City of Sacramento
City Council - 5PM Report
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www.cityofsacramento.org
File ID: 2023-00009 10/3/2023 Consent Item 6.
Standard Forms for the Construction of Panhandle Backbone Infrastructure and Public Facilities
File ID: 2023-00009
Location: District 1, Represented by Councilmember Kaplan Recommendation: 1) Adopt a Resolution a) approving standard-form: i) Reimbursement/Credit Agreement for Panhandle Backbone Infrastructure and Public Facilities; and ii) Panhandle Fee Credits Certificate of Assignment; and b) authorizing the City Manager or the City Manager’s designees to sign and deliver the standard-forms for specific projects within the area covered by the Panhandle Planned Unit Development Area upon approval as to legal form by the City Attorney’s Office.
Contact: Mary Jean Rodriguez, Senior Development Project Manager, (916) 808-1980, [email protected]; Sheri Smith, Special Districts Manager, (916) 808-7204, [email protected], Department of Finance
Presenter: None
Attachments:
1-Description/Analysis
2-Resolution
3-Exhibit A (Reimbursement/Credit Agreement)
4-Exhibit B (Panhandle Fee Credits Certificate of Assignment) Description/Analysis
Issue Detail: Development projects in the Panhandle Planned Unit Development (PUD) area are subject to the Panhandle Development Impact Fee (PHIF), as per chapter 18.56 of the Sacramento City Code. The PHIF will be collected by the City for each building permit issued to fund the construction or reimbursement of the developers that construct, or advance-fund construction of the backbone infrastructure and public facilities needed to serve the PUD as detailed in the PUD Public Facilities Finance Plan and Development Impact Fee Nexus Study approved by City Council Resolution No. 2022-0167 on May 31, 2022, as it may be amended from time to time (Finance Plan).
Staff is seeking Council approval of the attached standard-forms, the Reimbursement/Credit
File ID: 2023-00009 10/3/2023 Consent Item 6.
Agreement for Panhandle Backbone Infrastructure and Public Facilities (Reimbursement Agreement), and the Panhandle Fee Credits Certificate of Assignment (Certificate); and authorization for the City Manager to sign and deliver Reimbursement Agreements for individual development projects within the PUD area even if they exceed $250,000; and (c) authorization for the City Manager to sign Certificates to indicate the City’s consent to the assignment of PHIF credits.
Standard-forms are used to implement the PHIF program and to promote efficiency and uniformity in administration. A Reimbursement Agreement will typically involve amounts that exceed the City Manager’s contracting authority under the Sacramento City Code, so most Reimbursement Agreements would require Council review and approval. Approval of the attached resolution allows for the efficient administration of routine development projects by delegating authority to City Manager to sign standard-forms. The use of standard-forms has been proven to save time for developers and the City in the North Natomas, Railyards, Delta Shores, and Jacinto Creek Planning Areas. Staff will bring any standard-form that must be materially modified due to the project’s circumstances to Council for review and approval.
Policy Considerations: Authorizing the City Manager and the City Manager’s designee to execute standard forms for specific projects complies with City Code chapter 18.56 related to the reimbursement of backbone infrastructure and public facilities funded by PHIF revenue.
Environmental Considerations: Under the CEQA Guidelines, the approval of standard-form documents does not constitute a project because it merely creates a funding mechanism unrelated to a specific project and is therefore exempt from review (14 Cal. Code Regs. § 15378(b)(4)). Infrastructure projects or other public facility projects funded by the PHIF will be evaluated under CEQA before construction is authorized.
In any event, on July 3, 2018, by Resolution No. 2018-0280, Council certified the Environmental Impact Report and adopted the Mitigation Monitoring Program for the Panhandle Annexation and Planned Unit Development Project (P16-013) (State Clearinghouse No. 2016042074). This environmental review analyzed the potential impacts of the infrastructure that could be funded through the standard-form Reimbursement Agreement.
Sustainability: Not applicable.
Commission/Committee Action: None.
Rationale for Recommendation: Adopting the proposed standard-form documents aligns with the Finance Plan's objective of promptly constructing or acquiring backbone infrastructure and public facilities. This will be achieved by avoiding unnecessary delays in negotiating the terms of specific reimbursement and credit agreements and avoiding taking documents back to the City Council for
File ID: 2023-00009 10/3/2023 Consent Item 6.
approval. This approach is consistent with other planning areas with financing plans and will help streamline the reimbursement and credit approval process. Furthermore, instituting standard rules and requirements will make the fee administration process more efficient, providing greater consistency and certainty for developers and staff adhering to a uniform policy for reimbursements and credits.
Financial Considerations: Reimbursements and fee credits provided under the standard-form Reimbursement Agreement are funded by revenue collected as part of the PHIF program. Fees are collected solely within the boundaries of the PUD Area and may be used only for the purposes outlined in the Finance Plan. There is no impact on the City’s other funds.
Local Business Enterprise (LBE): Not applicable.
RESOLUTION NO. 2023-___
Adopted by the Sacramento City Council
RESOLUTION APPROVING AND ADOPTING STANDARD FORM DOCUMENTS
FOR USE BY THE CITY MANAGER FOR THE PANHANDLE PLANNED UNIT
DEVELOPMENT PROJECTS
BACKGROUND
A. Attached to this resolution as Exhibits A and B, respectively, are a standard-form Reimbursement/Credit Agreement for Panhandle Backbone Infrastructure and Public Facilities (“Reimbursement Agreement”), and a standard-form Panhandle Fee Credits Certificate of Assignment (“Certificate”). The purposes of these standard forms are twofold: 1) to implement the Panhandle Planned Unit Development Public Facilities Finance Plan and Development Impact Fee Nexus Study (dated May 2022, and approved by the City Council on May 31, 2022, by Resolution No. 2022-0167), as amended; and 2) to promote efficiency and uniformity in the administration of Reimbursement Agreements and Certificates.
B. Most of the infrastructure projects and public facilities to which the Reimbursement Agreement will pertain will involve amounts that exceed the City Manager’s financial authority under the Sacramento City Code, thereby, normally requiring City Council approval.
C. Bringing each Reimbursement Agreement to the City Council for separate approval would require City staff to expend substantial resources, add unnecessarily to the City Council’s agenda, and cause project delays of at least three to four weeks for developers in the Panhandle Planned Unit Development Area (the “PUD Area”).
D. Because the terms of the standard-form Reimbursement Agreement potentially apply to all infrastructure projects and public facilities in the PUD Area, authorizing the City Manager to execute Reimbursement Agreements without the City Council’s separate review and approval will avoid unnecessary expenditures of staff resources and costly project delays for developers.
BASED ON THE FOREGOING RECITALS, THE CITY COUNCIL RESOLVES AS FOLLOWS:
Section 1. The City Council finds that the Background statements are true.
Section 2. The standard-form Reimbursement Agreement, and the standard-form Certificate, attached as Exhibits A and B, are hereby approved for use within the PUD Area.
Section 3. The City Manager and the City Manager’s designees are hereby authorized to do the following on the City’s behalf for eligible development projects within the PUD Area:
(a) Execute Reimbursement Agreements for the expenditure of amounts that normally exceed the City Manager’s contracting authority.
(b) Execute the assignment of fee credits by Certificate when use of a Certificate is appropriate.
Section 4. Changes to the standard-form Reimbursement Agreement, and the standard-form Certificate will be valid only if approved by a resolution, except as follows: the City Manager and the City Manager’s designees, with the approval of the City Attorney, may approve minor, non- substantive changes needed solely to conform the standard forms or their exhibits to site-specific needs.
Section 5. In their discretion, the City Manager may bring a Reimbursement Agreement for a specific project to the City Council for separate review and approval.
Section 6. Exhibits A and B are part of this resolution.
Reimbursement/Credit Agreement | Page 1
Reimbursement/Credit Agreement
for Construction of Panhandle Backbone Infrastructure and Public Facilities (Insert Brief Project Description)
This Agreement dated ___________, [], for purposes of identification only, is between the CITY OF SACRAMENTO , a municipal corporation and charter city (the “ City”); and [], a [] (“Landowner”).
Background
A. Landowner owns the land described in Exhibit “A,” attached hereto and incorporated herein by this reference (the “Property”).
B. Development of the Property is subject to payment of the Panhandle Development Impact Fee (the “Impact Fee”) in accordance with chapter 18.56 of the Sacramento City Code (the “Fee Ordinance”) and will require the construction of necessary backbone infrastructure and public facilities as detailed in the Panhandle Planned Unit Development Public Facilities Finance Plan and Development Impact Fee Nexus Study approved by City Council Resolution No. 2022 -0167 on May 31, 2022 as it may be amended from time to time (“Finance Plan”).
C. Landowner desires to construct the elements of Panhandle backbone infrastructure and public facilities (the “Project”) as specified and depicted in Exhibit “B,” attached hereto and incorporated herein by this reference. The Project has been or will be constructed pursuant to plans approved by City, and the actual costs of construction of the Project are to be the result of a bidding process as approved in writing in advance by City in accordance with the Competitive Bidding Guidelines in Exhibit “C” attached hereto.
D. Subject to the credits against and reimbursements from the Impact Fee as provided herein, Landowner is willing to construct the Project and to fund the entire costs of such construction. For purposes of this Agreement, “Project Costs” means costs related to all contracts for the construction of the Project, including change orders thereto, and costs associated with all other contracts for professional and other services necessary, in City’s judgment, to implement and complete construction, together with planning and design costs and right-of-way acquisition costs, if any, associated with the Project. Project Costs shall include but not be limited to the engineering estimates and the Project elements included therein, which estimates are set forth in Exhibit “B”; construction inspection fees; and applicable plan-check fees, inspection fees, labor compliance costs, and Habitat Conservation Fees.
E. Because the Project is designated for funding by the Impact Fee, the Project is eligible for, and City desires to provide credits against and reimbursement from, the Impact Fee for Landowner’s eligible (as determined by City in its discretion) and actual Project Costs, in accordance with the Fee Ordinance and subject to the terms and conditions of this Agreement.
