Visalia City Council
April 7, 2025

2.34. “Non-Program Improvements” means, collectively, all improvements and infrastructure necessary or desirable to serve the Project as set forth in the Project Approvals and that do not constitute Master Plan Infrastructure. This may include public improvements that under Applicable City Law are required to be installed by Developer pursuant to the Project Approvals with no reimbursement from City.

2.35. “Notice of Compliance” has the meaning set forth in Section 7.2 below.

2.36. “Notice of Default” has the meaning set forth in Section 8.1 below.

2.37. “Notice of Intent to Terminate” has the meaning set forth in Section 9.2 below. 256

7 2.38. “Party” or “Parties” has the meaning set forth in the Preamble.

2.39. “Periodic Review” has the meaning set forth in Section 7.1 below.

2.40. “Planning Commission” means the Visalia Planning Commission.

2.41. “Project” has the meaning set forth in Recital E.

2.42. “Project Approvals” means, collectively, the Initial Approvals and Subsequent Approvals.

2.43. “Project Infrastructure” means, collectively, the Master Plan Infrastructure and Non-Program Improvements.

2.44. “Property” has the meaning set forth in Recital C.

2.45. “Regulatory Processing Fees” means any and all fees, costs and charges adopted or otherwise imposed by City for the purpose of defraying City’s actual costs incurred or to be incurred in the processing and administration of any form of permit, approval, license, entitlement, or formation of a financing district or mechanism, or any and all costs adopted or otherwise imposed by City for the purpose of defraying City’s actual costs of periodically updating its plans, policies, and procedures, including, without limitation, the fees and charges referred to in Government Code Section 66014.

2.46. “Reimbursement Agreement” means an agreement between City and Developer to detail the terms of any reimbursement from City that Developer may be eligible for under Applicable City Law.

2.47. “Subsequent Approval(s)” means any and all land use, environmental, building, construction and development approvals, entitlements and/or permits that are necessary or desirable to develop and operate the Project on the Property subsequent to the Effective Date, including, without limitation, amendments or other modifications to any Initial Approvals; vacation or abandonment of public right(s) of ways; tentative and/or final subdivision maps, tentative parcel maps, parcel maps, lot line adjustments, and lot mergers; annexation; demolition permits; improvement agreements; infrastructure agreements; sewer and water connection permits; site plan review; conditional use permits; development/design review; Building Permits; demolition permits; grading permits; encroachment permits; Certificates of Occupancy; formation of (or annexation to) financing districts or other financing mechanisms; General Construction Permit coverage; and any amendments thereto (administrative or otherwise).

2.48. “Term” has the meaning set forth in Section 3.2 below.

2.49. “Third-Party Litigation” means the filing of litigation by a third party challenging this Development Agreement and/or other Initial Approval(s) or Subsequent Approval(s) on CEQA or any other grounds.

2.50. “Urban Water Management Plan” means the California Water Service, Visalia District, 2020 Urban Water Management Plan adopted by the Cal Water in June 2021. It is noted that under state law California Water Service is required to periodically update the Urban Water Management Plan.
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8 SECTION 3. TERM OF THIS AGREEMENT.

3.1. Effective Date. The rights, duties, and obligations hereunder shall be effective and the Term shall commence on the “Effective Date”, which shall be the effective date of the DA Ordinance.

3.2. Term of Agreement. Subject to Section 2.21 above, this Development Agreement shall commence on the Effective Date and shall continue in full force and effect thereafter for a period of ten (10) years (“Initial Term”) unless extended pursuant to this Section 3.2 or earlier terminated as provided herein (the term of this Agreement, including the Initial Term and as it may be so extended or terminated, is herein referred to collectively as the “Term”). Within thirty (30) days of Developer’s request, the Term shall be extended once for a period of two (2) years so long as Developer is in compliance in all material respects with its obligations hereunder (“Mandatory Extension”). The City Manager shall have the authority to grant the Mandatory Extension administratively, and no public notice or public hearing shall be required. In addition to the Mandatory Extension, upon Developer’s request, the City Council may agree, in its sole discretion, to further extend the Term for a total of up to three (3) additional years (each, “Discretionary Extension”) so long as consideration of this request takes place at a duly noticed public hearing. In addition to the foregoing, the Term may be further extended at any time before termination by the Parties’ mutual agreement in writing and in accordance with the Development Agreement Statute and City’s Development Agreement Procedures.

3.3. Effect of Termination.
(a) Expiration of Term. Following expiration of the Term (which shall include the Mandatory Extension and any mutually agreed upon Discretionary Extension(s)), this Development Agreement shall be deemed terminated and of no further force and effect except for any and all obligations expressly provided for herein that shall survive termination. (b) Survival of Obligations. Upon the expiration or termination of this Development Agreement as provided herein, neither Party shall have any further right or obligation with respect to the Property and the Project under this Development Agreement except for any and all obligations expressly provided for herein that shall survive the expiration or termination of this Agreement.

SECTION 4. STANDARDS, LAWS, AND PROCEDURES GOVERNING THE PROPOSED

DEVELOPMENT

4.1. Vested Right to Develop the Project. As of the Effective Date, Developer shall have the vested right to develop and operate the Project on all or portion(s) of the Property in accordance with the Applicable City Law. The overall design, development, construction, and uses of the Project and all Project Infrastructure in connection therewith, including, without limitation, the permitted uses of the Property; the density and intensity of such uses; the maximum height, bulk and size of proposed buildings; the provisions for the reservation or dedication of land for public purposes and the location of public improvements; the general location of public utilities; the construction, installation and extension of public improvements; and other terms and conditions of development applicable to the Project shall be as set forth in the Applicable City Law (collectively, “Development Standards”). In the event of any inconsistency between this Development Agreement and any Subsequent Approval(s), to the 258

9 fullest extent legally possible, the provisions of this Development Agreement shall prevail and control.

4.2. Rules, Regulations and Policies Governing Development and Operation of the Project .
(a) Applicable City Law. “Applicable City Law” shall consist of, collectively, the rules, regulations and official policies governing the Development Standards applicable to the Project on the Property existing as of the Effective Date, as supplemented and modified by the Initial Approvals, the Subsequent Approvals as and when they are issued, granted or approved, and Later Enactments, all except as otherwise provided in this Development Agreement.
(b) Processing Subsequent Approvals with City Generally. The Parties acknowledge that in order to develop the Project, Developer will need to obtain City approval of various Subsequent Approvals. For each such Subsequent Approval, Developer shall file an application with City for the Subsequent Approval at issue in accordance with the Applicable City Law, and shall pay the applicable Regulatory Processing Fees in connection therewith. City shall diligently and expeditiously process each such application in accordance with the Applicable City Law, and shall exercise any discretion City has related thereto in accordance with the terms and conditions of this Development Agreement. Except as expressly provided herein, this Development Agreement does not restrict City’s exercise of its police powers, and City reserves those powers to itself. By approving the Initial Approvals, City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Accordingly, City shall not use its authority in considering any application for a discretionary Subsequent Approval for the Project to change the policy decisions reflected by the Initial Approvals or otherwise to prevent or delay development of the Project as set forth in the Initial Approvals and herein. Instead, the Subsequent Approvals shall be deemed to be tools to implement those final policy decisions.
(c) No Conflict with Vested Rights. City, or its electorate through adoption of initiative(s), may adopt new or modified rules, regulations and policies after the Effective Date (each, a “Later Enactment” and, collectively Later Enactments”); provided, however, any such Later Enactment(s) shall be applicable to the Project on the Property if and only to the extent that application of any Later Enactment does not modify the Project; does not prevent or impede development of the Project; and does not conflict with this Development Agreement. Any Later

Enactment shall be deemed to conflict with this Development Agreement and Developer’s vested rights hereunder if said Later Enactment seeks to accomplish any one or more of the following results, either with specific reference to the Project or the development of the Property, or as part of a general enactment that would otherwise apply to the Project on the Property:
(i) Limit or reduce the density or intensity of the Project, or otherwise require a reduction in the total: number of proposed buildings, square footage, floor area ratio, number of floors, parking and/or loading spaces, and/or height of any proposed buildings or Project Infrastructure related thereto from that permitted under this Development Agreement and the Applicable City Law;
(ii) Alter or change any land use, including, without limitation, any permitted or conditionally permitted use(s) of the Project or require a change in the amount of any particular land use to be developed 259

10 on the Property from that permitted under this Development Agreement and the Applicable City Law;
(iii) Require, for any work necessary to develop the Project on the Property, the issuance of permits, approvals, or entitlements by City other than those required as of the Effective Date; (iv) Limit or control the location of buildings, structures, grading, or Project Infrastructure, or limit the hours of operation or uses on the Property, in a manner that is inconsistent with the Initial Approvals;
(v) In any manner control, delay, or limit the timing, phasing, rate or sequencing of the development of the Project (including, without limitation, the timing of approval and issuance of the approval, development or construction of all or portion(s) of the Project), or materially limit the processing of, the procuring of applications for, or approval of the Subsequent Approval(s);
(vi) Increase any Impact Fees and/or impose new Impact Fee(s), except as permitted by Section 6.2 below;
(vii) Materially increase the obligations of Developer under this Development Agreement;
(viii) Limit or restrict the availability of public utilities, services, infrastructure or facilities (for example, without limitation, water rights, water connection or sewage capacity rights, sewer connections, etc.) to the Project and/or increase the Project’s obligations with respect to the Project Infrastructure (in size, cost and/or scope) necessary to serve the Project; or
(ix) Establish, enact, increase, or impose against the Project or Property any fees, assessments, or other monetary obligations other than those specifically permitted by this Development Agreement; provided, however, that the foregoing shall not prevent or limit the imposition or collection of any generally applicable real or personal property taxes with respect to the Property or any generally applicable sales, use, excise taxes or business license fees with respect to any commercial uses within the Project.
(d) Applicable Later Enactments. To the extent that Later Enactments conflict with the vested rights hereunder, they shall not apply to the Project and/or the Property, except as provided in subsections (d)(i)-(iv) below, inclusive. Notwithstanding the foregoing, City shall not be precluded from applying a Later Enactment to the Project under the following limited circumstances:
(i) It is specifically mandated by changes in state or federal laws or regulations adopted after the Effective Date as provided in Government Code Section 65869.5;
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11 (ii) It is specifically mandated by a court of competent jurisdiction; (iii) It is specifically mandated as a result of changes to the Uniform Building Code or similar uniform construction code(s) (such as the California Fire Code) so long as such code (as modified to include the foregoing changes) has been adopted by City and is in effect on a Citywide basis; or
(iv) It is (A) required as a result of a specific and identifiable issue in each case that is presently unknown or unforeseeable that would otherwise have an immediate and substantially adverse risk on the physical health and safety of the public, and (B) based on written findings by the City Council, and transmitted to Developer, specifically identifying, based on objective and quantifiable evidence in the official record, the precise nature and extent of the dangerous or hazardous circumstance(s) requiring such condition or denial or change in Applicable City Law, why there are no feasible mitigation or alternatives to the imposition of such condition or denial or changes in the law, and how such condition or denial or new law would alleviate the dangerous or hazardous circumstance (“Public Health and Safety Exception”).

Notwithstanding anything to the contrary in the foregoing, before taking any action based on a Public Health and Safety Exception, City shall first provide Developer with written notice of the public health circumstance upon which such Public Health and Safety Exception is based, and if Developer responds in writing within fifteen (15) days confirming that Developer will correct such public health circumstance and which describes the means of such correction, and thereafter Developer diligently pursues such correction to completion, such Public Health and Safety Exception shall no longer be applicable and City shall take no further action based thereon. Developer retains the right to dispute any City reliance on the Public Health and Safety Exception.

