, 2025) $11,772.50
Total Cost per Unit (DIF, Quimby Act, Storm Drainage):
(Valid after July 1, 2025) $21,221.80
4874-6739-4439, v. 1
REPORT TO THE CITY COUNCIL
Item 6.1
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: November 14, 2023
AGENDA SECTION: New Business
SUBJECT: Resolution Awarding Construction Contract for the Robertson/Kings & Robertson/Trinity Alley Paving Project, Federal Project No. CML-5258(041), to Avison Construction, Inc. in the Amount of $688,086.00 Authorizing the City Administrator or Designee to Execute All Related Documents Thereto and Amending the Fiscal Year 2023/24 City Budget
PREPARED BY: Jason Rogers, Director of Public Works
ATTACHMENTS: Resolution
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
City Council adopt a resolution awarding the construction contract for the Robertson/Kings & Robertson/Trinity Alley Paving Project, Federal Project No. CML-5258(041), to Avison Construction, Inc. in the Amount of $688,086.00 and authorizing the City Administrator to execute the contract on behalf of the City and amend the City of Chowchilla Fiscal Year (FY) 2023/24 Budget.
BACKGROUND:
The Robertson/Kings & Robertson/Trinity Alley Paving Project, Federal Project No. CML-5258(041), will consist of the paving of the alley between Robertson Boulevard and Kings Avenue from 7th to 8th and 9th to 13th, as well as the alley between Robertson Boulevard and Trinity Avenue from 6th to 7th and northeast of 8th to 11th. The project will also include concrete valley gutters for improved alley drainage and concrete alley approaches with an ADA accessible path of travel around the approaches. The City began advertising the Project for bids on May 17, 2023. The Notice Inviting Bids was published in the Madera Tribune, posted on OpenGov, and submitted to the appropriate construction trade journals and builder’s exchanges.
REASON FOR RECOMMENDATION:
Bids were received from four contractors on June 8, 2023, as follows:
Contractor Base Bid
Tosted Asphalt $513,083.39
Avison Construction, Inc. $688,086.00
Terra West Construction $692,918.00
Cal Valley Construction $951,128.50
The Engineer’s Estimate was $580,000. This Project is being funded in part by Federal Congestion Mitigation and Air Quality Improvement (CMAQ) program funds. As a requirement of this funding, the City must establish a Disadvantaged Business Enterprise (DBE) participation goal that bidders must meet, or bidders must demonstrate that they made a Good Faith Effort (GFE) in attempting to meet the established DBE goal. The DBE goal for this Project was 17%. The bid submitted by Tosted Asphalt committed to DBE participation in the amount of 6.80%. Since they did not meet the DBE goal, they are required to provide evidence that they made a GFE to try and meet the goal. Staff reviewed the GFE documentation submitted by Tosted Asphalt and determined that the GFE made was not sufficient to comply with the requirements of the CMAQ funding. As such, Staff has determined that the bid submitted by Tosted Asphalt is nonresponsive. Tosted Asphalt was provided with the opportunity for Administrative Reconsideration, which they declined.
Since the bid submitted by Tosted Asphalt was deemed non-responsive, Staff reviewed the second lowest bid, submitted by Avison Construction, Inc., along with information regarding their previous work experience. Avison Construction, Inc. has committed to DBE participation in the amount of 7.00%.
Although Avison also did not meet the DBE goal, Staff has reviewed their GFE and determined that it was sufficient. Based on review, Staff has determined the bid received to be responsive and Avison Construction, Inc. to be a responsible contractor.
FISCAL IMPACT:
The construction costs and available funding as approved in the FY 2023/24 City Budget for the Project are summarized in the following table.
Amount
Construction Costs
Contract $688,086.00
Contingency (10%) $68,809.00
CM/Inspection/Testing (15% of
Construction incl. Contingency)
$113,534.00
Total Construction $870,429.00
Available Construction Funding
CMAQ $648,000.00
Gas Tax $83,683.00
Total Available Construction Funding $731,683.00
As there is a deficit in funding, the project requires the budget be amended in order to fully fund the project.
The Humboldt Street Improvement Project, which was recently completed, experienced savings of approximately $736,000. As such, staff is requesting Council amend the budget as follows.