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Now, therefore, in consideration of the foregoing and the mutual promises contained herein, City and Landowner hereby agree as follows:
Article 1. Construction of Project
1.1 Construction. Landowner agrees to construct the Project, or cause it to be constructed, and to convey the Project, along with all interests in real property necessary for the operation, maintenance, and ownership thereof, to City or appropriate other public entities or utilities.
1.2 Plans and Specifications. Landowner represents that it has obtained or will obtain approval of the plans and specifications for the Project from all appropriate departments of City and from any other public entity or public utility from which such approval must be obtained.
The terms “Plans” and “Specifications” are defined in the Competitive Bidding Guidelines attached hereto as Exhibit “C.” The Plans and Specifications include the final construction drawings prepared by the Project design engineer and its consultant s and documents prepared by the design engineer or its consultants that describe in detail for construction- contract purposes the material and workmanship required to complete the Project .
Landowner covenants that the Project will be constructed in compliance with such approved Plans and Specifications and the adopted City “Standard Specifications for Public Construction,” subject to minor change orders as may be required that are substantially consistent with such Plans and Specifications. All Plans and Specifications for the Project shall be provided by Landowner to the Engineering Services Division Manager of the City’s Department of Public Works or the Engineering Services Division Manager’s designee (“City Engineer”) and must be approved by the City Engineer before the Project is bid, per the bidding guidelines set forth in Exhibit “C” attached hereto. City agrees to use its best efforts and due diligence to review and approve such plans or provide comments thereto regarding any necessary corrections thereto, in a prompt and timely manner.
1.2.1 The City Standard Specifications for Public Construction shall be those in effect at the time of final approval by City of the design of the Project.
1.2.2 Landowner shall provide a site-construction superintendent (“Site Superintendent”) and City shall provide a City project manager (“City Project Manager”) who will serve as their respective points of contact with respect to such construction, who will be onsite as necessary, and who will generally be available by telephone or otherwise at all reasonable times.
(a) The Site Superintendent shall have complete authority over the construction contractors and all subcontractors, with authority to order stoppage of work and minor changes to the work in order to comply with the Plans and Specifications (as defined in Attachment 3 to Exhibit B, attached hereto) .
The Site Superintendent may also, but need not have authority to, order minor design changes to meet unanticipated field conditions, provided that the same are consistent with the Plans and Specifications.
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(b) The City Project Manager shall have complete authority over the City’s construction inspectors, with authority to determine whether the work complies with the Plans and Specifications. The City Project Manager may also, but need not have authority to, approve minor design changes to meet unanticipated field conditions, provided that the same are consistent with the Plans and Specifications.
(c) [Name] is designated by Landowner as the Site Superintendent, until Landowner notifies City’s Public Works Department, Development Engineering Division, of his or her replacement. [Name] is designated by City as the City Project Manager, until the City Engineer notifies Landowner of his or her replacement.
1.3 Commencement and Completion of Project. Subject to the provisions of Section 6.3 below, including, without limitation, the effect of inclement weather on Landowner’s ability to commence or proceed with construction, Landowner shall commence the construction of the Project within six months of the final approval of the Plans by the City and thereafter shall diligently work to complete such construction in a timely and efficient manner. The contract for such construction shall be let as the result of a competitive bidding process in accordance with the “Competitive Bidding Guidelines” specified in Exhibit “C” attached hereto.
1.3.1 Either Landowner or the Site Superintendent shall schedule and conduct a pre - construction meeting before work on the Project begins. The pre -construction meeting must be attended by Landowner, the Site Superintendent , and the contractor. The City Engineer , representatives of each agency issuing permits, representatives of affected utilities, and other interested parties must receive written notice of the time, place, and date of the pre-construction meeting at least five days before the meeting.
1.3.2 The City Engineer must review and approve in advance any revisions to the Plans and Specifications.
1.3.3 The construction will be considered complete when the Project is fully completed, when the City has accepted the Project in accordance with the provision s of this Agreement, and when Landowner has obtained the following, as applicable:
(a) Approval of the City if a grading permit is required. (b) Approval of all infrastructure and facilities shown on the Plans and Specifications by the affected utility companies or other affected departments of the City or the County of Sacramento.
(c) Approval of the City of all erosion -control improvements required by the Plans and Specifications or the grading permit.
(d) Approval by the City’s Licensed Land Surveyor of all monumentation.
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(e) Approval of the City of all street improvements (e.g., storm drains, street lighting, traffic signals) shown on the Plans through issuance of an inspection-completion report.
1.4 Inspection. Landowner covenants that City and any other public entities or public utilities to whom any portion of the Project will be conveyed will be permitted to inspect the Project and all inspections will be conducted in accordance with City policy . City agrees to make inspectors available for inspection of the Project during such construction within at least 48 hours of request therefor from Landowner.
1.4.1 Should a City inspector (the “Inspector”) find any nonconformance or noncompliance with the Plans and Specifications, the Inspector shall notify the City Project Manager and the Site Superintendent of such nonconformance or noncompliance, and the City Project Manager and the Site Superintendent shall jointly determine the nature of the corrective action to be taken. Corrective action taken pursuant to an understanding between the City Project Manager and the Site Superintendent shall be in writing and deemed to be in accordance with the Plans and Specifications.
1.4.2 If the City Project Manager and the Site Superintendent are unable to agree upon the corrective action to be taken, the City Project Manager may order that work on the nonconforming or noncomplying item(s) or area(s) be stopped. If the City Project Manager orders work to stop, then—
(a) Landowner shall comply with all requirements of any stop work order and must obtain City’s approval before work can resume on that item(s) or in that area(s); and
(b) the City Project Manager, the Site Superintendent, and such other representatives of City and Landowner as are necessary or appropriate to evaluate, discuss, and resolve the situation shall promptly meet and confer regarding the measures necessary to correct the nonconforming or noncomplying items(s) or area(s).
1.5 Performance and Payment Bonds. Landowner covenants to comply with all applicable City performance and payment bonding requirements (and such other bonding requirements as may be specified by other public entities and/or public utilities) with respect to the construction of the Project. Landowner may satisfy the obligation to post bonds with an assignment to City of the contractor’s bond or through the posting of bonds, letters of credit, or other security instruments acceptable to City, in accordance with applicable City requirements; provided, however, that all such bonds, letters of credit, or other security instruments must meet all requirements that would apply for security to be posted by a contractor, quantitatively and qualitatively, if City and not Landowner were contracting to construct the Project.
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1.6 Insurance. Landowner must comply with the insurance requirements specified in Exhibit F attached hereto and incorporated herein. The amounts of insurance for this Agreement were determined by the Special Districts Manager in consultation with the City’s Risk Manager.
1.7 Contracts and Change Orders. Landowner shall be responsible for entering into all contracts and any change orders required for the construction of the Project.
1.7.1 So long as the contracts and change orders are substantially consistent with the Plans and Specifications approved by the City , the City’s Standard Specifications for Public Construction, and all requirements specified in the Competitive Bidding Guidelines attached hereto as Exhibit “C ,” including without limitation the construction contract requirements stated in Section 2.5(d) of the Competitive Bidding Guidelines, Landowner shall not be obligated to obtain the approval of the City Engineer therefor; provided, however, that any change orders that will increase the cost of the Project by more than 10% shall be subject to the prior approval of the City Engineer . City Project Manager’s approval shall not be required for those change orders which do not require approval of the City Engineer.
1.7.2 Except as otherwise provided in Section1.7.3, Landowner agrees to make changes in the construction of the Project as requested by City.
(a) As to changes which are necessary in order to comply with approved Plans and Specifications, Landowner shall pay for all such changes.
(b) City agrees to pay Landowner for changes requested by it when such changes are discretionary changes requested by City; provided, however, that Landowner shall provide a written statement of the estimated cost of the change, prior to constructing such change. If Landowner fails to provide a written statement of the estimated cost of the change within 10 days following receipt of a written request from City for such statement made after the nature of the change is finally determined, Landowner shall make such change and City shall not be required to pay for such change.
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1.7.3 Except for those changes that are necessary to comply with the City -approved Plans and Specifications, Landowner shall not be obligated to make changes requested by City where any one of the following applies:
(a) the same would result in unreasonable delay to the Project;
(b) City has failed to approve the estimated cost before construction of the change would otherwise begin; or
(c) the change would increase the cost of the Project beyond the sum of (1)the City-approved budget for the Project; plus (2)the additional funds City has agreed to pay pursuant to Section1.7.2 above.
Article 2. City Acceptance; Conveyance of Project
2.1 Acceptance and Conveyance. When Landowner completes construction of the Project and the Project has been formally accepted by City, the Project shall become the property of City. Upon such completion, Landowner shall take all actions necessary to convey to and vest in City full, complete, and clear title in the Project and in all of the underlying real property interests (easement and/or fee), including those necessary for maintenance and access. City will not formally accept the Project unless and until such title has been conveyed to City. For purposes of this Agreement, City acceptance means final completion in accordance with the approved Plans and Specifications for the Project, which has been finally inspected and approved by City for acceptance into its infrastructure system, as evidenced by a written statement or letter to that effect signed by or on behalf of City.
2.2. Release of Liens. Upon completion, Landowner shall provide, in form satisfactory to the City Engineer, evidence that all of the costs of the Project have been fully paid, including all lien claims. Upon request of the City Engineer, Landowner shall provide lien releases under California Civil Code sections 8132, 8134, 8136, and 8138, as specified in the request , to assure that payment of any outstanding claims of Landowner’s contractors, subcontractors, and suppliers have been paid.