If City imposes a Later Enactment on the Project as a result of the occurrence of one of the circumstances set forth in subsections (d)(i)-(iv) above, then the Parties shall work diligently and in good faith to amend this Development Agreement in a manner to reasonably reflect the required Later Enactment while still achieving the underlying purposes of this Development Agreement. If state and/or federal law(s) and/or regulation(s) enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Development Agreement as set forth in subsection (d)(i) above, and further if Developer does not consent to a reasonable amendment that is required to make this Development Agreement consistent therewith in accordance with Government Code Section 65869.5, City shall provide Developer written notice of the immediate suspension of this Development Agreement, and it shall remain suspended until the date the Development Agreement is so amended. (e) Enforcement. Pursuant to Section 65865.4 of the Development Agreement Statute, unless this Agreement is terminated by mutual agreement of the Parties as provided for under Section 9.3 below, or terminated due to Default pursuant to Section 9.2 below, either Party may enforce this Development Agreement notwithstanding any Later

Enactment(s).
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12 4.3. Developer’s Application for Non-City Permits, Entitlements and Approvals. City and Developer acknowledge and agree that other governmental agencies not within City’s control may possess jurisdiction to regulate aspect(s) of development of the Project on the Property with respect to certain Subsequent Approvals and that this Development Agreement does not limit the jurisdiction of such other authorities. City shall reasonably cooperate and diligently work with Developer in Developer’s effort to process and obtain approval of its applications for such Subsequent Approvals as may be necessary or desirable to develop and operate the Project; provided, however, City shall have no obligation to incur any material costs, without compensation or reimbursement, or to amend any City policy, regulation or ordinance in connection therewith.

4.4. Processing Subsequent Approvals. In accordance with Section 4.2(b) above, the Subsequent Approvals shall be deemed mechanisms to implement those final policy decisions reflected by the Initial Approvals and other provisions of Applicable City Law. City shall cooperate and diligently and expeditiously work with Developer to promptly process and consider all applications for Subsequent Approvals (provided such application(s) are in a proper form and include all reasonably required information and payment of any and all applicable Regulatory Processing Fees), in accordance with Developer’s vested rights granted hereunder, and taking into consideration such factors, among others, as cost efficiencies, economies of scale, and appropriate engineering practices. In the event that Developer determines that it would be necessary to retain additional personnel or outside consultant(s) to assist City to expeditiously process any Subsequent Approval(s), Developer may request, and City may consider, retaining such additional personnel or consultant(s), and City shall direct any such additional personnel or consultant(s) to work cooperatively and in a cost-efficient and timely manner with Developer to accomplish the objectives under this Section 4.4; provided, however, that Developer shall pay all actual costs associated therewith, although said personnel or consultant(s) shall be under City’s direction and City has sole authority over whether to hire or retain any additional personnel or select any consultants. Subject to Section 4.2(b) above and other terms of this Development Agreement and Developer’s rights hereunder, City shall retain its discretionary authority in its consideration of any and all Subsequent Approvals that involve discretionary decisions.

4.5. Compliance with CEQA. The Project EIR, which has been certified by City as being in compliance with CEQA, addresses the potential environmental impacts of the Project as it is described in the Initial Approvals. To the extent that the Project will require the issuance of Subsequent Approvals that are discretionary in nature, City shall rely on the Project EIR to satisfy the requirements of CEQA to the fullest extent permissible by CEQA and City shall not require a new initial study, negative declaration or mitigated negative declaration, or subsequent or supplemental EIR unless specifically required by CEQA and shall not impose on the Project any additional mitigation measures other than that which is specifically required by CEQA.

4.6. Life of Project Approvals. The life of all Initial Approvals and any and all Subsequent Approvals as and when granted, approved or issued, including, without limitation, tentative subdivision maps or parcel maps (pursuant to Government Code Section 66452.6(a)), conditional use permit(s) and development and/or site plan review, shall be deemed extended for the longer of the Term of this Development Agreement or the term otherwise applicable to such Initial Approval or Subsequent Approval. Any tentative map prepared for the Project shall comply with Government Code Section 66473.7.

4.7. Timing of Development. The Parties acknowledge and agree that: (a) Developer cannot at this time predict if or when, or the rate at which, the Project may be constructed; 262

13 (b) there is no requirement that Developer commence or complete construction of the Project at all or within any particular period of time during the Term; and (c) except if and to the extent expressly required by the terms of this Development Agreement, City shall not impose any such timing requirement on any Subsequent Approval(s). Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465 that failure of the parties therein to provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over the parties’ agreement, it is the Parties’ intent to cure that deficiency by acknowledging and providing that Developer shall have the right to construct the Project (or any portion(s) thereof) in such order, at such rate, and at such time(s) as Developer deems appropriate within the exercise of its sole business judgment, subject only to City Applicable Law and the provisions of this Development Agreement.

4.8. Wastewater Service.
(a) Wastewater Service to Project. City shall reserve and allocate sufficient wastewater treatment and conveyance capacity to serve the Project consistent with the Project EIR and the City Wastewater Master Plan, and shall serve the Project upon application by Developer pursuant to the Project Approvals and payment of applicable connection fees. This reservation and allocation by the City shall be based on the Project as it is described in the Initial Approvals.
(b) Reserved.

SECTION 5. DEVELOPER’S OBLIGATIONS RELATING TO PROJECT DEVELOPMENT

GENERALLY

5.1. Phasing of Project Development. Development of the Project is intended to be phased, as generally described and depicted in the Initial Approvals. Notwithstanding the foregoing and further subject to Section 4.7 above, Developer shall have the right, in its discretion, to commence and complete any Project phase(s) of construction sequentially or concurrently pursuant to the terms and conditions of this Development Agreement and the Project Approvals, subject to City’s reasonable review to confirm the proposed phasing is consistent with the Initial Approvals.

5.2. Required Project Infrastructure Generally. City’s determination regarding which improvements are necessary for Developer to develop the Project shall be consistent with Developer’s vested rights hereunder, and shall be governed by the Applicable City Law. The Parties further agree that no additional requirements on Developer with respect to the Project Infrastructure may be imposed on the Project beyond those necessary to serve the proposed uses and to provide for the intended function of the improvements at issue. Upon Developer’s request, and at Developer’s sole cost, City shall cooperate with Developer (a) to locate any new City easements required for the Project so as to minimize interference with development of the Project, and (b) in Developer’s efforts to relocate or remove easements to facilitate development of the Project, subject to Developer funding all costs related thereto.

5.3. General Construction and Security Obligations. In constructing any Project Infrastructure, Developer shall (a) provide adequate security in accordance with the requirements of the Subdivision Map Act and City’s Subdivision Ordinance; and (b) promptly and diligently oversee and coordinate the construction of said infrastructure in a good and workmanlike manner and free from all defects, and in accordance with the applicable Citywide infrastructure master plans, the Project Approvals, and any other applicable City standards 263

14 pursuant to the Applicable City Law. City shall use diligent and good faith efforts to timely prepare, process and consider any Subdivision Improvement Agreements (or similar improvement agreements) that are required to implement the Project upon Developer’s request, which shall be in substantially the same form as is typically used by City in accordance with the Subdivision Map Act and City’s Subdivision Ordinance and which shall be consistent with this Development Agreement and reasonably acceptable to Developer.

5.4. Inspection and Acceptance of Improvements. Any Project Infrastructure constructed by Developer pursuant to this Development Agreement shall be subject to all required inspections, including the final inspection, and reasonable approval by the City Engineer in accordance with City’s Subdivision Ordinance and the Subdivision Map Act. Upon inspection, the following shall govern:
(a) Meet and Confer Process. If the City Engineer reasonably determines, consistent with Developer’s vested rights hereunder, that the improvement at issue does not meet the applicable requirements and standards, City shall reasonably document this determination and promptly provide this information to Developer. Developer and City then shall, within seven (7) days of the City Engineer’s determination or at such other mutually acceptable time, meet and confer regarding any modifications to said improvement necessary to achieve conformity with the applicable requirements and standards. (b) Remedy of Any Improvement Deficiencies. Following any meet and conferral process pursuant to Section 5.4(a) above, if the Parties have not reached a mutually acceptable approach to addressing any necessary modifications identified by City, and/or Developer has not corrected, or agreed to correct by a date certain reasonably acceptable to City, the identified deficiencies in the improvement at issue, then City shall have the right, at Developer’s sole cost and expense, to remedy such deficiencies and complete the construction of said improvement in accordance with the applicable requirements and standards pursuant to the terms and conditions of the applicable Subdivision Improvement Agreement. (c) Roadway Construction. For all Project roadways constructed by Developer, Developer shall do so pursuant to the Project Approvals, including installing identified driveways, curb, gutter and streetlights and as well as all required service facilities (i.e., potable water, wastewater, storm lines, recycled water) concurrently with the installation of said roadways. Developer shall be permitted to complete any required widening or improvements within any existing City roadways or rights-of-way if Developer elects to perform this work in accordance with applicable laws and regulations. Provided, however, no roadway frontage improvements in back of curb shall be required to be constructed until such time as the lot fronting such street is developed.
(d) For Master Plan Infrastructure that Developer installs, including, for example and without limitation, planned roadway improvements on Shirk Street that consist of all pavement and other improvements outside of eight (8) feet from face of curb, Developer shall obtain fee credit and/or reimbursement pursuant to the City Applicable Law, including but not limited to the City Transportation Impact Fee Program.
(e) City intends to substantially complete construction of the planned Riggin Avenue roadway improvements pursuant to the City’s approved Capital Improvement Program by September 30, 2025 (as such date may be extended in the event of any Excused Delay). 264

15 (f) To the extent Developer is required to install Master Plan Infrastructure (e.g., intersection improvements) that benefit other third-party property owner(s), then City shall facilitate reimbursement of Developer’s costs and enter into a Reimbursement Agreement with the Developer. Notwithstanding anything to the contrary in the foregoing, City shall have no obligation to directly reimburse Developer under this subsection (f).

SECTION 6. FEES AND OTHER PAYMENT OBLIGATIONS.

6.1. Regulatory Processing Fees. Developer shall pay all Regulatory Processing Fees required by City under then-current regulations for processing applications for Subsequent Approvals. Without limiting the foregoing, Developer shall reimburse City or pay directly all reasonable and actual costs relating to the hiring of consultants and the performing of studies as may be necessary to review or process any applications for Subsequent Approvals or perform any related environmental review. Prior to engaging the services of any such consultant or authorizing the expenditure of any funds for such consultant, City shall consult with Developer in an effort to mutually agree upon terms regarding (a) the scope of work to be performed, (b) the projected costs associated with the work, and (c) the particular consultant that would be engaged to perform the work.

6.2. Impact Fees. Developer shall be required to pay all City Impact Fees that are not Regulatory Processing Fees that are in effect as of the Effective Date for a period of five (5) years from the Effective Date (“Fee Vesting Period”); thereafter, Developer shall be required to pay all City Impact Fees that are then in effect. The Impact Fees set forth in attached Exhibit 2 constitute all Impact Fees (both in type and amount) that are in effect on the Effective Date, and City shall not seek to impose any new Impact Fees (either in amount or type) on the Project during the Fee Vesting Period.

SECTION 7. PERIODIC COMPLIANCE REVIEW; NOTICE OF COMPLIANCE.