Amount Requested
Change
Amended Total
Available Construction Funding
CMAQ $648,000.00 $0.00 $648,000.00
Measure T $0.00 $90,000.00 $90,000.00
Gas Tax $83,683.00 $48,746.00 $132,429.00
Total Available Construction Funding $731,683.00 $138,746.00 $870,429.00 ALTERNATIVES:
City Council may reject all bids.
ACTIONS FOLLOWING APPROVAL:
1. Finance will amend the FY 23/24 City Budget
2. Execution of Contract, Pre-Construction Meeting and Notice to Proceed.
3. Construction (60 working days)
COUNCIL RESOLUTION NO # -23
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA
AWARDING THE CONSTRUCTION CONTRACT FOR THE ROBERTSON/KINGS & ROBERTSON/TRINITY ALLEY PAVING PROJECT, FEDERAL PROJECT NO. CML-5258(041), TO AVISON CONSTRUCTION, INC. IN THE AMOUNT OF $688,086.00, AUTHORIZING THE CITY
ADMINISTRATOR OR DESIGNEE TO EXECUTE ALL RELATED DOCUMENTS THERETO AND AMENDING THE FISCAL YEAR 2023/24 CITY BUDGET.
WHEREAS, the Invitation to Bid for the Robertson/Kings & Robertson/Trinity Alley Paving Project, Federal Project No. CML-5258(041), (the “Project”) was published in the Madera Tribune on May 17, 2023 and was sent electronically to all construction trade journals specified for the City by the California Uniform Construction Cost Accounting Commission in accordance with the City’s Formal Contract Procedures and California Public Contract Code Section 22037; and
WHEREAS, the following bids for the Project were received and publicly opened and read aloud at the Chowchilla City Hall on June 8, 2023, at 3:00 p.m.:
Contractor Base Bid
Tosted Asphalt $513,083.39
Avison Construction, Inc. $688,086.00
Terra West Construction $692,918.00
Cal Valley Construction $951,128.50
WHEREAS, the City Engineer’s Estimate was $580,000.00; and WHEREAS, the Project is being funded in part with Federal Congestion Mitigation and Air Quality Improvement (CMAQ) program funds and as a requirement of the CMAQ program funds bidders must meet the Disadvantaged Business Enterprise (DBE) participation percentage goal established by the City or demonstrate that they made a Good Faith Effort (GFE) in attempting to meet said goal; and WHEREAS, the bid submitted by Tosted Asphalt Inc. did not meet the DBE goal and furthermore did not provide sufficient evidence that Tosted Asphalt Inc. made a satisfactory GFE in an attempt to meet the DBE goal and as such the bid submitted by Tosted Asphalt Inc. is deemed non-responsive.
WHEREAS, the City has determined the bid submitted by Avison Construction, Inc. to be responsive and Avison Construction, Inc. to be a responsible contractor; and WHEREAS, the City Engineer recommends the Project be awarded to Avison Construction, Inc; and
WHEREAS, on June 27, 2023, the Chowchilla City Council adopted fiscal year 2023-2024 Operating and Capital Budget with Resolution #50-23; and WHEREAS, per Resolution #70-16, Item #5 and Item #6 states, authority to increase appropriations within a fund by an amount not to exceed $50,000 shall rest with the City Administrator and Authority to transfer appropriations between funds will be represented by resolutions duly approved by the City Council, and
WHEREAS, the budget transfers between funds and the budget amendment exceeds $50,000 and requires City Council approval, and
WHEREAS, Expenditure and transfer accounts will need to be amended within the Project budget, Measure T and Gas Tax Fund budgets in the amount of $138,746 for the Project; and WHEREAS, An adequate fund balance is available in said Funds to allow for said increase of appropriations;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The above recitals are true and correct.
2. The second low bid submitted by Avison Construction, Inc. is responsive.
3. The construction contract for the Project is awarded to Avison Construction, Inc. in the amount of $688,086.00 and contingencies of up to ten percent (10%) as approved by the Public Works Director are authorized.