2.3 Indemnification.
2.3.1 Indemnification by Landowner. Subject to the provisions of this Section 2.3, Landowner agrees and covenants to fully indemnify, defend, and hold harmless City and City’s elective and appointive boards, commissions, officers, employees, and agents from and against any and all liabilities, penalties, losses, damages, costs, expenses (including reasonable attorneys’ fees, whether for outside counsel or the City Attorney), causes of action, claims, or judgments (collectively, “Claims”) arising by reason of any death, bodily injury, personal injury, property damage, or violation of any law or regulation to the extent arising from any actions or omissions in connection with the design, construction, operation, maintenance, or repair of the Project by any of the following: Landowner; any of Landowner’s engineers, contractors, or subcontractors; or any other person or entity employed Reimbursement/Credit Agreement | Page 7
by or acting on behalf of or as the authorized agent for Landowner or any of Landowner’s engineers, contractors, or subcontractors. Provided, however, that Landowner shall not be liable hereunder to indemnify, defend, or hold harmless City and City’s elective and appointive boards, commissions, officers, employees, and agents against Claims alleging sole and active negligence of City in its functions of design review, approval, or construction inspection in connection with the Project; provided further, that nothing in this Agreement shall be construed as a waiver by City of any immunity or defense it may have relating to any such Claim, including without limitation immunity or defenses relating to design review and/or approval and/or construction inspection.
2.3.2 Indemnification Regarding Hazardous Substances. Landowner further agrees and covenants to fully indemnify, defend, and hold harmless City and City’s elective and appointive boards, commissions, officers, employees, and agents from and against all Claims arising by reason of any death, bodily injury, personal injury, property damage, or damage to the environment to the extent arising from any use, storage, treatment, transportation, release, or disposal on, about, or around the property on which the Project will be located Property of any Hazardous Substances, as defined in Exhibit “D,” attached hereto and incorporated herein by this reference, by any person or entity (except persons or entities acting on City’s behalf or under City’s control), occurring on or at any time prior to the date the Project and the associated real property interests are conveyed to City as provided in this Agreement. The foregoing indemnification obligation shall not apply to the incorporation of building materials as part of the Project, provided that such incorporation is performed in accordance with applicable laws and is not in violation of Environmental Laws in effect at the time of such incorporation.
2.3.3 Indemnification Regarding Application of Credits and Reimbursements.
Landowner further agrees and covenants to fully indemnify, defend, and hold harmless City and City’s elective and appointive boards, commissions, officers, employees, and agents from and against all liabilities, penalties, losses, damages, costs, expenses (including reasonable attorneys’ fees, whether for outside counsel or the City Attorney), causes of action, claims, or judgments (collectively, “Claims”) arising by reason of any death, bodily injury, personal injury, injury to property interests, property damage, or violation of any law or regulation to the extent arising from any actions or omissions in connection with the application or calculation of credits and/or reimbursement authorized by City pursuant to this Agreement.
2.3.4 Duration of Indemnification Obligations. The indemnification and hold harmless agreement made by Landowner in Section 2.3.1 above, with respect to the Project, and/or each part thereof constructed by Landowner, shall expire on the date which is three years after the completion of the Project and acceptance thereof by City (hereafter the “Expiration Date”), provided that Section 2.3.1 above shall not expire and shall remain in effect with respect to any Claims that are made, initiated, claimed, filed, or assessed at any time prior to the Expiration Reimbursement/Credit Agreement | Page 8
Date, or which relate to (directly or indirectly) any such Claims. The indemnification and hold harmless agreement made by Landowner in Section
2.3.2 above shall survive the termination of this Agreement until the date which is two years after the completion of the Project and acceptance thereof by City.
Section 2.3.2 above shall not expire, however, and shall remain in effect with respect to any Claims that are made, initiated, claimed, filed, or assessed at any time prior to completion of the Project and acceptance thereof by City , or which relate to (directly or indirectly) any such Claims. The provisions of this Section
2.3.4 shall apply only with respect to the indemnification and hold harmless provisions of this Agreement and shall not affect the liability, if any, that Landowner might have under applicable law to the extent Landowner is a contaminator of the Landowner Property. The provisions of this Section 2.3.4 shall not expire and shall survive the termination of this Agreement.
2.3.5 Additional Provisions Regarding Indemnification Obligations. The parties further agree and understand as follows:
(a) City does not waive, and shall not be deemed to waive, any rights against Landowner that it may have by reason of the aforesaid indemnity and hold harmless agreements because of any insurance coverage provided pursuant to Section 1.6.
(b) Except as may otherwise be specifically and expressly provided in Section
2.3.1 relating to Claims based upon allegations of sole and active negligence on the part of City, the aforesaid indemnity and hold harmless agreements shall not be limited or waived in any way based upon the fact that City has or shall have prepared, supplied, or approved of plans and/or specifications for the Project, or has or shall have inspected or failed to inspect construction of the Project.
(c) The scope of the aforesaid indemnity and hold harmless agreements is to be construed broadly and liberally to provide the maximum coverage for City in accordance with their terms.
(d) No specific term or word contained in this section shall be construed as a limitation on the scope of the indemnification and defense rights and obligations of the parties unless specifically so provided.
(e) Landowner shall cause all engineering and construction contracts relating to the Project to require the engineer or contractor to fully and without limitation indemnify, defend, and hold harmless City and its elective and appointive boards, commissions, officers, employees, and agents from and against all Claims arising by reason of any death, bodily injury, personal injury, property damage, or violation of any law or regulation to the extent arising from any actions or omissions of such professional in connection with the design, construction, maintenance, operation, or repair of the Project Reimbursement/Credit Agreement | Page 9
by the engineer or contractor or by any other person or entity employed by or acting as the authorized agent for the engineer or contractor, but only to the extent that such professional or other party has contractual responsibility for a portion or aspect of the Project. For example, a contractor responsible for constructing a portion of the Project would not be held responsible for the design, nor would an engineer who designed a portion of the Project be held responsible for construction not in accordance with the design. So long as the construction contract contains the language contained in Exhibit “E,” attached hereto and incorporated herein by this reference, or other language approved in writing by City, and if City is satisfied in its judgment with the adequacy of the engineer’s or contractor’s insurance, Landowner shall be deemed to have satisfied its obligation under this Section 2.3.5(e) to obtain for the City indemnification and defense obligations on the part of Landowner’s engineers and contractors.
2.3.6 Waiver by Landowner. In addition to Landowner’s obligations to indemnify, hold harmless, and defend City as set forth above, Landowner and its assigns, transferees, and successors waive and release all claims of whatever sort or nature that may arise against City or City’s officers, employees, and agents in connection with the design or construction of the Project. The provisions of this Section 2.3.6 shall not apply to discretionary changes to the Project that were required by City unless all of the following apply: (a) the discretionary changes required by City were approved by Landowner’s engineers; and (b) Landowner’s engineers have provided to Landowner, pursuant to a contract between Landowner and its engineers, errors-and-omissions insurance or similar professional-liability insurance coverage that covers the Project, including all discretionary changes required by City.
2.3.7 Unknown Claims. This waiver and release shall include any and all claims arising under section 1542 of the California Civil Code, which provides that:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, must have materially affected his or her settlement with the debtor or released party.”
Thus, notwithstanding the provisions of section 1542, and for the purpose of implementing a full and complete release, the parties hereto expressly acknowledge that this Agreement is intended to release and extinguish, without limitation, all claims as described in this Section 2.3 that the parties do not know or suspect to exist. The provisions of this Section 2.3 shall survive termination of this Agreement.
2.3.8 Indemnification by City. City further agrees and covenants to fully indemnify, defend, and hold harmless Landowner and Landowner’s directors, members, Reimbursement/Credit Agreement | Page 10
shareholders, partners, officers, employees, and agents from and against all Claims arising by reason of any death, bodily injury, personal injury, property damage, or damage to the environment—
(a) to the extent arising from any City use, storage, treatment, transportation, release, or disposal on, about, or around the portion of the Landowner Property on which the Project or the easements that are required to be or which are transferred to City shall be located, of any Hazardous Substances, as defined in Exhibit “D,” (except persons or entities acting on Landowner’s behalf or under Landowner’s control), occurring on or at any time after the date the Project and the easements are conveyed to City as provided in this Agreement;
(b) arising from any act or omission (including but not limited to those covered by Section 2.3.8(a)) on the part of City or its agents or employees in the use and operation of the Project; or
(c) occurring on or at any time arising from any entry upon the Landowner Property by City or by City’s agents, employees, or contractors pursuant to the provisions of Article 1 of this Agreement.
2.4 Warranty. Landowner warrants the Project as to materials and workmanship for [] year(s) [to be determined in consultation with department(s) with maintenance obligations ] following acceptance of the Project by City, and should any failure of the Project or any portion thereof occur within a period of [] year(s) after final acceptance thereof by City, Landowner shall promptly cause the needed repairs to be made without any expense or cost to City. City is authorized to make repairs if Landowner fails to make, or undertake with due diligence, the necessary repairs within 20 days after it is given written notice of such failure. In case of emergency when delay would cause serious hazard to the public, the necessary repairs may be made by City without prior notice to Landowner. In all cases of failure of the Project within the warranty period where City has taken action in accordance with this paragraph, Landowner shall reimburse City for any and all costs or expenses, direct and indirect, incurred by City, and City may deduct the outstanding amount thereof from any reimbursement due to Landowner hereunder.
Article 3. Reimbursement
3.1 Reimbursement Amount. The reimbursement occurs either when credits are applied against Impact Fees owed by Landowner or when Landowner is reimbursed from Impact Fees collected by City. The method and manner of applying fee credits is set forth more particularly in Article 4 herein. Upon full completion of the Project , and upon City acceptance of the Project, Landowner shall be entitled to reimbursement for the ent ire amount of the eligible (as determined by City in its reasonable discretion) actual Project Costs incurred by Landowner for construction of the Project in accordance with the terms of this Agreement (the “Reimbursement Amount ”), up to the amounts indica ted in the Finance Plan, as updated. The amount of such reimbursement is subject to City review and Reimbursement/Credit Agreement | Page 11
written approval of the Project Costs incurred by Landowner. Landowner shall provide copies of all contracts, change orders, and invoices for the costs of the work and such other documentation as may be requested by City to verify the total Project Costs incurred by Landowner. The Reimbursement Amount, as reduced from time to time by reimbursements paid and credits taken against the Impact Fee pursuant to this Agreement, shall be subject to adjustments for inflation calculated consistent with the provisions of the Finance Plan but shall not otherwise accrue interest. In the event of any conflict between any provision contained in this section and any provision in the Finance Plan, the Finance Plan shall govern. The Reimbursement Amount will be subject to any policies and procedures the City adopts for issuance of the Impact Fee credits (as such policies and procedures may be amended from time to time), other than policies and procedures that have the effect of reducing the Reimbursement Amount.