7.1. Periodic Compliance Review. No later than ten (10) months after the Effective Date, and no later than every twelve (12) months thereafter, Developer and City shall conduct the periodic review pursuant to City’s Development Agreement Procedures and the Development Agreement Statute (“Periodic Review”). In conducting this Periodic Review, City acknowledges and agrees that any finding of non-compliance on Developer’s part shall be limited in effect to Developer’s interest in the Property. Furthermore, City acknowledges and agrees that in the event and to the extent Developer has assigned all or a portion of its rights and obligations to other Assignee(s) pursuant to Section 11.1 below, then any such Assignee(s) shall be responsible for conducting the Periodic Review as it relates to their respective rights and obligations hereunder, although Developer shall cooperate with respect to reasonable information requests from any Assignee(s) in order to facilitate the Periodic Review process. If, as a result of City’s Periodic Review, City determines, on the basis of substantial evidence, that Developer has not complied in good faith with the terms of this Development Agreement, City may terminate this Development Agreement in accordance with the Development Agreement Statute and City’s Development Agreement Procedures. Provided, however, Developer reserves any and all rights it may have to challenge in court City’s termination of this Development Agreement under this Section 7.1 and the basis therefor. If more than one Developer has obtained rights and assumed obligations hereunder as a result of an Assignment pursuant to Section 11.1 below, then termination of this Development Agreement as a result of a Developer Default shall extend only to those rights and obligations of the applicable Developer, and shall not terminate as to those rights and obligations of Developer(s) that are not in Default. Notwithstanding anything to the contrary in the foregoing, the Parties’ collective 265

16 failure to complete the Periodic Review during a particular year shall not constitute a Default hereunder.

7.2. Notice of Compliance. At Developer’s request, City shall, from time to time, promptly execute and deliver to Developer a written “Notice of Compliance” in recordable form, duly executed and acknowledged by City, which certifies the following:
(a) This Development Agreement is in full force and effect; (b) This Development Agreement has not been amended or, or if so amended, identifying the amendment(s);
(c) Developer is not in Default of the performance of its obligations, or if in Default, to describe therein the nature and extent of any such Default(s); (d) City is not in Default of the performance of its obligations, or if in Default, to describe therein the nature and extent of any such Default(s); and (e) Any other information reasonably requested by Developer.

The Planning and Community Preservation Director shall execute and return such Notice of Compliance within fifteen (15) days following a request therefor. Developer shall have the right, at its sole discretion, to record the Notice of Compliance. Developer and City acknowledge that a Notice of Compliance hereunder may be relied upon by any existing or potential Mortgage Holders, tenant(s), and/or other Assignee(s). If City fails to deliver a Notice of Compliance within the aforementioned fifteen (15) day period, then Developer shall have the right to deliver a second request clearly indicating thereon that failure of City to respond within five (5) days of its receipt of such second notice shall be deemed City’s approval of all of the terms and conditions set forth in the Notice of Compliance.

SECTION 8. DEFAULT, RIGHTS TO CURE AND WAIVERS; LEGAL ACTIONS; RIGHTS AND REMEDIES; EXCUSED DELAY; MORTGAGE HOLDER RIGHTS.

8.1. Default and Cure; Dispute Resolution. Subject to any Excused Delay, failure or delay by either Party to timely perform any material term or condition of this Development Agreement constitutes a Default hereunder, but only if the Party who so fails or delays does not commence to cure, correct or remedy such failure or delay within sixty (60) days after receipt of a written notice (“Notice of Default”) from the non-Defaulting Party specifying such failure or delay, and does not thereafter prosecute such cure, correction or remedy with diligence to completion (in such case, a “Default”). City shall continue to process in good faith development applications for any and all Subsequent Approval(s) during any cure period, but may delay taking formal action on any such application if it relates to a proposal for the Property with respect to which there is an alleged Developer Default whose interest is the subject of said proposal until such time as the subject Developer Default is resolved pursuant to this Section 8.

Upon occurrence of a Default and without any right to further notice or additional cure period, the non-Defaulting Party shall have all remedies available to it under this Development Agreement as set forth in Section 8.3 below; provided, however, neither Party shall have the right to recover any punitive, consequential, or special damages. Failure or delay in giving any Notice of Default shall not constitute a waiver of any Default and any waiver of a Default shall be in writing and be signed by the non-defaulting Party. For purposes of instituting a legal action 266

17 under this Development Agreement, any City Council determination as it relates to an alleged Default hereunder shall be deemed a final agency action. Except as otherwise provided in this Development Agreement, waiver by either Party of the performance of any term or condition herein shall not invalidate this Development Agreement, nor shall it be considered a waiver of any other term or condition. Waiver by either Party of the time for performing any act shall not constitute a waiver of time for performing any other act or an identical act required to be performed at a later time. The delay or forbearance by either Party in exercising any remedy or right as to any Default shall not operate as a waiver of any Default or of any rights or remedies or to deprive such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. Nothing in this Development Agreement shall relieve a non-Defaulting Party from satisfying any and all applicable requirements of the California Government Claims Act.

The non-Defaulting Party shall provide the Defaulting Party written notice (“Dispute Notice”) that specifies, in reasonable detail, the reasons that a Default and dispute exists, and what, if any, reasonable actions may be taken to cure the Default and resolve the dispute.

Within thirty (30) days after the Dispute Notice is given, the Parties shall meet in person and confer in good faith in an attempt to resolve the dispute. In addition to any other rights or remedies, if, following the meet and confer process, the non-Defaulting Party determines that the dispute cannot be resolved informally, the non-Defaulting Party may institute legal action to cure, correct, or remedy the Default, enforce any covenant or agreement herein, enforce by specific performance the obligations and rights of the Parties hereto, or obtain any other remedy consistent with this Development Agreement, subject to cure rights provided for by this Section 8.1. Notwithstanding anything to the contrary in the foregoing, if more than one Developer has obtained rights and assumed obligations hereunder as a result of an Assignment pursuant to Section 11.1 below, then provisions under this Section 8 shall apply only to the extent those rights and obligations so assumed by a Developer are implicated with respect to a Default hereunder. The inability of the Parties to timely meet and confer or to resolve any matter pursuant to this Section 8.1 shall not be deemed a Default hereunder.

8.2. Legal Actions.
(a) Institution of Legal Actions. Upon occurrence of a Default (but subject to cure rights set forth in Section 8.1 above) and further subject to the Parties’ good faith participation in the meet and confer process described in Section 8.1 above, the non-Defaulting Party shall have all rights and remedies available to it under this Development Agreement and other applicable laws and regulations, including, without limitation, the right to institute a legal action or proceeding to cure, correct or remedy such Default. Legal actions must be instituted and maintained in the Superior Court of the County of Tulare, State of California, or in any other appropriate court in that county.
(b) Applicable Law and Forum. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement without regard to conflict of law principles.
(c) Acceptance of Service of Process. If any legal action is commenced by Developer against City, service of process on City shall be made by personal service upon the City Clerk, or in such other manner as may be provided by law. If any legal action is commenced by City against Developer, service of process on Developer shall be made by personal service upon Developer at the address indicated in Section 12.10 below, or in such other manner as may be provided by law.
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18 (d) Attorney’s Fees. In the event of any litigation by either Party pertaining to this Development Agreement, the prevailing Party in such litigation, in addition to any other relief which may be granted, shall be entitled to its reasonable litigation costs and expenses, including, without limitation, reasonable attorneys’ fees.

8.3. Rights and Remedies: Cumulative Nature. Except as otherwise expressly stated in this Development Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party.

8.4. Excused Delay: Extension of Times of Performance. In addition to the specific provisions of this Development Agreement, performance by either Party hereunder shall not be deemed to be in Default when the delay or Default is due to war; infectious disease; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; pandemics; global and/or national health crises; epidemics or pandemics; quarantine or shelter in place restrictions and/or government orders related thereto; freight embargoes; non-City governmental restrictions that prevent compliance; unusually severe weather that prevents, limits, delays or hinders the ability to perform; environmental conditions discovered that delay construction or development, including delays resulting from investigation and/or remediation of such conditions; initiatives, referenda, Third-Party Litigation challenging this Development Agreement and/or other Project Approval(s) on CEQA or any other grounds; acts or the failure to act of a governmental or quasi-governmental authority (except that acts or the failure to act of City shall not excuse performance by City); or any other similar causes beyond the control or without the fault of the Party claiming an extension of time to perform (each, “Excused Delay”). Excused Delay shall also include (provided the Party seeking the extension is acting with reasonable diligence), additional reasonable period(s) (a) required to complete compliance with and/or obtain approval, adoption or certification (as applicable) of any supplemental or subsequent environmental analysis and/or documentation required for the Project or any portion(s) thereof; (b) the full and final resolution of any Third-Party Litigation filed (and if no Thirty-Party Litigation has been filed, then the running of all applicable statutes of limitations period(s)) challenging this Development Agreement and/or other Project Approval(s) on CEQA or any other grounds in a manner that is acceptable to Developer in its sole and absolute discretion; and (c) required to complete any pending application or request before City for an action or approval under this Development Agreement or before City for an action or approval under the Project Approvals. Notwithstanding anything to the contrary in the foregoing, Developer’s failure to obtain financing for the Project shall not be considered an Excused Delay. City’s financial condition shall similarly not be considered an Excused Delay that can be relied on by City for failure to satisfy any City obligation hereunder.

Notwithstanding the foregoing or anything else to the contrary contained in this Development Agreement, no delay shall be deemed an Excused Delay unless the Party claiming the benefit of this provision shall, as a condition thereto, give notice to the other Party in writing within fifteen (15) days of the declaring Party having actual knowledge of the incident specifying with reasonable particularity the nature thereof, the reason therefor, the date and time such incident occurred and a reasonable estimate of the period that such incident will delay the fulfillment of obligations contained herein. If any notice of Excused Delay is given later than fifteen (15) days after the Party declaring such delay has actual knowledge of the existence of the Excused Delay, then the Excused Delay occurring during the period commencing on the sixteenth (16th) day after the commencement of the Excused Delay and ending on the date of such notice, shall be disregarded and deemed not to have occurred. 268

19 In the event of an Excused Delay, the Party delayed shall continue to exercise reasonable diligence to minimize the period of the delay. An extension of time for any such cause shall be limited to the period of the Excused Delay, and shall commence to run from the time of the commencement of the cause. Times of performance under this Development Agreement may also be extended by mutual written agreement by City and Developer, with the City Manager having the authority on behalf of City to so consent.

8.5. Rights of Mortgage Holders of Approved Security Interests in the Property. (a) Developer’s Default Shall Not Defeat Mortgage Lien. If Developer Defaults, any such Default shall not defeat or render invalid the lien of any Mortgage(s) made in good faith and for value as to the Property, or any portion(s) thereof or interest(s) therein; provided, however, that unless otherwise provided herein, the terms and conditions of this Development Agreement shall be binding and effective against any and all Mortgage Holder(s) whose interest is acquired by foreclosure, trustee’s sale or otherwise. (b) Holder Not Obligated to Commence or Complete Project. A Mortgage Holder shall in no way be obligated by the provisions of this Development Agreement to commence or complete construction of any Project phase(s) or to guarantee any such commencement and/or completion of same nor shall any covenant or any provision in the conveyances from City to Developer evidencing the realty comprising the Property or any part thereof be construed so to obligate such Holder; provided, however, nothing in this Development Agreement shall be deemed to or be construed to permit any such Mortgage Holder to devote the Property or any portion(s) thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Development Agreement and the other Project Approvals. (c) Notice of Default to Mortgagee, Deed of Trust or Other Security Interest Holders. With respect to any Mortgage granted by Developer on the Property or any portion(s) thereof, whenever City shall deliver any notice or demand to Developer with respect to any Default by Developer, City shall at the same time deliver a copy of such notice or demand to each Mortgage Holder of record who has previously made a written request to City therefor, or to the representative of such Mortgage Holder as may be identified in such a written request.