4. The City Administrator is authorized to execute the contract on behalf of the City of Chowchilla.
5. The Finance Director is authorized to make such other revisions, individual appropriation line-items, changes in summaries, fund totals, grand totals, and other portions of the budget document as necessary to reflect and implement the changes specified in this resolution including the following amendments:
a. Alley Paving Project – Increase $138,746
b. Transfer In Measure T – Increase $90,000
c. Transfer In Gas Tax – Increase $48,746
6. This resolution is effective immediately upon adoption.
PASSED AND ADOPTED by the City Council of the City of Chowchilla this14th day of November, 2023 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Ray Barragan, Mayor
ATTEST:
Joann McClendon, CMC
City Clerk
REPORT TO THE CITY COUNCIL
Item 6.2
CLICK HERE
TO RETURN TO
THE AGENDA
Meeting of: November 14, 2023
AGENDA SECTION: New Business
SUBJECT: Consideration and Adoption of a Resolution Amending the 2023/2024 Salary Scale to Include the Public Works Facilities Supervisor Classification PREPARED BY: Jason Rogers, Director of Public Works
ATTACHMENTS: Resolution
REVIEWED BY
ADMINISTRATOR ☒ REVIEWED BYATTORNEY ☒ REVIEWED BY FINANCE ☒ RECOMMENDATION:
That the City Council adopts a resolution amending the 2023/2024 salary scale to include the Public Works Facilities Supervisor classification.
BACKGROUND:
Currently, the Public Works Department is composed of the following divisions: Water, Wastewater, Streets and Roads, Storm Drain, Airport, Solid Waste and Parks Maintenance. There is currently no Facilities Maintenance division and facilities maintenance is currently performed primarily by Parks Maintenance staff. The City Mid-Management Employee Association bargaining unit has reviewed and approved adding the position at the proposed Range MM40 for the Public Works Facilities Supervisor and is typical with similar-sized agencies and other supervisor positions within Public Works divisions.
REASON FOR RECOMMENDATION:
Due to the continued need for facilities maintenance of City properties, the Director of Public Works would like to begin the process of creating a dedicated division for the maintenance of City owned facilities. The Public Works Facilities Supervisor is considered a supervisory level with responsibility for planning, coordinating and implementing the operation, maintenance, inspection of City-owned facilities, and supervision of potential future facility workers.
FISCAL IMPACT:
If approved, the salary for a MM40 position will be added to the FY 23/24 budget at an annual salary of $59,238 - $ 75,878. This allocated position has a starting salary that is currently $8,673 more than the currently budgeted Parks and Facilities Worker III. If approved, it will be added to the FY 23/24 budget.
ALTERNATIVES:
Do not approve the additional classification.
ACTIONS FOLLOWING APPROVAL:
Update the salary scale.
COUNCIL RESOLUTION # -23
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHOWCHILLA, CALIFORNIA AMENDING THE 2023/2024 SALARY SCALE TO INCLUDE THE PUBLIC WORKS FACILITIES
SUPERVISOR CLASSIFICATION
WHEREAS, Section 37206 of the Government Code requires City Council to prescribe the time and method of paying salaries and wages of employees of the City; and WHEREAS, from time to time, staff may review the functionality of their department and suggest changes to certain roles and classifications; and
WHEREAS, these changes may affect the City’s salary scale; and, WHEREAS, the Public Works Department has analyzed the needs and requirements needed in order to plan for future growth and its needs; and
WHEREAS, the recommended Public Works Facilities Supervisor classification and pay range best fits the immediate and long-term needs to operate the department.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chowchilla hereby finds, determines and declares the following:
1. The salary scale for the Public Works Facilities Supervisor classification is attached and marked as Exhibit A are hereby added to the City’s current Salary Scale.
2. This resolution is effective immediately upon adoption. * * * * *
PASSED AND ADOPTED by the City Council of the City of Chowchilla this 14th day of November, 2024 by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:
Mayor Ray Barragan
ATTEST:
Joann McClendon, CMC
City Clerk
EXHIBIT A
Public Works Facilities Supervisor:
Grade A A ½ B B ½ C C ½ D D ½ E E ½ F
MM40 28.48 29.19 29.92 30.67 31.44 32.23 33.04 33.87 34.72 35.59 36.48