3.2 Sources for Reimbursement. Nothing in this Agreement shall be construed to create an obligation of, or be attributable to, City’s general or special funds, or any other funds in the hands of City or its accounts now and in the future, except as otherwise expressly provided herein. City’s obligation hereunder to provide reimbursement is limited to the following sources of funds, to the extent funds are available therefrom and not otherwise committed for reimbursement by City to others:
3.2.1 Impact Fees that are paid to City pursuant to the Fee Ordinance for the Panhandle, which fees shall be tracked separately by class codes and maintained by City in a separate Impact Fee account (the “Facilities Account”) and shall not be commingled with any other development or impact fees collected with respect to the Panhandle. Landowner acknowledges that a portion of such Impact Fees, up to but not in excess of 3% of the Impact Fees, will be retained by City to defer City’s cost to administer the Impact Fee program and that an additional share of the Impact Fees, not to exceed 17%, will be retained by City for reimbursement of costs of the Sotnip Trail and cost of the 12’ Powerline Trail within the WAPA Corridor, until these improvements have been completed and fully paid.
3.2.2 Funds generated through public-financing mechanisms consistent with the Finance Plan and created and implemented by City in its sole and exclusive discretion, which include funds for the acquisition of the Project and/or the payment of reimbursement to Landowner for financing some or all of the Project Costs pursuant to this Agreement. In no event shall credits and/or reimbursement from any public financing mechanism(s) exceed Landowner’s eligible (as determined by City in its discretion) actual Project Costs. Nothing in this subsection shall affect (a) the status of Landowner’s right, if any, to protest or otherwise challenge such public-financing mechanisms, in whole or in part, or (b) any previous waiver of such rights.
3.3 Timing of Reimbursement. Upon full completion of the Project and acceptance thereof by City, subject to the reimbursement priority described in Section 3.4 below, City will pay Landowner the amount then available in the Facilities Account for reimbursement up to, but not in excess of, the approved Reimbursement Amount for the Project. Thereafter, on Reimbursement/Credit Agreement | Page 12
a semi-annual basis, City will pay Landowner the amount then available for reimbursement in the Facilities Account, up to the then outstanding Reimbursement Amount for the Project. Landowner shall not be entitled to any Reimbursement Amount or any Fee Credits (as defined in Article 4) until City has provided its written approval of the Project Costs, the Project has been completed, and City has accepted the Project.
3.4 Priority for Reimbursement. Landowner acknowledges and agrees that the timing of reimbursement from the Facilities Account will be subject to the priorities and principles set forth below:
3.4.1 Prior Agreements. City has previously entered into Project Reimbursement/Credit Agreements with other landowners in the Panhandle Finance Plan area for the funding of certain Impact Fee-related improvements, which prior agreements are described in Exhibit “G,” attached hereto and incorporated herein by this reference (“Prior Agreements”). City has committed thereunder to use the first funds received by City under the Fee Ordinance to reimburse those landowners for the financing of such improvements, to the extent such reimbursement is not otherwise satisfied by credits against fees or other public-financing mechanisms.
Accordingly, Landowner agrees that the funds in the Facilities Account will not be “available” for reimbursement under this Agreement unless and until the reimbursement obligations of City under the Prior Agreements are either satisfied or the priority for reimbursement thereunder is adjusted in accordance with the terms of such agreements. If a Panhandle Project Reimbursement/Credit Agreement was executed with another land developer prior to the date this Agreement was executed and is inadvertently not included within Exhibit “G,” then such agreement shall nevertheless retain its priority, if any, over this Agreement.
3.4.2 Emergency Use of Funds. Landowner agrees that funds within the Facilities Account will not be “available” for reimbursement under this Agreement if City determines, in its sole and exclusive discretion, that such funds must be expended upon an infrastructure project in the Finance Plan area for any one of the following limited purposes:
(a) the project is essential to preserve public health and safety or to protect public health and safety against an immediate risk;
(b) the project is required as a result of a federal or state mandate;
(c) the project is required to meet federal or state air-quality requirements; or
(d) the project is required as a result of, or is needed to alleviate the effects of, an act of God or other disaster.
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3.5 Agreements with Other Landowners. To protect such reimbursement to Landowner, City agrees that any and all other credit-reimbursement agreements involving reimbursements from the Impact Fee will include the following terms:
3.5.1 The credit-reimbursement amount under the other agreements shall be based on the actual costs incurred for the improvements, as reviewed and approved by City, and the contracts for such work shall be awarded based on a competitive bid similar to the process required for comparable City public-works projects; and
3.5.2 Similarly, the provision of credits by City to other landowners for other project improvements will reduce the flow of funds to the Facilities Account and defer Landowner’s reimbursement under this Agreement.
3.6 Impact of Assignment on Reimbursement Amount. If and to the extent Landowner assigns its right to reimbursements and credits under this Agreement in accordance with the provisions of Article 5 below, City’s obligation to reimburse Landowner and such approved assignees shall be made in proportion to the outstanding portions of the Reimbursement Amount then held by Landowner and such assignees thereof approved by the City pursuant to Article 5.
Article 4. Fee Credits
4.1 Credit Against Development Fees. Upon full completion of the Project, upon actual formal City acceptance of the Project in accordance with Section 2.1 , and to the extent not reimbursed from the Facilities Account, Landowner shall be entitled to credits (collectively, “Fee Credits ,” and individually, “ Fee Credit ”) against the Impact Fee . The fee credit principles expressed in this Section 4.1 shall be interpreted and applied to achieve fairness and equity to all parties, including City , while not allowing a party to obtain economic or other advantage through arbitrage or otherwise. Subject to the fair share payment for City’s Impact Fee administration costs described below, Landowner may credit 80% of its outstanding Reimbursement Amoun t against the Impact Fee that would otherwise be payable by Landowner with respect to the Property upon issuance of a building permit for any building within the Property, until such Reimbursement Amount is exhausted through such credits and any reimbursem ent hereunder. Landowner acknowledges that the fee credit shall not apply against Landowner’s fair share of City’s costs and expenses to administer the Impact Fee program and reimbursement agreements related thereto and Landowner shall be obligated to pay such portion of the Impact Fee as it pulls building permits within the Property, notwithstanding any outstanding balance of the Reimbursement Amount, up to, but not in excess of, 3% of the then-existing Impact Fee.
4.2 Fee Deferral. If City adopts a Fee Deferral Plan that allows deferral of the Impact Fee, and the Landowner chooses to participate in such Fee Deferral Plan, then Landowner’s fee credit shall be applied against the then-existing Impact Fee in accordance with the Reimbursement/Credit Agreement | Page 14
foregoing provisions to determine the net fee to be deferred. The Landowner must submit any claim for Fee Credits prior to signing a Fee Deferral Agreement.
4.3 Advance Issuance of Fee Credits. Notwithstanding Section 4.1, Landowner shall be entitled to Fee Credits before full completion of the Project and actual formal City acceptance of the Project if one of the following conditions is satisfied:
4.3.1 Performance and Payment Bonds Requirements. If Landowner requests advancement of Credits before Final Acceptance of the Project, in lieu of a letter of credit, Landowner may obtain a Performance Bond and Payment Bond as security for completion of the Project construction by ensuring sufficient funds will be available to pay the construction contractor if Landowner defaults in its obligation to fund the Project construction in lieu of paying the Impact Fees. The Payment Bond amount shall be not less than one hundred percent (100%) of the construction contract amount. The Performance Bond amount shall be not less than one hun dred percent (100%) of the construction contract amount. The bonds must be issued to Landowner by a surety insurer admitted and duly authorized to transact business in the State of California with no less than an A/VIII rating by A.M. Best. The performanc e bond must name City as an oblige e in the forgoing amount as security for the advancement of issuance of Credits.
4.3.2 Letter of Credit Requirements. Landowner provides City with an irrevocable letter of credit in an amount that is no less than $_________ as security for Landowner’s performance under this Agreement (“Letter of Credit”).
(a) The Letter of Credit must be in a form acceptable to the City Attorney’s Office, in that office’s sole discretion, and, by its express terms, must be unconditional and absolutely free of defenses on the part of Landowner and the financial institution that issues it. The financial institution that issues the Letter of Credit must be a commercial bank lawfully operating within the United States and acceptable to the City Treasurer’s Office, in that office’s sole discretion.
(b) The term of the Letter of Credit must be at least 12 months, and the Letter of Credit must provide that City may draw upon it by presenting one or more site drafts, each accompanied by a signed-and-dated demand letter worded substantially as follows:
I, the [title] of the City of Sacramento, demand payment of the sum of ______________________ U.S. Dollars ($________)
representing a partial/full draw upon the amount of your Irrevocable Letter of Credit No. ______. This sum represents payment due to the city under the reimbursement/credit
agreement between [Landowner’s name] and the city that is dated ________, 20__, and designated by the city as Agreement No. _______.
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(c) While this Agreement is in effect, Landowner must replace the Letter of Credit (and any replacement Letter of Credit) at least 30 days before its expiration date. The replacement Letter of Credit must be identical to the Letter of Credit being replaced, except that it must have an expiration date that is no sooner than 12 months following the expiration date of the Letter of Credit being replaced.
4.3.3 Issuance of Fee Credits. Landowner must make a written request for issuance of Fee Credits in accordance with this Section 4.3. City will verify that the required performance and payment bonds or letter of credit are in place and will determine, in its sole discretion, the amount of Fee Credits that may be issued in response to the written request. City will issue Fee Credits to Landowner in an amount equal to the Fee Credits allowable under this Agreement and City’s policies and procedures for issuance of the Impact Fee credits. Total Fee Credits issued under this Section 4.3.2 may not exceed the amount of the Letter of Credit delivered by Landowner.