No Notice of Default shall be effective as to the Mortgage Holder unless such notice is given. (d) Right to Cure Developer Default Hereunder. Each Mortgage Holder (insofar as the rights of City are concerned) shall have the right, at its option, within ninety (90) days after the receipt of the Notice of Default, to:
(1) Cure or remedy or commence to cure or remedy any such Default and diligently pursue said cure until the same is completed, and (2) Add the cost of said cure to the Mortgage debt and the lien of its Mortgage.

Provided that in the case of a Default that cannot with diligence be remedied or cured within such ninety (90) day period, such Mortgage Holder shall have additional time as reasonably necessary to remedy or cure such Default.

If possession of the Property (or portion(s) thereof) is required to effectuate such cure or remedy, the Mortgage Holder shall be deemed to have timely cured or remedied if it 269

20 commences the proceedings necessary to obtain possession thereof within ninety (90) days, diligently pursues such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy (the foregoing time periods being subject to extension during the period that such Mortgage Holder is precluded from taking or pursuing any such action as a consequence of any bankruptcy stay or other court order).

If there is more than one such Mortgage Holder, the right to cure or remedy a Default of Developer under this Section 8.5 shall be exercised by the Mortgage Holder first in priority or as the holders may otherwise agree among themselves, but there shall be only one exercise of such right to cure and remedy a Default of Developer under this Section 8.5.

Nothing in this Development Agreement shall be deemed to permit or authorize such Mortgage Holder to commence or continue the construction of any Project phase(s) (beyond the extent necessary to preserve or protect the improvements or construction already made) without first having expressly assumed Developer’s obligations to City with respect to such improvements by written agreement with respect to the Property or any portion(s) thereof in which the Mortgage Holder has an interest.
(e) Rights upon Failure of Holder to Cure Developer Default on Mortgage.

During the Term of this Development Agreement and subject to any rights of Developer to challenge, cure, or satisfy any liens or encumbrances on the Property or any portion(s) thereof, in any case where thirty (30) days after default by Developer on a Mortgage and Developer has not exercised the option to cure afforded in the Mortgage or if it has exercised such option and has not proceeded diligently to cure, City may cure the Mortgage default prior to completion of any foreclosure. In such event, City shall be entitled to reimbursement from Developer of all costs and expenses incurred by City in curing the Mortgage default, including legal costs and attorneys’ fees, which right of reimbursement shall be secured by a lien upon the Property or portion(s) thereof to the extent of such costs and expenses. Any such lien shall be subject to:
(i) Any Mortgage for financing permitted by this Development Agreement; and
(ii) Any rights or interests provided in this Development Agreement for the protection of such Mortgage Holders.

City shall execute from time to time any and all documentation reasonably requested by Developer to effect such subordination.

Nothing contained herein shall be deemed to impose upon City any affirmative obligation to cure a Mortgage default by Developer (by the payment of money, construction or otherwise) with respect to the Property in the event of its enforcement of any such lien. (f) Modifications. If a Mortgage Holder should, as a condition of providing financing for development of all or a portion of the Project, request any modification of this Development Agreement in order to protect its interest in the Property or this Development Agreement, then City shall consider such request consistent with its land use authority and processed as an amendment pursuant to the terms of Section 12.5(b) below; provided, however, that any such amendment shall affect only those rights and obligations of such Mortgage Holder and City but not those of any other Developer(s) or Mortgage Holder(s) without their respective written consent.
270

21 SECTION 9. TERMINATION.

9.1. Termination Upon Completion of Project or Expiration of Term. This Development Agreement shall terminate upon the earlier of the expiration of the Term or when the Project on the Property has been fully developed in accordance with the Project Approvals, as evidenced by (a) the issuance of the last Certificate of Occupancy necessary for Project buildout, and (b) written documentation approved by both Parties that confirms Parties’ respective obligations in connection therewith and with this Development Agreement have been fully satisfied.

9.2. Termination Due to Default. After notice and expiration of the sixty (60) day cure period as specified in Section 8.1 above, if the Default has not been cured or it is not being diligently cured in the manner set forth above, the noticing Party may, at its option, give notice of its intent to terminate this Development Agreement pursuant to the Development Agreement Statute and City’s Development Agreement Procedures (“Notice of Intent to Terminate”).

Within thirty (30) days of receipt of a Notice of Intent to Terminate, the matter shall be scheduled for consideration and review in the manner set forth in the Development Agreement Statute and City’s Development Agreement Procedures. Following consideration of the evidence presented in said review, the Party alleging the Default may give written notice of termination of this Development Agreement. If a Party elects to terminate as provided herein, upon sixty (60) days’ written notice of termination, this Development Agreement shall be terminated as it relates to the Defaulting Party’s rights and obligations hereunder. Notwithstanding the foregoing, a written notice of termination given under this Section 9.2 is effective to terminate the obligations of the noticing Party only if a Default has occurred. If the noticing Party is not so authorized to terminate, the non-noticing Party shall have all rights and remedies provided herein or under applicable laws and regulations, including, without limitation, the right to specific performance of the Defaulting Party’s obligations under this Development Agreement. Once a Party alleging Default has given a written notice of termination, legal proceedings may be instituted to obtain a declaratory judgment determining the respective termination rights and obligations under this Development Agreement. Notwithstanding the foregoing, any such Default and related termination shall only extend to the Defaulting Party’s rights and obligations hereunder and shall not affect the rights and obligations of any other Assignee who has acquired other portion(s) of the Property in accordance with Section 11.1 below.

9.3. Termination by Mutual Consent. This Development Agreement may be terminated by mutual consent of the Parties in the manner provided in the Development Agreement Statute and in City’s Development Agreement Procedures.

9.4. Documentation of Termination. While the Parties intend the foregoing termination to be automatic and self-executing upon the relevant trigger(s), City agrees to promptly execute and deliver such documents and instruments in recordable form as Developer may reasonably request in order to evidence the termination of this Development Agreement.

Thereafter, Developer may cause a notice of such termination to be duly recorded in the official records of Tulare County.

SECTION 10. PARTICIPATION IN THIRD-PARTY LITIGATION; INDEMNITY.

10.1. In General. The Parties acknowledge and agree that each shall have the right to elect to defend any Third-Party Litigation subject to the obligations of this Section 10, which shall survive the expiration or termination of this Development Agreement. 271

22 10.2. Developer Indemnification in the Event of Third-Party Litigation. Subject to Section 10.3 below, Developer agrees to indemnify City and shall hold and save City harmless from any and all Claims concerning any Third-Party Litigation except if and to the extent said Claims arise from City’s sole negligence, willful misconduct, or fraudulent acts. “Third-Party Litigation” shall mean any court action or proceeding instituted by any third party (i.e., any private individual or entity or any non-City governmental or quasi-governmental authority) solely for the purpose of challenging the validity of any provision of this Development Agreement, the other Initial Approvals, the Subsequent Approvals as and when issued, granted or approved, or any CEQA issue(s) or document(s) approved in connection therewith. City shall provide Developer with prompt notice of the pendency of any action or proceeding for which it believes it is entitled to indemnity under this Section 10.2 and request that Developer defend it regarding such action or proceeding (but any delay or failure to notify Developer shall reduce Developer’s obligations to so defend or indemnify to the extent of any actual prejudice suffered by Developer due to the delay or failure). Developer’s indemnification obligations under this Section 10.2 shall survive the expiration or termination of this Development Agreement.

10.3. Cooperation in the Event of Third-Party Litigation. Subject to Section 10.4 below, Developer and City shall cooperate defending same pursuant to this Section 10.3, and the Parties shall keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information. (a) Meet and Confer. If Third-Party Litigation is filed, upon receipt of the complaint or petition, the Parties shall have twenty (20) days to meet and confer regarding the merits of such Third-Party Litigation to determine whether each Party elects to defend same and if so, whether they elect to so jointly defend, which period may be extended by the Parties’ mutual agreement so long as it does not adversely and materially impact any litigation deadlines. Subject to an election to defend, City and Developer shall mutually commit to meet all required litigation timelines and deadlines. If City and Developer agree jointly to defend the Third-Party Litigation, they shall expeditiously enter a joint defense agreement, which shall include, among other things, provisions regarding the preservation of confidential communications. The City Manager is authorized to negotiate and enter such joint defense agreement in a form reasonably acceptable to the City Attorney and Developer’s attorneys.

Such joint defense agreement shall also provide that any proposed settlement of the Third-Party Litigation shall be subject to Developer’s approval, in its reasonable discretion, except in the event City elects to solely defend under Section 10.4 below. If the terms of the proposed settlement would constitute an amendment of this Development Agreement, the settlement shall not become effective unless such amendment is mutually approved by the Parties in accordance with applicable laws and regulations.

10.4. Defense Election. If, after meeting and conferring, the Parties mutually agree (each in its sole discretion) to defend against the Third-Party Litigation, then the following shall apply:
(a) Developer shall take the lead role defending such Third-Party Litigation and may, in its sole discretion, elect to be represented by the legal counsel of its choice. (b) City may, in its sole discretion, elect to be separately represented by the City Attorney and designated litigation counsel for City, with the reasonable costs of such representation to be paid by Developer. Provided, however, if City elects to proceed with any outside legal counsel (other than the designated litigation counsel for City) of its choice in 272

23 addition to the City Attorney, then City shall be solely responsible for any such additional legal fees and costs.
(c) To the extent due hereunder, Developer shall reimburse City, within twenty (20) business days following City’s written demand therefor, reasonable legal fees and costs incurred by the City Attorney, as well as court costs, incurred in the month prior in connection with the Third-Party Litigation. Provided, however, that Developer shall not be required to pay any internal City staff costs associated with defending the Third-Party Litigation, nor any outside City legal costs (other than the designated litigation counsel for City); moreover, City shall provide Developer with reasonably sufficient information to document the basis for said request for payment.

The Parties intend that City’s role under this Section 10.4 shall be primarily oversight although City reserves its right to protect City’s interests, and City shall make good faith efforts to maximize coordination and minimize its legal costs (for example, minimizing filing separate briefs, and duplication of effort to the extent feasible).

If, after meeting and conferring, Developer and City both elect not to defend against the Third- Party Litigation, Developer shall remain obligated to indemnify and hold City harmless from and against any damages, attorneys’ fees or cost awards that are actually awarded by a court of competent jurisdiction in accordance with Section 10.2 above.

In the alternative, if Developer elects, in its sole and absolute discretion, not to defend against the Third-Party Litigation, it shall deliver written notice to City regarding such decision. If Developer elects not to defend, City has the right, but not the obligation, in its sole discretion to proceed to defend against the Third-Party Litigation at its sole cost and expense, in which case City shall then take the lead role defending such Third-Party Litigation. If, following receipt of Developer’s notice of election not to defend, City elects to defend and takes the lead role in such litigation, then City shall be solely responsible for all damages, attorney’s fees or cost awards, if any, which are actually incurred or awarded from and after such time City has made such election. Provided, however, that City shall have no right to approve any settlement obligating Developer to make any payment(s), incur any liability or take any action(s) related thereto.

10.5. Processing During Third Party Litigation. The filing of any Third-Party Litigation against City or Developer shall not delay, suspend or stop the development, processing or construction of the Project or the processing, consideration and issuance of Subsequent Approval(s) unless the subject Third-Party petitioner obtains an injunction or other court order preventing the activity at issue.