4.3.4 Repayment. If after the issuance of Fee Credits consistent with this Section 4.3, the City determines at final calculation of the Reimbursement Amount pursuant to Section 3.1 that it advanced Fee Credits to Landowner in excess of those that should, in retrospect, have actually been issued, then Landowner agrees to repay City the full amount of the value of the excess Fee Credits within 15 days after receiving City’s written demand.
4.3.5 Drawing upon the Letter of Credit. City may draw on the Letter of Credit as follows:
(a) If Landowner fails to complete construction of the Project as required by this Agreement, then City will have the absolute right to draw upon the Letter of Credit in an amount City determines, in its sole discretion, to be necessary to complete construction.
(b) If repayment is due under Section 4.3.4 and Landowner does not repay City within the time specified in Section 4.3.4, then City will be entitled to draw against the Letter of Credit in an amount equal to the repayment amount then due. A draw under this Section 4.3.5(b) will be a partial draw under the Letter of Credit and will leave the balance of the Letter of Credit intact.
(c) If Landowner fails to provide City with a replacement Letter of Credit within the time specified in Section 4.3.2(c), then City will be entitled to draw against the Letter of Credit in an amount equal to the total amount of Fee Credits that Landowner has received under this Agreement as of the time of the draw. If City makes a draw under this Section 4.3.5(c), then—
(1) City will hold the amount drawn, with no obligation to pay Landowner interest, until (A) City determines that Landowner cannot or will not Reimbursement/Credit Agreement | Page 16
complete the Project as required by this Agreement (in which event City may use the amount drawn to complete the Project) or (B) Landowner completes the Project in full and City formally accepts the Project (in which event City will return the amount drawn to Landowner); and
(2) City will not be obligated to issue additional Fee Credits under this Agreement unless and until (A) Landowner completes the Project in full and City formally accepts the Project or (B) Landowner furnishes City with a replacement Letter of Credit that complies with Section
4.3.2 above.
4.3.6 Release of Letter of Credit. City will release the Letter of Credit if and when Landowner completes the Project in full and City formally accepts the Project.
4.4 Redemption of Fee Credits . The City may determine that there are sufficient Impact Fee revenues available in the Facilities Account to satisfy obligations under the Finance Plan and to redeem all or a portion of outstanding Fee Credits consistent with the foregoing:
4.4.1 Written Notice to Holders of Existing Fee Credits. Consistent with Section 3.4 of this Agreement, the City shall, in the event it determines it has sufficient revenues in the Facilities Account , provide written notice to the holder of existing Fee Credits whose Project R eimbursement/Credit Agreement was executed first in time that all or a portion of its Fee Credits may be redeemed . That holder of existing Fee Credits will the n have 30 days to provide a written response to the City to redeem all or a portion of its Fee Credits consistent with the City’s written notice. If that credit holder does not respond within 30 days, the City shall provide written notice to the holder of existing Fee Credits whose Project Reimbursement/Credit Agreement was executed second in time consistent with the foregoing and so on. Landowner shall receive written notice as appropriate based on priority as provided herein.
4.4.2 Redemption in the Event of Assignment. In the event of assignment of Fee Credits consistent with Article 5 and assuming Landowner and its assignee (s) have then existing Fee Credits, City shall provide written notice to both at the same time consistent with Section 4.4.1. If the Landowner or its assignee(s) do not respond within 30 days as provided above, the City shall then redeem Fee Credits on a pro rata basis , consistent with Section 5.6, only for those Fee Credit holders who responded in a timely manner.
4.5 Dispute Between Landowners. Landowner acknowledges and agrees that in the event of any dispute between Landowner and /or another landowner within the Panhandle and/ or City regarding the legal ownership of the rights to credits and reimbursements hereunder, City may withhold any cash reimbursement and may disallow the use of any Fee Credits unless and until either—
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4.5.1 all parties to the dispute have executed an agreement in a form acceptable to the City Attorney specifying the legal ownership of such rights and the manner in which such rights will be exercised, wh ich agreement shall contain acceptable indemnification and defense provisions, or
4.5.2 one of the parties has obtained a court order determining as against the disputing parties the legal ownership of such rights and the manner in which such rights will be exercised.
Article 5. Assignments of Reimbursement and Credits
5.1 Assignment of Reimbursement Rights. Landowner may assign the rights under this Agreement to receive reimbursements and take credits against the Impact Fee to be assessed against any development within the Panhandle to any person or entity, subject to and in accordance with the terms of this Article 5. All assignments of the right to credits and reimbursements pursuant to this Article 5 shall be subject to City’s prior written consent, which consent shall not be unreasonably withheld or delayed. Landowner acknowledges and agrees that City shall have the discretion to deny an assignment of rights to credits and reimbursements under this Agreement on the basis of excessive fractionalization of the available credits and reimbursements, provided that City shall not deny an assignment that represents an amount equal to at least $50,000 of Landowner’s reimbursement and credit rights. In addition, City shall be entitled to calculate and assess as a condition of its consent to any such assignment, a reasonable fee for the review, approval, and administration thereof.
5.2 Acknowledgment of Agreement; Assumption. In addition to the approval of City, any such assignment shall be subject to an express written assumption by the assignee, whereby the assignee agrees to be subject to all the provisions of this Agreement with respect to the application and interpretation of the fee-credit and fee-reimbursement provisions, including, without limitation, the obligation to pay the portion of the Impact Fee required to cover City’s cost of administration thereof, notwithstanding the existence of any such right to credits and reimbursements. The assignment agreement shall contain a provision whereunder Landowner and the assignee agree to fully and completely indemnify and defend City from any liability relating to the assignment of rights.
5.3 Allocation of Reimbursements. If and to the extent Landowner assigns its right to reimbursements under this Agreement in accordance with the provisions of this Article5, City’s obligation to reimburse Landowner and such approved assignees shall be made in proportion to the then-outstanding portions of the Reimbursement Amount then held by Landowner and such assignees thereof approved by City pursuant to this Article5.
5.4 Disputes between Landowner and Assignee. Landowner and any assignee thereof acknowledge and agree that in the event of any dispute between Landowner and/or any assignee and/or City regarding the legal ownership of the rights to credits and reimbursements hereunder, City may withhold any cash reimbursement and may disallow the use of any Fee Credits unless and until either—
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5.4.1 all parties to the dispute have executed an agreement in a form acceptable to the City Attorney specifying the legal ownership of such rights and the manner in which such rights will be exercised, which agreement shall contain acceptable indemnification and defense provisions, or
5.4.2 one of the parties has obtained a court order determining as against the disputing parties the legal ownership of such rights and the manner in which such rights will be exercised.
5.5 City Policy and Procedure. Landowner acknowledges, for itself and its successors in interest to the Property, that the reimbursement and credit rights hereunder do not run with the Property and that adopted City policies and procedures relating to assignment of Fee Credits and reimbursements, as such policies and procedures may be amended from time to time, shall apply to Landowner and its successors in interest to the Property. City agrees that it shall not give any Fee Credits to any subsequent purchaser or encumbrancer of any portion of the Property unless such subsequent purchaser or encumbrancer has a separate, written assignment of these Fee Credits from Landowner (or a previously approved assignee thereof), which written assignment has been approved by City in accordance with the provisions of this Article 5.
5.6 Priority of Assigned Fee Credits . If Landowner assigns any Fee Credits in accordance with this Section 5, then the Fee Credits that the Landowner retains and the Fee Credits it assigns will have the same redemption priority, which will be determined by the effective date of this agreement. If the funds then available in the Facilities Accounts as determined by the City consistent with Section 4.4, as applicable, are not sufficient to redeem all tendered Fee Credits of the same priority, then redemption of the tendered Fee Credits will be pro rata based on the proportional amount of existing Fee Credits held by the Landowner and its assignee(s) at the time of the written notice provided consistent with Section 4.4.1 and assuming that both responded to said notice as required by Section 4.4
Article 6. Miscellaneous
6.1 Notices. Any notice required or elected to be given hereunder shall be given by placing the notice in the United States mail, postage prepaid, and addressed in accordance with the provisions of this Section 6.1. Unless the text of this Agreement otherwise provides, notice shall be deemed to have been given on the date that the notice was placed in the mail in accordance herewith. Notice to Landowners, or to any individual Landowner, shall be given to the single address set forth below.
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If to the City:
City of Sacramento
New City Hall
915 I Street, 5th Floor
Sacramento, California 95814
Attention: City Manager
If to Landowner:
[]
Attention: []
WITH A COPY TO—
[]
6.2 Effective Date. This Agreement shall become effective upon its execution by all parties.
6.3 Enforced 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 default are due to war, acts of terrorism, insurrection, labor shortages (including shortages caused by strikes or walkouts), riots, unusually severe weather (i.e. floods, extreme rain, etc.), drought, earthquakes, fires, casualties, acts of God, governmental restrictions imposed or mandated by other governmental entities, enactment of conflicting state or federal laws or regulations, new or supplementary environmental regulation, energy shortages or rationing, or similar bases for excused performance. If written notice of such delay is given to City within 30 days of the commencement of such delay, an extension of time for such cause shall be granted for the period of the enforced delay, or longer as may be mutually agreed upon. This Section 6.3 does not excuse either party’s obligation to perform an act when performance is rendered difficult or impossible solely because of that party’s financial condition.
6.4 Preparation Fees. Landowner shall pay to City the sum of $[], representing the costs associated with the City Attorney’s services in negotiating and drafting this Agreement.
6.5 Waiver. A party’s failure to insist on strict performance of this agreement or to exercise any right or remedy upon breach of this agreement will not constitute a waiver of the performance, right, or remedy. A party’s waiver of another party’s breach of any provision in this agreement will not constitute a continuing waiver or a waiver of any subsequent breach of the same or any other provision. A waiver is binding only if set forth in writing and signed by the waiving party.
6.6 Venue. Venue of any litigation arisi ng out of, or connected with, this agreement will lie exclusively in the Sacramento County Superior Court or the U.S. District Court for the Eastern District of California (Sacramento Division). The parties’ consent to jurisdiction over their persons and o ver the subject matter of any such litigation in those courts and to service of process issued by those courts.
6.7 Authority to Sign . Each person who signs this agreement on a party’s behalf represents that he or she is authorized to do so.
6.8 Execution in Counterparts; Electronic Signatures . This agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. Each of the parties hereto agrees that t he Reimbursement/Credit Agreement | Page 20
transaction consisting of this Agreement may be conducted by electronic means. Each party agrees, and acknowledges that it is such party’s intent, that if such party signs this Agreement using an electronic signature, it is signing, adopting, and accept ing this Agreement and that signing this Agreement using an electronic signature is the legal equivalent of having placed its handwritten signature on this agreement on paper.
6.9 Audit. The City is entitled, after giving 10-days’ written notice to the Landowner, to review during the Landowner’s normal business hours all of the Landowner’s books and records pertaining to costs and expenses the Landowner incurred in constructing the Project, including any construction contracts, subcontracts, change order s, invoices, and payroll records, until this Agreement is terminated.
6.10 Entire Agreement. This Agreement sets forth the parties’ entire understanding regarding the matters set forth above and is intended to be the parties’ final, complete, and exclusive expression of those matters. This Agreement supersedes all prior or contemporaneous agreements, representations, and negotiations—written, oral, expressed, or implied—and may be modified only by another written agreement signed by both parties.
(Signature Page Follows)
Reimbursement/Credit Agreement | Signature Page
City of Sacramento
By: ________________________________
[], Assistant City Manager
for [], City Manager
Date: _____________, ____
[]
By: []
________________________________
Signature
[]
[]
Date: _____________, ____
Attest:
By: ________________________________
[]
Assistant City Clerk
Approved as to Form:
By: ________________________________
[]
Senior Deputy City Attorney
Approved as to Form
[]
By: ________________________________
[]
[]
Exhibits:
Exhibit A – Landowner Property Description
Exhibit B – Project Infrastructure Elements
Exhibit C – Competitive Bidding Guidelines
Exhibit D – Hazardous Substances
Exhibit E – Construction Contract Indemnity Language
Exhibit F – Insurance Requirements
Exhibit G – Prior Agreements
Reimbursement/Credit Agreement | A-1
EXHIBIT A
LANDOWNER PROPERTY DESCRIPTION
Reimbursement/Credit Agreement | B-1
EXHIBIT B
PROJECT INFRASTRUCTURE ELEMENTS
Reimbursement/Credit Agreement | B-2
Attachment 1 to Exhibit B
Summary of Reimbursable Costs
Reimbursement/Credit Agreement | B-3
Attachment 2 to Exhibit B
Detailed Cost Sheets
Reimbursement/Credit Agreement | B-4
Attachment 3 to Exhibit B
City-Approved Plans and Specifications
The City-approved Plans and Specifications for the Project are on file in the offices of the City’s Department of Public Works (New City Hall, 915 I Street Second Floor, Sacramento, California) and are part of this Agreement. The Plans consist of a []-page document prepared by [] and dated [] The cover sheet for the Plans looks like this:
Reimbursement/Credit Agreement | C-1
EXHIBIT C
COMPETITIVE BIDDING GUIDELINES
1.0 Definitions
1.1 Advertisement. The solicitation that requests bids for the Project in accordance with these guidelines and applicable law.
1.2 Bid Documents . Plans, Specifications, and proposal documents that are prepared by, or under the supervision of, the Design Engineer; conform with policies, rules, regulations, and laws applicable to the City; and are suitable for the solicitation and submittal of bids by contractors for construction of the Project.
1.3 City Engineer. The Engineering Services Division Manager of the City’s Department of Public Works or the Engineering Services Division Manager’s designee.
1.4 Construction Security. Performance bonds and labor-and-material payment bonds or other security, provided by the Contractor to the Landowner in a form assignable to the City, which guarantee that the Contractor will meet all contractual obligations.
1.5 Contractor. A person or entity that is under contract to construct the Project and who possesses the appropriate California contractor’s license or licenses for the work.
1.6 Design Engineer . A California -licensed professional civil engineer the Landowner has retained for the purpose of designing, stamping, and signing the Plans, and supervising construction of the Project.
1.7 Engineer’s Estimate. A cost estimate for the Project prepared by the Design Engineer and approved by the City Engineer.
1.8 Landowner. The person or entity identified as the “Landowner” in the Reimbursement/Credit Agreement to which these guidelines are attached as an exhibit.
1.9 Plans. Final construction drawings prepared, stamped, and signed by the Design Engineer and its consultants and approved by the City for construction of the Project. Approved City plans require signatures from various City engineers representing specific public facilities.
1.10 Project. The backbone infrastructure and public facilities that will be const ructed by Landowner, as specified in Exhibit B to the Reimbursement/Credit Agreement.
1.11 Specifications. Documents prepared by the Design Engineer or its consultants that describe in detail for construction -contract purposes the material and workmansh ip required to complete the Project.
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2.0 Pre-Advertisement Procedures
2.1 Landowner shall submit its proposed project schedules to the City Engineer.
2.2 Prior to advertisement of the Bid Documents, the Design Engineer shall prepare and submit final Plans and Specifications to the City Engineer for review and approval. The Bid Documents cannot be advertised unless and until the City Engineer approves the Plans and Specifications in writing.
2.3 Landowner shall pay City plan -check fees and inspection fees (normal and specific) in accordance with normal City procedures.
2.4 The Design Engineer shall prepare the Bid Documents for the Project and shall submit the documents to the City Engineer for review, and the City Engineer shall, in writing, either approve or disapprove the Bid Documents. The Bid Documents must be in conformance with all ordinances, laws, policies, rules, and regulations applicable to the City, including but not limited to the following:
(a) Compliance with all applicable City and St ate of California requirements for public - works contracts, including but not limited to Sacramento City Code sections 3.60.180 (concerning prevailing wages, hours of work, etc.) and 3.60.190 (concerning apprentices), and the City of Sacramento’s “Standard Specifications for Public Construction.”
(b) After the Plans and Specifications for the Project are approved in writing by the City Engineer, Landowner shall solicit and obtain sealed bids to perform the work shown on the approved Plans and Specifications from a minimum of three licensed contractors. Landowner is encouraged to advertise the Project in a trade paper or newspaper of general circulation.
2.5 The City Engineer shall review the Bid Documents to determine whether they meet the following requirements:
(a) The Engineer’s Estimate is reasonable and has been approved by the City Engineer.
(b) The bidding procedures are consistent with the requirements of the guidelines in this Exhibit C, and the bid forms clearly describe each bid item.
(c) The construction contract includes the following:
(1) Requires the Contractor and its subcontractors to comply with Sacramento City Code sections 3.60.180 (concerning prevailing wages, hours of work, etc.) and
3.60.190 (concerning apprentices).
(2) Contains the required indemnity language specified in Exhibit E to the Reimbursement/Credit Agreement.
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(3) Requires the Contractor and its subcontractors to maintain insurance pursuant to the requirements of Exhibit F of the Reimbursement/Credit Agreement.
(4) Requires the Contractor to provide Construction Security in the same manner as is provided for normal City public -works projects, in accordance with Section 1.5 of the Reimbursement/Credit Agreement.
(5) Requires that the Contractor submit to the City Engineer, in a form a cceptable to the City, a non -collusion affidavit signed by an officer or manager of the Contractor.
(6) A liquidated-damages clause that is consistent with City policy.
(d) The number of allotted working days specified in the contract documents is reasonable for the proposed work.
2.6 The Landowner may be excused from complying with some or all of this section 2.0, other than sections 2.4(a) and 2.5(d)(1) regarding compliance with Sacramento City Code sections
3.60.180 and 3.60.190, if the City Engineer det ermines that excusing compliance is in the best interests of the City.
3.0 Advertisement and Bid-Opening Procedures
3.1 Landowner shall provide the City Engineer with a complete copy of all final Bid Documents, including any addenda, and may advertise the Project only after the City Engineer has approved the Plans and has approved the final Bid Documents in writing.
3.2 The Landowner’s request for bids must inform bidders that all work must be performed in accordance with the approved Plans and Specifications and any City -approved changes thereto, and in strict conformity with the City’s “Standard Specifications for Public Construction,” unless exceptions are approved by the City Engineer. Landowner’s request for bids must further inform bidders that the construction contract will contain the requirements specified in Section 2.5(d) of these guidelines and will require compliance with all other applicable provisions of the Reimbursement/Credit Agreement.
3.3 The bids must be sealed, must be submitted on or before the specified date and time, and must be opened at the same time.
3.4 Bidders must be provided a minimum of ten (10) working days to prepare and submit bids, and the City Engineer must be informed (in advance) of the date and time for each pre -bid meeting (if any) and the opening of the bids by Landowner.
3.5 Landowner may be excused from complying with this sectio n 3.0, in whole or part, if the City Engineer determines that excusing compliance is in the best interests of the City.
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4.0 Construction Contract Award
4.1 Landowner shall provide the City Engineer with a copy and summary of all bids and a copy of the lowest bid proposal submitted, together with a written evaluation of the bids and a recommendation for award. Landowner shall provide the following information to the City Engineer with the evaluation and recommendation, stating the following:
(a) That there are no pending disputes over the bidding procedures.
(b) That all bidders received the same set of Bid Documents and all of the addenda issued.
(c) That all applicable City approvals required for the work have been obtained.
(d) That the bid proposal has not been conditioned in any way.
(e) If Landowner is not recommending award to the low bidder, the basis and reasons for Landowner’s recommendation.
(f) The contract amount for the bidder proposed by Landowner.
4.2 Within five working days after receipt of the bid m aterial specified in Section 4.1, the City Engineer shall review the bid summary and a copy of the lowest bid and shall determine whether: (a) to concur in Landowner’s recommendation or (b) to notify Landowner that additional review time will be required, specifying the date by which review will be complete. The City Engineer will then give Landowner written notification of his or her determination within the time frame specified for review.