SECTION 11. ASSIGNMENT AND ASSUMPTION; RIGHTS AND DUTIES OF MORTGAGEES.

11.1. Assignment of Rights, Interests and Obligations. Subject to compliance with this Section 11, Developer may sell, assign or transfer its interest in the Property (all or any portion(s) thereof) and related Project Approvals to any individual or entity (“Assignee”) at any time during the Term of this Development Agreement without obtaining City’s consent.

Developer shall provide written notice to City of any such assignment or transfer of its interest in the Property, or any portion(s) thereof (each, an “Assignment”) by providing City with a copy of the subject Assignment Agreement pursuant to Section 11.2 below. 273

24 11.2. Assumption of Rights, Interests and Obligations. Express written assumption by an Assignee of the obligations and other terms and conditions of this Development Agreement with respect to the Property or such portion(s) thereof sold, assigned or transferred, shall relieve Developer of such obligations and other terms and conditions so expressly assumed. Any such assumption agreement shall be in substantially the same form as attached Exhibit 3 (“Assignment Agreement”). No later than ten (10) business days after the date said Assignment becomes effective, Developer shall deliver to City a fully executed and acknowledged original of the Assignment Agreement. Developer shall duly record the Assignment Agreement with the County Recorder within ten (10) days of execution and acknowledgment. Upon the recordation of each such Assignment Agreement, Developer shall be released and have no further obligations or liability under this Development Agreement with respect to the interest(s) which are Assigned and the obligations assumed under the relevant Assignment Agreement.

SECTION 12. GENERAL PROVISIONS.

12.1. Independent Contractors. Each Party is an independent contractor and shall be solely responsible for the employment, acts, omissions, control and directing of its employees.

All persons employed or utilized by Developer in connection with implementing the Project shall not be considered employees of City in any respect. Except as expressly set forth herein, nothing contained in this Development Agreement shall authorize or empower either Party to assume or create any obligation whatsoever, express or implied, on behalf of the other Party or to bind the other Party or to make any representation, warranty or commitment on behalf of the other Party.

12.2. Severability of Provisions. If any term or condition contained herein is held to be invalid, void or otherwise unenforceable by any court of competent jurisdiction, such holding shall in no way affect the validity or enforceability of any other term or condition contained herein and the remaining provisions shall continue in full force and effect.

12.3. Further Documents; Other Necessary Acts. Each Party shall execute, acknowledge and deliver to the other Party all further instruments and documents and shall take such further actions as may be reasonably necessary to carry out this Agreement and the Project Approvals in order to provide or secure to the other Party the full and complete enjoyment of the rights and privileges granted hereunder.

12.4. Time of Essence. Time is of the essence in the performance of each and every covenant and obligation to be performed by the Parties hereunder.

12.5. Amendments.
(a) Amendment by Written Consent. Except as otherwise expressly provided for herein, this Development Agreement may be amended only by the Parties’ mutual written consent.
(b) Major and Minor Amendments. Any amendment to this Development Agreement that affects or relates to: (i) the Term; (ii) permitted uses on the Property; (iii) provisions for the reservation or dedication of land; (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions; (v) the density or intensity of the use of the Property or the maximum height or size of proposed buildings; or (vi) monetary contributions by Developer, shall be deemed a “Major Amendment” and shall require giving of notice and a 274

25 public hearing before the City Council and otherwise adhere to the requirements set forth in the Development Agreement Statute. Any amendment that is not a Major Amendment shall be deemed a “Minor Amendment” and shall not, except to the extent otherwise required by applicable laws, require notice of public hearing before the parties may execute an amendment hereto.
(c) Authority to Consider Minor Amendment. The City Manager or his or her designee shall have the authority to reasonably determine if an amendment is a Major Amendment or a Minor Amendment, as well as the authority to review and approve Minor Amendment(s) administratively without public notice or hearing. (d) Recordation of Amendment. In the event the Parties amend this Development Agreement, City shall cause notice of such action to be duly recorded in the official records of Tulare County within ten (10) days of such action.

12.6. Project Is A Private Undertaking. The Project is a private undertaking of Developer. Nothing in this Development Agreement is intended to or does establish the parties as partners, co-venturers, or principal and agent with one another.

12.7. Covenants Running With The Land. This Development Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, successors and Assignees (including any and all persons acquiring all or any portion of the Property, or any interest therein, whether by operation of law or in any manner whatsoever). All of the provisions of this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law, including, without limitation, Civil Code Section 1468.

12.8. Recordation Of Agreement. Within ten (10) days of the Effective Date, City shall cause this Development Agreement to be duly recorded in the official records of Tulare County.

12.9. Good Faith and Fair Dealing. The Parties shall cooperate with each other and act in good faith in complying with the provisions of this Agreement. In their course of performance under this Agreement, the Parties shall cooperate and shall undertake such actions as may be reasonably necessary and appropriate to implement the Project as contemplated by this Agreement.

12.10. Notices, Demands and Communications Between the Parties. Any notice, consent, report, demand, document or other such item (each, a “Notice”) to be given under this Agreement must be in writing and shall be given by: (a) certified mail, postage prepaid, return receipt requested; (b) personal delivery; (c) reputable “overnight courier” such as Federal Express (or similar courier company); or (d) email, to the Party to whom the Notice is directed at the address of the Party set forth below, or at any other address as that party may from time to time by written notice designate to the other. Any Notice so given shall be deemed to have been given upon receipt or refusal to accept delivery except that any Notice sent via email shall be deemed given on the date sent (as evidenced by the sender’s “sent mail” mailbox) if sent prior to 5:00 p.m. (Pacific Time) on a business day and, otherwise, on the next succeeding business day.

City: City of Visalia
Attn: Planning and Community Preservation Director
275

26 315 E. Acequia Avenue
Visalia, CA 93291
Email: [__________]

Copy to: City of Visalia
Attn: City Attorney
220 N. Santa Fe St.

Visalia, CA 93292
Email: [_______________]

Developer: Seefried Industrial Properties, Inc.

Attn: Jason Quintel
2201 East Camelback Road, Suite 222
Phoenix, AZ 85016
Email: [email protected]
Larry J. Ritchie Family Limited Partnership
Attn: Larry Ritchie
[____________]
Email: [____________]
Jeffrey B. Ritchie Family Limited Partnership
Attn: Jeffrey Ritchie
[____________]
Email: [____________]

and: GVR Partners LLP
Attn: Nadia Costa
3333 Michelson Drive, Suite 300
Irvine, CA 92612
Email: [email protected]

Notices sent by a Party’s attorney on behalf of such Party shall be deemed delivered to such Party. Notices to Mortgage Holders by City shall be given as provided above using the address provided by such Mortgage Holders. Notices to Assignees shall be given by City as required above only for those Assignees who have given City written notice of their addresses for the purpose of receiving such notices. Either Party may change its mailing address/email at any time by giving written notice of such change to the other Party in the manner provided herein at least ten (10) days prior to the date such change is effected.

12.11. No Financial Assistance; Prevailing Wage Matters. City is not providing any direct or indirect financial assistance to Developer that would make any part of the Project a “public work” “paid for in whole or in part out of public funds,” as described in California Labor Code Section 1720, such that it would cause Developer to be required to pay prevailing wages for any aspect of the Project.

12.12. Interpretation. This Development Agreement shall be construed and enforced in accordance with the laws of the State of California. The terms of this Development Agreement 276

27 shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Development Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Development Agreement. The provisions of this Development Agreement and the attached exhibits shall be construed as a whole according to their common meaning and not strictly for or against either Party, and in a manner that shall achieve the purposes of this Development Agreement.

12.13. Venue. Any action brought relating to this Development Agreement shall be held exclusively in a state court in the County of Tulare.

12.14. No Waiver. Waiver of a breach or Default under this Development Agreement shall not constitute a continuing waiver or waiver of a subsequent breach of the same or any other provision of this Agreement. All waivers of the provisions of this Development Agreement, unless specified otherwise herein, must be in writing and signed by the appropriate representatives of City or Developer, as applicable.

This Agreement has been reviewed and revised by legal counsel for both City and Developer and no presumption or rule that ambiguities shall be construed against the drafting Party shall apply to the interpretation or enforcement of this Agreement.

12.15. Entire Agreement; Conflicts. This Development Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and this Development Agreement supersedes all negotiations and previous agreements between the Parties with respect to all or any part of the subject matter hereof. In the event of a conflict between the terms and conditions of the Pre-Annexation Agreement and the terms and conditions of this Agreement, to the fullest extent legally possible, this Agreement shall prevail and control.

12.16. Counterparts. This Development Agreement and any and all amendments hereto may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. Delivery of the executed Development Agreement may be accomplished by transmittal of a PDF by electronic mail, and if so done, the electronically mailed copy shall be deemed an executed original counterpart of the Development Agreement for all purposes.

12.17. No Third Party Beneficiaries. This Development Agreement and all provisions hereof is made and entered into for the sole protection and benefit of City, Developer and their respective successors and Assigns. This Development Agreement is not intended to create, nor shall it be construed to create, any third party beneficiary rights in any person or entity that is not a Party to this Development Agreement.

12.18. Authority To Execute. The individuals executing this Development Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Development Agreement on behalf of the representative legal entities of Developer and City.

12.19. Listing And Incorporation Of Exhibits. The exhibits to this Development Agreement, each of which is hereby incorporated herein by reference, are as follows:

Exhibit 1-a: Map of Property
277

28 Exhibit 1-b: Legal Description of Property
Exhibit 2: Existing Impact Fees
Exhibit 3: Form of Assignment Agreement
[SIGNATURE PAGE FOLLOWS]

278

29 IN WITNESS WHEREOF, the Parties have entered into this Development Agreement as of the Effective Date.
“CITY”
CITY OF VISALIA, a municipal corporation
and charter city
By:________________________________

ATTEST:

LESLIE CAVIGLIA, CITY CLERK
By: __________________________

APPROVED AS TO FORM:
_____________________________
Kenneth J. Richardson
City Attorney

“DEVELOPER”
“SEEFRIED INDUSTRIAL PROPERTIES, INC.”
By: _____________________________

“LJR LP”
LARRY J. RITCHIE FAMILY LIMITED
PARTNERSHIP, a California limited partnership

By: _____________________________
Larry J. Ritchie, General Partner

“JBR LP”
JEFFREY B. RITCHIE FAMILY LIMITED
PARTNERSHIP, a California limited
partnership.

By: _____________________________
Jeffrey B. Ritchie, General Partner.
279

30 Exhibit 1-a

Map of Property

280

31 Exhibit 1-b

Legal Description of Property

281

32 Exhibit 2

Existing Impact Fees

282

33 Exhibit 3

Form of Assignment Agreement

[SEE NEXT PAGE]

283

34 ASSIGNMENT AND ASSUMPTION AGREEMENT
(Development Agreement)

This Partial Assignment and Assumption Agreement (Development Agreement) (this “Agreement”) is executed as of _________, 20__, by and between [_______________], a [_________________] (“Assignor”), and [_____________], a [___________] (“Assignee”), and made effective as of the Effective Date set forth below.

A. Assignor and the CITY OF VISALIA, a municipal corporation and charter city (the “City”), entered into that certain Development Agreement, dated as of [_________], 2026 and recorded as Document No. [________] on [______], 2026 (the “DA”), relating to certain real property located within the Sphere of Influence of the City (as more particularly described in the DA, the “Property”). All capitalized terms used herein shall have the definitions given to them in the DA, unless otherwise expressly stated herein.