4.3 If the lowest bidder is not recommended, if the City Enginee r does not concur with Landowner’s recommendation, or if the City Engineer is aware of any irregularities or possible disputes over the bidding procedure, then Landowner or the City Engineer shall notify the Director of the City’s Department of Public Works. This notice must be in writing and must be submitted within five working days after the City Engineer’s determination required by Section 4.2 has been made. Within ten days after receiving the notice, the Public Works Director shall review the Bid Docum ents and procedures and advise Landowner of the City’s decision regarding the award of the contract.
4.4 The Landowner may reject all bids received and re-advertise for bids in accordance with the guidelines in this Exhibit C or, with the City Engineer’s concurrence, may dispense with further competitive bidding. Landowner may not reject individual bids witho ut the City Engineer’s concurrence.
4.5 Landowner must obtain the City Engineer’s formal written concurrence before awarding the construction contract. Landowner may not award the contract unless and until the City Engineer has reviewed the bids, has c oncurred in the Landowner’s recommendation for
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award, and has provided written approval of the amount of the construction contract to be awarded by Landowner.
4.6 Landowner shall award the contract, with the City Engineer’s concurrence, within 60 days after the bid opening and shall authorize the Contractor to complete the Project in accordance with Section 1.3 of the Reimbursement/Credit Agreement.
4.7 Landowner shall provide the following items to the City Engineer within 30 days after the Landowner has authorized the Contractor to proceed:
(a) A copy of the signed contract with the Contractor, specifying the award date.
(b) A written statement: (1) that the contract award amount is within the Engineer’s Estimate; or (2) that the contract award amoun t exceeds the Engineer’s Estimate and Landowner will pay all amounts by which the contract exceeds the estimate.
4.8 Landowner may be excused from complying with this section 4.0, in whole or part, if the City Engineer determines that excusing compliance is in the best interests of the City.
5.0 Prevailing Wages and Apprentices
5.1 The Contractor and all subcontractors shall comply with Sacramento City Code sections
3.60.180 (concerning prevailing wages, hours of work, etc.) and 3.60.190 (concerning apprentices) for all work performed on the Project. Landowner shall hire a labor-compliance consultant to certify to the City Engineer, in writing, that all requirements of Sacramento City Code sections 3.60.180 (concerning prevailing wages, hours of work, etc.) and 3.60.190 (concerning apprentices) have been satisfied. The consultant’s certification must be submitted to the City Engineer when Landowner submits a request for reimbursement in accordance with the Reimbursement/Credit Agreement. Upon request, the Landowner shall provide copies of certified payrolls to the City Engineer.
5.2 Consistent with California Labor Code section 1720, subdivision (c)(2), work performed on the Project will be eligible for reimbursement only if all public-improvement work has been performed in compliance with Sacramento City Code sections 3.60.180 and 3.60.190.
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EXHIBIT D
HAZARDOUS SUBSTANCES
A. No Review, Examination, or Assessment. The parties acknowledge and understand that City has not conducted any review, examination or assessment to assess, identify or detect the presence of any Hazardous Substances, as defined below, on, under or around Landowner Property. As between the City and Landowner, any liability associated with the presence of any Hazardous Substances on, under or around the Landowner Property, including any interests in said property dedicated to City as provided herein, shall be governed by the indemnity provisions of this Agreement, regardless of whether any such review, examination or assessment is conducted.
B. Definitions.
(1) As used herein, the term “Hazardous Substances” means:
(a) Those substances included within the definitions of hazardous substance, hazardous waste, hazardous material, toxic substance, solid waste, or pollutant or contaminant under any Environmental Law, as defined below;
(b) Those substances listed in the United States Department of Transportation Table [49 C.F.R. § 172.101], or by the Environmental Protection Agency, or any successor agency, as hazardous substances [40 C.F.R. Part 302];
(c) Other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state or local laws or regulations; and
(d) Any material, waste, or substance that is—
(iii) a petroleum or refined petroleum product;
(iv) asbestos;
(v) polychlorinated biphenyl;
(vi) designated as a hazardous substance pursuant to 33 U.S.C. § 1321 or listed pursuant to 33 U.S.C. § 1317;
(vii) a flammable explosive; or
(viii) a radioactive material.
(2) As used herein, the term “Environmental Law” means all federal, state, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees or requirements of any government authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance, or pertaining to environmental conditions on, under, or about the detention basin site or any of the easement areas which Landowner is required to and does convey to City pursuant to this Agreement, as now or may at any later time be in effect, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) [42 U.S.C. § 9601 et seq.]; the
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Resource Conservation and Recovery Act of 1976 (RCRA) [42 U.S.C. § 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) [33 U.S.C. § 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 U.S.C. § 2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 U.S.C. § 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act (7 U.S.C. § 136 et seq.]; the Superfund Amendments and Reauthorization Act [42 U.S.C. § 6901 et seq.]; the Clean Air Act [42 U.S.C. § 7401 et seq.]; the Safe Drinking Water Act [42 U.S.C. § 300f et seq.]; the Solid Waste Disposal Act [42 U.S.C. § 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 U.S.C. § 1201 et seq.]; the Emergency Planning and Community Right to Know Act [42 U.S.C. § 11001 et seq.]; the Occupational Safety and Health Act [29 U.S.C. §§ 655 and 657]; the California Underground Storage of Hazardous Substances Act [Health and Safety Code § 25280 et seq.]; the California Hazardous Substances Account Act [Health and Safety Code § 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [Health and Safety Code § 24249.5 et seq.]; the Porter-Cologne Water Quality Act [Water Code § 13000 et seq.], together with any amendments of or regulations promulgated under the statutes cited above, and any other federal, state or local law, statute, ordinance or regulation now in effect or later enacted that pertains to the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.
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EXHIBIT E
CONSTRUCTION CONTRACT INDEMNITY LANGUAGE
For Construction Contractors:
A. Contractor shall defend, hold harmless and indemnify the City, its officers, employees, and agents, and each and every one of them, from and against any and all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, costs and expenses of every type and description, whether arising on or off the site of the Work, including, but not limited to, any fees and/or costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Liabilities”), including but not limited to Liabilities arising from personal injury or death, damage to personal, real or intellectual property or the environment, contractual or other economic damages, or regulatory penalties, arising out of or in any way connected with performance of or failure to perform the Work by the Contractor, any subcontractor or agent, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, whether or not (i) such Liabilities are caused in part by a party indemnified hereunder, or (ii) such Liabilities are litigated, settled or reduced to judgment; provided that the foregoing indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, damage or expense to the extent arising from (i) the sole negligence or willful misconduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, or (ii) the active negligence of City.
B. The existence or acceptance by City of any insurance policies or coverages shall not affect or limit any of City’s rights under this Section, nor shall the limits of such insurance limit the liability of Contractor hereunder. The provisions of this Section shall survive any expiration or termination of the Contract.
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For Design Professionals (architects, landscape architects, engineers, and land surveyors):
A. Indemnity: Contractor shall defend, hold harmless, and indemnify City, its officers, and employees, and each and every one of them, to the fullest extent permitted under law, from and against all actions, damages, costs, liabilities, claim s, demands, losses, judgments, penalties, and expenses of every type and description, whether arising on or off the site of the work or services performed under this Contract, including any fees and costs reasonably incurred by City’s staff attorneys or ou tside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Claims”), including Claims for personal injury or death, damage to personal, real, or intellectual property, damage to the environment, c ontractual or other economic damages, or regulatory penalties, that arise out of, pertain to, or relate to any negligent act or omission, recklessness, or willful misconduct related in any way to the performance of or failure to perform this Contract by Co ntractor, any subcontractor (including lower - tier subcontractors) or agent of Contractor, their respective officers and employees, and anyone else for whose acts or omissions any of them may be liable, whether or not the Claims are litigated, settled, or r educed to judgment; provided that the foregoing indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or other loss, damage, or expense, to the extent arising from the active negligence or willful misc onduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, except when such agents, servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower -tier subcontractors) or agent of Contractor. While Contractor’s defense costs ordinarily cannot exceed Contractor’s proportionate percentage of fault, if one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution, the Contractor shall meet and confer with the City and other parties regarding the unpaid defense costs.
B. Insurance Policies: The existence or acceptance by City of any of the insurance policies or coverages described in this Contract will not affect or limit any of City’s rights under this Section, nor will the limits of any insurance limit the liability of Contractor hereunder.
C. Survival: The provisions of this section will survive any expiration or termination of this Contract.
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For Construction -Related Professional Services (not performed by architects, landscape architects, professional engineers, or professional land surveyors):
A. Contractor shall defend, hold harmless, and indemnify City, its officers, and employees, and each and every one of them, from and against all actions, damages, costs, liabilities, claims, demands, losses, judgments, penalties, and expenses of every type and description, whether arising on or off the site of the work or services per formed under this Contract, including any fees and costs reasonably incurred by City’s staff attorneys or outside attorneys and any fees and expenses incurred in enforcing this provision (hereafter collectively referred to as “Liabilities”), including Liab ilities for personal injury or death, damage to personal, real, or intellectual property, damage to the environment, contractual or other economic damages, or regulatory penalties, arising out of or in any way connected with performance of or failure to perform this Contract by Contractor, any subcontractor (including lower -tier subcontractors) or agent of Contractor, their respective officers and employees, and anyone else for whose acts o r omissions any of them may be liable, whether or not the Liabilitie s (i) are caused in part by a party indemnified hereunder, or (ii) are litigated, settled, or reduced to judgment; provided that the foregoing indemnity does not apply to liability for damages for death or bodily injury to persons, injury to property, or o ther loss, damage, or expense, to the extent arising from the active negligence or willful misconduct of, or defects in design furnished by, City, its agents, servants, or independent contractors who are directly responsible to City, except when such agents, servants, or independent contractors are under the supervision and control of Contractor or any subcontractor (including lower -tier subcontractors) or agent of Contractor.
B. Insurance Policies; Intellectual Property Claims: The existence or accept ance by City of any of the insurance policies or coverages described in this Contract will not affect or limit any of City’s rights under this Section, nor will the limits of any insurance limit the liability of Contractor hereunder.
C. Survival. The pro visions of this section will survive any expiration or termination of this Contract.
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EXHIBIT F
INSURANCE REQUIREMENTS
1. Insurance Requirements . During the entire term of this Agreement, Landowner shall maintain, or cause to be maintained, the insurance coverage described in this Exhibit F.
City will not provide any compensation for Landowner’s or its contractors’ or subcontractor’s insurance premiums. Any available insurance proceeds in excess of the specified minimum limits and coverages shall be available to the City. Landowner's liability to the City is not in any way limited to or affected by the amount of insurance coverage required or carried by the Landowner or its contractors or subcontractors in connection with this Agreement.
2. General Liability Minimum Scope and Limits of Insurance Coverage. Commercial General Liability Insurance is required providing coverage at least as broad as ISO CGL Form 00 01 on an occurrence basis for bodily injury, including death, of one or more persons, property damage, and personal injury, arising out of activities performed by or on behalf of the Landowner and subcontractors, products and completed operations of Landowner and subcontractors, and premises owned, leased, or used by Landowner and subcontractors, with limits of not less than $[] per occurrence. The policy shall provide contractual liability and products and completed operations coverage for the term of the policy. The policy shall be maintained for three years after receiving notice of completion for the Project.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects general liability arising out of: activities performed by or on behalf of Landowner and subcontractors; products and completed operations of Landowner and subcontractors; and premises owned, leased, or used by Landowner and subcontractors.
3. Automobile Liability Minimum Scope and Limits of Insurance Coverage . ( Check the applicable provision.)
_X_ Automobile Liability Insurance is required providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of one or more persons, property damage and personal injury, with limits of not less than $[] per occurrence. The policy shall provide coverage for owned, non-owned and/or hired autos as appropriate to the operations of the Landowner.
The City, its officials, employees and volunteers shall be covered by policy terms or endorsement as additional insureds as respects auto liability.
___ No automobile liability insurance is required, and by signing this Agreement, Landowner certifies as follows:
“Landowner certifies that a motor vehicle will not be used in the performance of
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any work or services under this agreement. If, however, Landowner does transport items under this Agreement, or this Agreement is amended to require any employees of Landowner to use a vehicle to perform services under the Agreement, Landowner understands that it must maintain and provide evidence of Automobile Liability Insurance providing coverage at least as broad as ISO Form CA 00 01 for bodily injury, including death, of o ne or more persons, property damage and personal injury, with limits of not less than $[] per occurrence. The policy shall provide coverage for owned, non -owned and/or hired autos as appropriate to the operations of the Landowner.”
4. Excess Insurance. The minimum limits of insurance required above may be satisfied by a combination of primary and umbrella or excess insurance coverage, provided that any umbrella or excess insurance contains, or is endorsed to contain, a provision that it will apply on a primary basis for the benefit of the City, and any insurance or self-insurance maintained by City, its officials, employees, or volunteers will be in excess of Landowner's umbrella or excess coverage and will not contribute to it.
5. Workers’ Compensation Minimum Scope and Limits of Insurance Coverage. (Check the applicable provision.)
_X Workers’ Compensation Insurance is required with statutory limits and Employers’ Liability Insurance with limits of not less than $[]. The Workers' Compensation policy shall include a waiver of subrogation in favor of the City.
___ No work or services will be performed on or at City facilities or C ity Property, therefore a Workers’ Compensation waiver of subrogation in favor of the C ity is not required.
___ No Workers’ Compensation insurance is required, and by signing this Agreement, Landowner certifies as follows:
“Landowner certifies that its business has no employees, and that it does not employ anyone, and is therefore exempt from the legal requiremen ts to provide Workers' Compensation insurance. If, however, Landowner hires any employee during the term of this Agreement, Landowner understands that Workers’ Compensation with statutory limits and Employer’s Liability Insurance with a limit of not less t han $[] is required. The Workers’ Compensation policy will include a waiver of subrogation in favor of the City.”
6. Professional Liability Minimum Scope and Limits of Insurance Coverage. Professional Liability Insurance providing coverage on a claims-made basis for errors and omissions, or malpractice with limits of not less than $[]:
Is _____ Is not _____ [check one] required for this Agreement.
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If required, such coverage must be continued for at least __3__ year(s) following the completion of all services under this Agreement. The retroactive date must be prior to the date this Agreement is approved or any services are performed.
7. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions is required if the Project involves environmental hazards with limits no less than $[] per occurrence or claim, and $[] policy aggregate.
8. Other Insurance Provisions. The policies must contain, or be endorsed to contain, the following provisions:
A. Landowner's insurance coverage, including excess insurance, shall be primary insurance as respects the City, its officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees or volunteers will be in excess of Landowner's insurance and will not contribute with it.
B. Any failure to comply with reporting provisions of the policies will not affect coverage provided to the City, its officials, employees or volunteers.
C. Coverage shall state that Landowner's insurance applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
D. Landowner shall provide the City with 30 days written notice of cancellation or material change in the policy language or terms.
9. Acceptability of Insurance. Insurance must be placed with insurers with a Bests' rating of not less than A:VI. Self-insured retentions, policy terms or other variations that do not comply with the requirements of this Exhibit F must be declared to and approved by the City in writing before execution of this Agreement.
10. Verification of Coverage.
A. Landowner shall furnish City with certificates and required endorsements evidencing the insurance required. Certificates of insurance must be signed by an authorized representative of the insurance carrier. Copies of policies shall be delivered to the City on demand.
B. Landowner shall send all insurance certificates and endorsements, including policy renewals, during the term of this Agreement directly to:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
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C. Certificate Holder must be listed as:
City of Sacramento
c/o Exigis LLC
PO Box 947
Murrieta, CA 92564
D. The City may withdraw its offer of contract or cancel this Agreement if the certificates of insurance and endorsements required have not been provided before execution of this Agreement. The City may withhold payments to Landowner and/or cancel the Agreement if the insurance is canceled or Landowner otherwise ceases to be insured as required herein.
11. Contractor and Subcontractor Insurance Coverage . Landowner shall require and verify that all contractors and subcontractors for the Project maintain all relevant insurance coverage that meets the minimum scope and limits of insurance coverage specified in this Exhibit F. Commercial General Liability and Excess liability policies for any construction related work, including, but not limited to, maintenance, service, or repair work, shall continue coverage for a minimum of 3 years for Completed Operations liability coverage.
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Exhibit G
PRIOR AGREEMENTS
[]
NOTE: This list may not be complete. This Agreement is subject to all prior reimbursement agreements, whether listed here or not.
EXHIBIT B – PANHANDLE FEE CREDITS CERTIFICATE OF ASSIGNMENT
Certificate of Assignment | Page 1 of 2
Panhandle Fee Credits Certificate of Assignment
Assignor1: Assignee
2 :
Assignor is the holder of fee credits that were issued under a Reimbursement/Credit Agreement for Panhandle Backbone Infrastructure and Public Facilities (the “Agreement”).
Assignor hereby assigns, transfers, and conveys to Assignee the fee credits issued under the Agreement and identified below (the “Fee Credits”), in the amounts indicated below:
Credit Type Amount
Panhandle Impact Fee Credits $
Other:
Describe type of credit $
The granting of Fee Credits does not constitute acceptance of improvements by the City.
Indemnification
As used in this provision on indemnification, “Assignor” includes Assignor, its predecessors, and successors-in-interest with respect to the Fee Credits and any reimbursement rights related to the credits; and “Assignee” includes Assignee, its predecessors, and successors-in-interest with respect to the Fee Credits and any reimbursement rights related to the credits. Assignor and Assignee agree that if any dispute arises regarding ownership of the Fee Credits, then the City may disallow use of the credits and withhold any cash reimbursement until one of the following occurs:
1. All parties to the dispute have executed an agreement, in a form acceptable to the City Attorney, that (a) specifies the ownership of the Fee Credits and related reimbursement rights, the manner in which the Fee Credits will be used, and the manner in which the reimbursement rights will be exercised; and (b) contains acceptable indemnification and defense provisions.
2. One of the parties has obtained a court order determining, between the disputing parties, the ownership of the Fee Credits and reimbursement rights and the manner in which the Fee
1 Insert the name and address of the party who is assigning fee credits. 2 Insert the name and address of the party to whom fee credits are being assigned.
Certificate of Assignment | Page 2 of 2
Credits will be used, and the reimbursement rights exercised.
Assignor acknowledges, for itself and its successors-in-interest to the Property identified in the Agreement, that the Fee Credits and reimbursement rights do not run with the Property and that adopted City policies and procedures relating to assignment of the Fee Credits and reimbursement rights, as amended from time to time, will apply to Assignor and its successors-in-interest to the Property. The City agrees that it will not allow the use of any Fee Credits by any subsequent purchaser or encumbrancer of any portion of related Property unless the subsequent purchaser or encumbrancer has a separate, written assignment agreement of these Fee Credits from Assignor (or from a previously approved assignee of Assignor) has been approved by the City.
If any litigation arises with respect to the assignment of the Fee Credits and reimbursement rights described in this certificate, whether or not the City is named as a party, Assignor and Assignee and their successors-in-interest shall indemnify, defend, and hold the City and the City’s officers, employees, and agents harmless from all liabilities, claims, demands, damages, or costs (including reasonable attorney’s fees and costs) arising from, or related to, the assignment.
Print name of Assignor
By
Signature of person authorized to sign for Assignor
Print name of person authorized to sign for Assignor
Print title of person signing for Assignor
Dated:
The assignee hereby accepts the assignment of
Fee Credits described in this certificate and
agrees to be subject to the provisions in the
Agreement that address the Fee Credits and
related reimbursement rights.
Print name of Assignee
By
Signature of person authorized to sign for Assignee
Print name of person authorized to sign for Assignee
Its
Print title of person signing for Assignee
Dated:
The City of Sacramento hereby consents to the
assignment of Fee Credits described in this certificate.
By
Print name and title