B. The DA provides for development of the Project (as that term is defined therein) on the Property, as more particularly described in the DA.

C. Assignor is selling, assigning or transferring a portion of the Property to Assignee, substantially concurrently with the date of this Agreement. The portion of the Property being conveyed to Assignee is more particularly described on Exhibit A attached hereto (the “Assigned Property”). This Agreement shall become effective as of the date of recordation of a grant deed conveying the Assigned Property to Assignee (the “Effective Date”).

D. Assignor desires to assign to Assignee solely with respect to the Assigned Property those rights and obligations of Assignor under the DA specifically described in Section 3 of this Agreement (collectively, the “Assigned Interests”), and Assignee desires to assume from Assignor the Assigned Interests.

NOW, THEREFORE, in consideration of the promises and the mutual agreements and covenants
set forth herein and intending to be legally bound hereby, Assignor and Assignee do hereby agree as
follows:

1. Assignment. Assignor hereby assigns to Assignee all of Assignor’s right, title and interest in and to the Assigned Interests.

2. Assumption. Assignee hereby assumes from Assignor all of Assignor’s right, title and interest in and to the Assigned Interests relating to the period from and after the Effective Date of this Agreement, and agrees to perform all of Assignor’s obligations under the DA with respect to the Assigned Interests relating to the period from and after the Effective Date of this Agreement.

3. Assigned Interests and Obligations. As used in this Agreement, Assigned Interests and obligations means the following provisions of the DA:

[___________]

4. Assignor’s Retained Rights and Obligations. As between Assignor and Assignee, Assignor hereby retains all other rights and obligations under the DA that are not specifically 284

35 applicable to the development of the Assigned Property, including without limitation, all rights and obligations applicable to development of the remainder of the Property owned by Assignor.

5. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation shall not affect the validity or enforceability of the offending term or provision in any other situation.

6. Successors and Assigns. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their successors and assigns.

7. Recording. The Parties shall execute and, concurrently with the recording of the grant deed conveying the Assigned Property to Assignee, Assignor shall record with the Tulare County recorder a copy of this Agreement.

8. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, applicable to contracts executed in and to be performed entirely within that state, and without regard to the conflict of laws provisions thereof.

9. Counterparts. This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same agreement.

[SIGNATURES ON NEXT PAGE]

285

36 IN WITNESS WHEREOF, Assignor and Assignee have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

ASSIGNOR:

[________________________]
By:

Name:

Title:

ASSIGNEE:

[__________________________]
By:

Name:

Title:

286

37 EXHIBIT A

TO ASSIGNMENT AND ASSUMPTION AGREEMENT

[Insert legal description and map of portion of Property being transferred]

287
Exhibit 2 – Impact Fees

The following Impact Fees shall apply to the Project:

PUBLIC FACILITY IMPACT FEES1

Land Use /
Size
Demand Unit2 Civic
Center
Corporation
Yard
Library Total
Business Park Per 1,000 Sq Ft $584.00 $95.00 N/A $679.00 Mini-
Warehouse
Per 1,000 Sq Ft $7.42 $1.24 N/A $8.66
Warehousing Per 1,000 Sq Ft $235.00 $41.00 N/A $276.00
Manufacturing Per 1,000 Sq Ft $334.00 $54.00 N/A $388.00 Light
Industrial
Per 1,000 Sq Ft $425.00 $67.00 N/A $492.00

PUBLIC SAFETY IMPACT FEES3

Land Use
Designation
Zoning Fire Protection Facilities
(Per Gross Acre)
Police Facilities
(Per Gross Acre)

INDUSTRIAL
Light Industrial IL $2,437.00 $325.00
Heavy Industrial4 IH $2,437.00 $325.00

GROUNDWATER OVERDRAFT MITIGATION FEE5

Per Gross Acre $1,663.00

1 Per Chapter 16.50 of the Municipal Code as of the Effective Date of the Development Agreement . Fees are based on land use designations under City’s General Plan. 2 Demand Unit shall be based on the total gross square feet of the building, structure or improvement to be constructed pursuant to the relevant building permit.
3 Per Chapter 16.46 of the Municipal Code as of the Effective Date of the Development Agreement. Fees are based on land use designations under City’s General Plan. 4 For purposes of the Public Safety Impact Fee, the Heavy Industrial land use designation shall mean the Industrial land use designation and IH zoning shall mean I zoning. 5 Per Chapter 16.54 of the Municipal Code as of the Effective Date of the Development Agreement. 288
Exhibit 2 – Impact Fees

STORM DRAINAGE & WATERWAYS IMPACT FEES6

Land Use Percent
Impervious
Acquisition
Fee
(per parcel)
Develop-
ment Fee
(per
parcel)
Total Fee
(per parcel)
Waterway
acquisition
fee (per
gross acre)

INDUSTRIAL
Industrial
Park
N/A $1,758.00 $196.00 $1,954.00 $1,433.00

NOTE:

The Acquisition Fee shall be paid on each parcel of land within the 2020 Urban Development Boundary prior to the approval of the final subdivision or parcel map.

When no final subdivision or parcel map is submitted for approval prior to the commencement of the work of any development on each parcel of land, the Acquisition Fee shall be paid prior to the commencement of the work of any development thereon.

The Development Fee shall be paid on each parcel of land prior to the commencement of the work of any development thereon.

6 Per Chapter 16.40 of the Municipal Code as of the Effective Date of the Development Agreement. 289
Exhibit 2 – Impact Fees

TRANSPORTATION IMPACT FEES7

LAND USE CATEGORIES8 UNIT AMOUNT

COMMERCIAL
General Retail
Less than 125,000 sq ft 1,000 sq. ft. $18,735.00
More than 125,000 sq ft 1,000 sq. ft. $12,496.00
Gasoline Service Station9
1st to 4th Per position $34,081.00
5th to 8th Per position $25,560.00
9th to 12th Per position $19,172.00
13th to beyond Per position $14,377.00

INDUSTRIAL
Industrial / Service Commercial Per 1,000 sq. ft. $2,616.00 Warehouse / Distribution
(0-20 KSF) Per 1,000 sq. ft. $2,388.00
(20-100 KSF) Per 1,000 sq. ft. $1,771.00
(100+ KSF) Per 1,000 sq. ft. $1,155.00
Mini-Storage Per 1,000 sq. ft. $1,228.00

7 Per Chapter 16.44 of the Municipal Code as of the Effective Date of the Development Agreement. 8 As defined in 16.44.050 of the Municipal Code, “Land Use Categories” means the specific list of land uses shown in a fee schedule developed under the authority of this chapter that generate vehicle trips and were used to project future vehicle trips for the calculation of the transportation impact fee. 9 Fees for Gasoline Service Stations are cumulative
290

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Visalia
Attn: Visalia City Clerk
315 E. Acequia Avenue
Visalia, CA 93291

RECORDING FEE EXEMPT

PURSUANT TO GOVERNMENT CODE
§§ 6103 and 27383

291

DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF VISALIA, SEEFRIED INDUSTRIAL PROPERTIES, INC., LARRY J. RITCHIE FAMILY LIMITED PARTNERSHIP AND JEFFREY B. RITCHIE FAMILY LIMITED

PARTNERSHIP
(Shirk and Riggin Industrial Project)
292

TABLE OF CONTENTS
Page

i

SECTION 1. INCORPORATION OF PREAMBLE, RECITALS AND EXHIBITS. ....................... 4 SECTION 2. DEFINITION OF TERMS. ................................ ................................ .................... 4 SECTION 3. TERM OF THIS AGREEMENT. ................................ ................................ ........... 8

3.1. Effective Date. ................................ ................................ ................................ ..... 8

3.2. Term of Agreement. ................................ ................................ ............................. 8

3.3. Effect of Termination. ................................ ................................ ........................... 8 SECTION 4. STANDARDS, LAWS, AND PROCEDURES GOVERNING THE PROPOSED DEVELOPMENT ................................ ................................ ............. 8

4.1. Vested Right to Develop the Project................................. ................................ .... 8

4.2. Rules, Regulations and Policies Governing Development and Operation of the Project. ................................ ................................ ................................ .... 9

4.3. Developer’s Application for Non-City Permits, Entitlements and Approvals ........ 12

4.4. Processing Subsequent Approvals ................................ ................................ .... 12

4.5. Compliance with CEQA................................ ................................ ...................... 12

4.6. Life of Project Approvals ................................ ................................ .................... 12

4.7. Timing of Development ................................ ................................ ...................... 12

4.8. Potable Water and Wastewater Service ................................ ............................. 13 SECTION 5. DEVELOPER’S OBLIGATIONS RELATING TO PROJECT
DEVELOPMENT GENERALLY ................................ ................................ .......... 13

5.1. Phasing of Project Development ................................ ................................ ........ 13

5.2. Required Project Infrastructure Generally ................................ .......................... 13

5.3. General Construction and Security Obligations ................................ .................. 13

5.4. Inspection and Acceptance of Improvements ................................ ..................... 14 SECTION 6. FEES AND OTHER PAYMENT OBLIGATIONS................................. ................ 15

6.1. Regulatory Processing Fees ................................ ................................ .............. 15

6.2. Impact Fees ................................ ................................ ................................ ....... 15 SECTION 7. PERIODIC COMPLIANCE REVIEW; NOTICE OF COMPLIANCE. .................... 15

7.1. Periodic Compliance Review................................ ................................ .............. 15

7.2. Notice of Compliance ................................ ................................ ......................... 16 SECTION 8. DEFAULT, RIGHTS TO CURE AND WAIVERS; LEGAL ACTIONS; RIGHTS AND REMEDIES; EXCUSED DELAY; MORTGAGE HOLDER
RIGHTS. ................................ ................................ ................................ ............ 16

8.1. Default and Cure; Dispute Resolution ................................ ................................ 16

8.2. Legal Actions ................................ ................................ ................................ ..... 17

8.3. Rights and Remedies: Cumulative Nature ................................ ......................... 18 293

TABLE OF CONTENTS
(Continued)
Page

ii

8.4. Excused Delay: Extension of Times of Performance ................................ ......... 18

8.5. Rights of Mortgage Holders of Approved Security Interests in the Property ....... 19 SECTION 9. TERMINATION. ................................ ................................ ................................ . 21

9.1. Termination Upon Completion of Project or Expiration of Term .......................... 21

9.2. Termination Due to Default ................................ ................................ ................ 21

9.3. Termination by Mutual Consent ................................ ................................ ......... 21

9.4. Documentation of Termination ................................ ................................ ........... 21 SECTION 10. PARTICIPATION IN THIRD-PARTY LITIGATION; INDEMNITY. ....................... 21

10.1. In General ................................ ................................ ................................ .......... 21

10.2. Developer Indemnification in the Event of Third-Party Litigation ......................... 22

10.3. Cooperation in the Event of Third-Party Litigation ................................ .............. 22

10.4. Defense Election ................................ ................................ ................................ 22

10.5. Processing During Third Party Litigation ................................ ............................ 23 SECTION 11. ASSIGNMENT AND ASSUMPTION; RIGHTS AND DUTIES OF MORTGAGEES. ................................ ................................ ................................ 23

11.1. Assignment of Rights, Interests and Obligations ................................ ................ 23

11.2. Assumption of Rights, Interests and Obligations ................................ ................ 24 SECTION 12. GENERAL PROVISIONS. ................................ ................................ .................. 24

12.1. Independent Contractors ................................ ................................ .................... 24

12.2. Severability of Provisions ................................ ................................ ................... 24

12.3. Further Documents; Other Necessary Acts ................................ ........................ 24

12.4. Time of Essence ................................ ................................ ................................ 24

12.5. Amendments ................................ ................................ ................................ ...... 24

12.6. Project Is A Private Undertaking ................................ ................................ ........ 25

12.7. Covenants Running With The Land ................................ ................................ ... 25

12.8. Recordation Of Agreement ................................ ................................ ................ 25

12.9. Good Faith and Fair Dealing ................................ ................................ .............. 25

12.10. Notices, Demands and Communications Between the Parties ........................... 25

12.11. No Financial Assistance; Prevailing Wage Matters ................................ ............ 26

12.12. Interpretation ................................ ................................ ................................ ...... 26

12.13. Venue ................................ ................................ ................................ ............... 27

12.14. No Waiver ................................ ................................ ................................ .......... 27

12.15. Entire Agreement ................................ ................................ ............................... 27 294

TABLE OF CONTENTS
(Continued)
Page

iii

12.16. Counterparts ................................ ................................ ................................ ...... 27

12.17. No Third Party Beneficiaries ................................ ................................ .............. 27

12.18. Authority To Execute ................................ ................................ .......................... 27

12.19. Listing And Incorporation Of Exhibits ................................ ................................ . 27 295

1 DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF VISALIA AND SEEFRIED INDUSTRIAL PROPERTIES, INC. (SHIRK AND RIGGIN INDUSTRIAL PROJECT)
This DEVELOPMENT AGREEMENT (“Development Agreement” or “Agreement”) is made by and between the City of Visalia (“City”), a municipal corporation and charter city, and Seefried Industrial Properties, Inc., a Georgia corporation (“Seefried”), Larry J. Ritchie Family Limited Partnership (“LJR LP”) and Jeffrey B. Ritchie Family Limited Partnership (“JBR LP”), and their respective successors and assigns hereunder (together with Seefried, LJR LP and JBR LP, “Developer”), effective as of ________, 2025 (“Effective Date”). City and Developer may sometimes be referred to herein individually as a “Party” and collectively as the “Parties”.

RECITALS
A. The Legislature enacted Government Code Section 65864 et seq. (“Development Agreement Statute”) in response to the lack of certainty in the approval of development projects, which can result in a waste of resources, escalate the cost of development, and discourage investment in and commitment to planning that would maximize the efficient utilization of resources. The Development Agreement Statute is designed to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development. It authorizes a city to enter into a development agreement with any person having a legal or equitable interest in real property regarding the development of that property and establishing certain development rights therein.

The Development Agreement Statute also authorizes a city to enter into a development agreement even though the subject property is outside of the city’s municipal limits so long as it is within the city’s sphere of influence (“SOI”).

B. Pursuant to the Development Agreement Statute, City has adopted procedures and requirements for the consideration of development agreements, which are set forth in the Visalia Municipal Code (“Municipal Code”) Section 17.60 (“City Development Agreement Procedures”). This Development Agreement has been prepared, processed, considered and adopted in accordance with such procedures and the Development Agreement Statute.

C. Developer has a legal or equitable interest in a total of approximately two hundred eighty four (284) acres, located in unincorporated Tulare County and adjacent to City’s municipal boundaries, as more particularly described and depicted on attached Exhibit 1-a and 1-b (“Property”). The Property is generally bound by Riggin Avenue to the south, Shirk Street to the east, Kelsey Street to the west, and Modoc Ditch to the north. The Property is within City’s Planning Area, its Tier 1 Urban Development Boundary (“UDB”), and its SOI.

D. The Property is designated by the City’s General Plan (“General Plan”) as “Industrial,” “Light Industrial” and “Conservation.” Thus, the Property has long been planned for industrial and light industrial uses as part of City’s land use vision for the Property and vicinity.

E. Developer is seeking to develop a mixed-use industrial park, consisting of a total of eight (8) industrial buildings used for warehouse, distribution, and light manufacturing uses, six (6) flex industrial buildings, two (2) drive-through restaurants, a convenience store, a recreational vehicle (RV) and self-storage facility, a gas station, and a car wash, along with car/trailer parking areas and other related on- and off-site improvements, all as analyzed in the Proiect EIR and as documented in more detail in the Initial Approvals (collectively, “Project”). 296

2 F. The discretionary entitlement process for the Project is subject to compliance with CEQA. To satisfy requirements under CEQA, City, as the lead agency, has caused the preparation of an environmental impact report for the Project (SCN: 2022080658), which consists of the Draft Environmental Impact Report, the Final Environmental Impact Report, and all appendices attached thereto (collectively, the “Project EIR”).

G. On _________, 2025, following review and recommendation by the Planning Commission at a duly noticed public hearing (which took place on ____, 2025), the City Council held a duly noticed public hearing. After taking testimony and considering the matter, the City Council closed the public hearing, deliberated, and took the following actions, all of which are subject to LAFCO approval of the proposed annexation to effectuate same (collectively, the “Initial Approvals”):

1. By Resolution No. _____, approved an amendment to the General Plan, changing the land use designation for approximately twenty-one point twelve (21.12) acres of the Property from Light Industrial to Industrial (“General Plan Amendment”).

2. Confirmed that pursuant to Visalia Municipal Code section 17.06.050(A) the territory being annexed shall be classified to a zone that is consistent with the general plan as adopted and amended by the City of Visalia requirements. In addition, City and Developer have entered into a Pre- Annexation Agreement, dated [__], 2025 (the “Pre-Annexation Agreement”), that details the prezoning of the Property.

3. Conducted the first reading of Ordinance No._____, an ordinance approving this Development Agreement and directing its execution by City (“DA Ordinance”).

4. By Resolution No. _____, initiated annexation proceedings for the Property (“Resolution to Initiate LAFCO Proceedings”).

5. By Resolution No. _____, approved the Project’s site plan (No. ____) (“SPR Permit Approval”) and tentative parcel map (No. ____) (“TPM Approval”).

6. By Resolution No. _____, approved the Project’s Conditional Use Permit (No. ____) (“CUP Approval”).

In support of the foregoing actions, by Resolution No. _____, and pursuant to and in compliance with the applicable provisions of CEQA, the City Council certified the Project EIR, adopted written findings related thereto, and adopted a mitigation monitoring and reporting program (“MMRP”) as well as a Statement of Overriding Considerations.

H. On _____________, 2025, the City Council conducted the second reading of and adopted the DA Ordinance.

I. City has given the required notice of its intention to adopt this Development Agreement and has conducted public hearings thereon pursuant to Government Code Section 65867. As required by Government Code Section 65867.5, City has found that the 297

3 provisions of this Development Agreement and its purposes are consistent with the goals, policies, standards and land use designations specified in City’s General Plan.

J. For the reasons recited herein, City and Developer have determined that the Project is a development for which this Development Agreement is appropriate. This Development Agreement will eliminate or reduce uncertainty regarding Project Approvals (including the Subsequent Approvals), thereby encouraging planning for, investment in and commitment to the contemplated uses and development of the Property as envisioned by the Project. Continued use and development of the Property, as proposed, will provide employment opportunities as well as property and sales tax revenue and related benefits to the Visalia community, thereby achieving the goals and purposes for which the Development Agreement Statute was enacted.

K. City and Developer now desire to enter into this Development Agreement to provide, among other things, for Developer’s vested right to develop the Project on the Property, along with Developer’s development obligations related thereto, as more particularly set forth herein and in accordance with the Applicable City Law.

L. City finds that this Development Agreement:

1. Will ensure the productive use of the Property and foster orderly growth and quality development in the Visalia community;

2. Will result in City’s receipt of increased property tax and sales tax revenues;

3. Will provide City benefit in the form of increased employment opportunities;

4. Is consistent with the relevant objectives, policies, general land uses and programs specified in the General Plan and any applicable specific plan;

5. Is compatible with the uses authorized in, and the regulations prescribed for, the applicable Industrial, Light Industrial and Open Space zoning districts;

6. Is in conformity with public convenience, general welfare and good land use practice; and

7. Will not adversely affect the orderly development of property or the preservation of property values.

NOW, THEREFORE, based on the foregoing recitals, which are deemed true and correct and which are incorporated into and made a part of this Development Agreement, and in consideration of the mutual covenants and promises set forth herein and other consideration, the value and adequacy of which is hereby acknowledged, the Parties agree as follows. 298

4 AGREEMENT
SECTION 1. INCORPORATION OF PREAMBLE, RECITALS AND EXHIBITS.

The Preamble paragraph, Recitals and attached exhibits, and all defined terms contained therein, are hereby incorporated into this Agreement by this reference as if set forth in full.

SECTION 2. DEFINITION OF TERMS.

This Development Agreement uses certain terms with initial capital letters that are defined in this Section 2 or elsewhere in this Development Agreement. City and Developer intend to refer to those definitions when the capitalized terms are used in this Development Agreement.

2.1. “Applicable City Law” has the meaning set forth in Section 4.2(a) below.

2.2. “Assignee” has the meaning set forth in Section 11.1 below.

2.3. “Assignment” has the meaning set forth in Section 11.1 below.

2.4. “Assignment Agreement” has the meaning set forth in Section 11.2 below

2.5. “Building Permit” means the document issued by City’s Building Official authorizing the holder to construct a building or other structure, as provided for in the City of Visalia Municipal Code.

2.6. “CEQA” means, collectively, the California Environmental Quality Act set forth in Public Resources Code Section 21000 et seq. and the CEQA Guidelines (Tit. 14 CCR § 15000 et seq.).

2.7. “Certificate of Completion” means the document prepared, executed and recorded by the executive officer of LAFCO and recorded with the County Recorder that confirms the final successful completion of the annexation, pursuant to Government Code sections 56020.5, 57176, and 57200.

2.8. “Certificate of Occupancy” means a final certificate of occupancy issued by City’s Building Official or, if City’s Building Code does not provide for the issuance of a certificate of occupancy for a particular structure, the functional equivalent thereto, as provided for in the City of Visalia Municipal Code.

2.9. “City” means the City of Visalia, a California municipal corporation and charter city, as set forth in the Preamble.

2.10. “City Council” means the Visalia City Council.

2.11. “City Development Agreement Procedures” has the meaning set forth in Recital B.

2.12. “Planning and Community Preservation Department” means the City’s Planning and Community Preservation Department.
299

5 2.13. “Planning and Community Preservation Director” means the head of Visalia’s Planning and Community Preservation Department.

2.14. “County Recorder” means the Tulare County Recorder, which is responsible, in part, for recording legal documents that determine ownership of real property and other agreements related to real property.

2.15. “DA Ordinance” has the meaning set forth in Recital G(1).

2.16. “Days” means calendar days. If the last day to perform an act under this Development Agreement is a Saturday, Sunday or legal holiday in the State of California, said act may be performed on the next succeeding calendar day that is not a Saturday, Sunday or legal holiday in the State of California and in which City offices are open to the public for business.

2.17. “Developer” shall mean each of Seefried Industrial Properties, Inc., a Georgia corporation, Larry J. Ritchie Family Limited Partnership (“LJR LP”) and Jeffrey B. Ritchie Family Limited Partnership (“JBR LP”), and their respective owners, officers, principals, partners, directors, managers, members, employees, agents, representatives, successors, and Assignees.

2.18. “Development Agreement” has the meaning set forth in the Preamble.

2.19. “Development Agreement Statute” has the meaning set forth in Recital A.

2.20. “Development Standards” has the meaning set forth in Section 4.1 below.

2.21. “Effective Date” means the date that is thirty (30) days following the adoption of the DA Ordinance approving this Development Agreement. The Effective Date shall be inserted above, where indicated. Pursuant to Government Code Section 65865(b), this Agreement shall not become operative until annexation proceedings are completed pursuant to applicable laws and regulations no later than two (2) years from the Effective Date (“Annexation Timing”); provided, however, Developer shall have the right, in its sole discretion, to extend the Annexation Timing so long as the application to annex the Property (“Annexation Application”) has been submitted to the Local Agency Formation Commission (“LAFCO”) for processing and consideration, with the Annexation Timing being so extended until such time as LAFCO takes action on and approves the Annexation Application and the related Certificate of Completion is prepared, executed and recorded by LAFCO.

2.22. “ENR” means the Engineering News Record (“ENR”) Construction Cost index (overall-California).

2.23. “Exaction(s)” means any exaction(s) that may be imposed by City or other governmental agency as a condition of developing the Project, including, without limitation, requirements for acquisition, dedication or reservation of land; and obligations to construct on- site or off-site public and private infrastructure such as roadways, utilities or other improvements; this is the case whether such exaction(s) constitute subdivision improvements, mitigation measures in connection with environmental review of the Project, or obligations otherwise imposed under applicable laws and regulations. Provided, however, any condition imposed on the Project that meets the definition of an Exaction, but also meets the definition of an “Impact Fee” (as defined in Section 2.25 below) shall be considered an Impact Fee. 300

6 2.24. “Excused Delay” has the meaning set forth in Section 8.4 below.

2.25. “Impact Fee(s)” means any monetary amount(s) charged by City or other governmental or quasi-governmental authority in connection with a Project Approval in order to lessen, offset, mitigate or compensate for the impacts of development of the Project on the environment; facilities, services, improvements and/or infrastructure; or other public interests, including, without limitation, any “fee” defined by Government Code Section 66000(b) as well as any fee imposed “in lieu of” an Exaction. Any such monetary amount imposed on the Project that meets the definition of an Impact Fee as well as the definition of an Exaction shall be considered an Impact Fee. The Parties acknowledge and agree that the City Impact Fees in effect on the Effective Date are identified in attached Exhibit 2.

2.26. “Initial Approvals” has the meaning set forth in Recital G.

2.27. “Later Enactment(s)” has the meaning set forth in Section 4.2(c) below.

2.28. “Major Amendment” has the meaning set forth in Section 12.5(b) below.

2.29. “Master Plan Infrastructure” means, collectively, those on-site (i.e., within the Property) and off-site (i.e., not within the Property) improvements that are necessary or desirable to develop the Project, as described more fully in (a) the Project Approvals and (b) the applicable, adopted Citywide infrastructure master plans, and (c) which are not considered Non- Program Improvements for purposes of this Development Agreement. This may include public improvements that under Applicable City Law may be eligible for reimbursement from City. If eligible for reimbursement, Developer and City will enter into a separate “Reimbursement Agreement” to detail the public improvements eligible for reimbursement under Applicable City Law and terms of reimbursement by City to Developer to occur in accordance with Applicable City Law.

2.30. “Minor Amendment” has the meaning set forth in Section 12.5(b) below.

2.31. “Mortgage” means any mortgage, deed of trust, security agreement, sale and lease-back financing, or other like security instrument encumbering all or any portion(s) of the Property and/or any of Developer’s rights under this Development Agreement.

2.32. “Mortgage Holder” means the holder of any Mortgage, and any Assignee of any such Mortgage Holder.

2.33. “MMRP” has the meaning set forth in Recital G.

2.34. “Non-Program Improvements” means, collectively, all improvements and infrastructure necessary or desirable to serve the Project as set forth in the Project Approvals and that do not constitute Master Plan Infrastructure. This may include public improvements that under Applicable City Law are required to be installed by Developer pursuant to the Project Approvals with no reimbursement from City.

2.35. “Notice of Compliance” has the meaning set forth in Section 7.2 below.

2.36. “Notice of Default” has the meaning set forth in Section 8.1 below.

2.37. “Notice of Intent to Terminate” has the meaning set forth in Section 9.2 below. 301

7 2.38. “Party” or “Parties” has the meaning set forth in the Preamble.

2.39. “Periodic Review” has the meaning set forth in Section 7.1 below.

2.40. “Planning Commission” means the Visalia Planning Commission.

2.41. “Project” has the meaning set forth in Recital E.

2.42. “Project Approvals” means, collectively, the Initial Approvals and Subsequent Approvals.

2.43. “Project Infrastructure” means, collectively, the Master Plan Infrastructure and Non-Program Improvements.

2.44. “Property” has the meaning set forth in Recital C.

2.45. “Regulatory Processing Fees” means any and all fees, costs and charges adopted or otherwise imposed by City for the purpose of defraying City’s actual costs incurred or to be incurred in the processing and administration of any form of permit, approval, license, entitlement, or formation of a financing district or mechanism, or any and all costs adopted or otherwise imposed by City for the purpose of defraying City’s actual costs of periodically updating its plans, policies, and procedures, including, without limitation, the fees and charges referred to in Government Code Section 66014.

2.46. “Reimbursement Agreement” means an agreement between City and Developer to detail the terms of any reimbursement from City that Developer may be eligible for under Applicable City Law.

2.47. “Subsequent Approval(s)” means any and all land use, environmental, building, construction and development approvals, entitlements and/or permits that are necessary or desirable to develop and operate the Project on the Property subsequent to the Effective Date, including, without limitation, amendments or other modifications to any Initial Approvals; vacation or abandonment of public right(s) of ways; tentative and/or final subdivision maps, tentative parcel maps, parcel maps, lot line adjustments, and lot mergers; annexation; demolition permits; improvement agreements; infrastructure agreements; sewer and water connection permits; site plan review; conditional use permits; development/design review; Building Permits; demolition permits; grading permits; encroachment permits; Certificates of Occupancy; formation of (or annexation to) financing districts or other financing mechanisms; General Construction Permit coverage; and any amendments thereto (administrative or otherwise).

2.48. “Term” has the meaning set forth in Section 3.2 below.

2.49. “Third-Party Litigation” means the filing of litigation by a third party challenging this Development Agreement and/or other Initial Approval(s) or Subsequent Approval(s) on CEQA or any other grounds.

2.50. “Urban Water Management Plan” means the California Water Service, Visalia District, 2020 Urban Water Management Plan adopted by the Cal Water in June 2021. It is noted that under state law California Water Service is required to periodically update the Urban Water Management Plan.
302

8 SECTION 3. TERM OF THIS AGREEMENT.

3.1. Effective Date. The rights, duties, and obligations hereunder shall be effective and the Term shall commence on the “Effective Date”, which shall be the effective date of the DA Ordinance.

3.2. Term of Agreement. Subject to Section 2.21 above, this Development Agreement shall commence on the Effective Date and shall continue in full force and effect thereafter for a period of ten (10) years (“Initial Term”) unless extended pursuant to this Section 3.2 or earlier terminated as provided herein (the term of this Agreement, including the Initial Term and as it may be so extended or terminated, is herein referred to collectively as the “Term”). Within thirty (30) days of Developer’s request, the Term shall be extended once for a period of two (2) years so long as Developer is in compliance in all material respects with its obligations hereunder (“Mandatory Extension”). The City Manager shall have the authority to grant the Mandatory Extension administratively, and no public notice or public hearing shall be required. In addition to the Mandatory Extension, upon Developer’s request, the City Council may agree, in its sole discretion, to further extend the Term for a total of up to three (3) additional years (each, “Discretionary Extension”) so long as consideration of this request takes place at a duly noticed public hearing. In addition to the foregoing, the Term may be further extended at any time before termination by the Parties’ mutual agreement in writing and in accordance with the Development Agreement Statute and City’s Development Agreement Procedures.

3.3. Effect of Termination.
(a) Expiration of Term. Following expiration of the Term (which shall include the Mandatory Extension and any mutually agreed upon Discretionary Extension(s)), this Development Agreement shall be deemed terminated and of no further force and effect except for any and all obligations expressly provided for herein that shall survive termination. (b) Survival of Obligations. Upon the expiration or termination of this Development Agreement as provided herein, neither Party shall have any further right or obligation with respect to the Property and the Project under this Development Agreement except for any and all obligations expressly provided for herein that shall survive the expiration or termination of this Agreement.

SECTION 4. STANDARDS, LAWS, AND PROCEDURES GOVERNING THE PROPOSED

DEVELOPMENT

4.1. Vested Right to Develop the Project. As of the Effective Date, Developer shall have the vested right to develop and operate the Project on all or portion(s) of the Property in accordance with the Applicable City Law. The overall design, development, construction, and uses of the Project and all Project Infrastructure in connection therewith, including, without limitation, the permitted uses of the Property; the density and intensity of such uses; the maximum height, bulk and size of proposed buildings; the provisions for the reservation or dedication of land for public purposes and the location of public improvements; the general location of public utilities; the construction, installation and extension of public improvements; and other terms and conditions of development applicable to the Project shall be as set forth in the Applicable City Law (collectively, “Development Standards”). In the event of any inconsistency between this Development Agreement and any Subsequent Approval(s), to the 303

9 fullest extent legally possible, the provisions of this Development Agreement shall prevail and control.

4.2. Rules, Regulations and Policies Governing Development and Operation of the Project .
(a) Applicable City Law. “Applicable City Law” shall consist of, collectively, the rules, regulations and official policies governing the Development Standards applicable to the Project on the Property existing as of the Effective Date, as supplemented and modified by the Initial Approvals, the Subsequent Approvals as and when they are issued, granted or approved, and Later Enactments, all except as otherwise provided in this Development Agreement.
(b) Processing Subsequent Approvals with City Generally. The Parties acknowledge that in order to develop the Project, Developer will need to obtain City approval of various Subsequent Approvals. For each such Subsequent Approval, Developer shall file an application with City for the Subsequent Approval at issue in accordance with the Applicable City Law, and shall pay the applicable Regulatory Processing Fees in connection therewith. City shall diligently and expeditiously process each such application in accordance with the Applicable City Law, and shall exercise any discretion City has related thereto in accordance with the terms and conditions of this Development Agreement. Except as expressly provided herein, this Development Agreement does not restrict City’s exercise of its police powers, and City reserves those powers to itself. By approving the Initial Approvals, City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Accordingly, City shall not use its authority in considering any application for a discretionary Subsequent Approval for the Project to change the policy decisions reflected by the Initial Approvals or otherwise to prevent or delay development of the Project as set forth in the Initial Approvals and herein. Instead, the Subsequent Approvals shall be deemed to be tools to implement those final policy decisions.
(c) No Conflict with Vested Rights. City, or its electorate through adoption of initiative(s), may adopt new or modified rules, regulations and policies after the Effective Date (each, a “Later Enactment” and, collectively Later Enactments”); provided, however, any such Later Enactment(s) shall be applicable to the Project on the Property if and only to the extent that application of any Later Enactment does not modify the Project; does not prevent or impede development of the Project; and does not conflict with this Development Agreement. Any Later

Enactment shall be deemed to conflict with this Development Agreement and Developer’s vested rights hereunder if said Later Enactment seeks to accomplish any one or more of the following results, either with specific reference to the Project or the development of the Property, or as part of a general enactment that would otherwise apply to the Project on the Property:
(i) Limit or reduce the density or intensity of the Project, or otherwise require a reduction in the total: number of proposed buildings, square footage, floor area ratio, number of floors, parking and/or loading spaces, and/or height of any proposed buildings or Project Infrastructure related thereto from that permitted under this Development Agreement and the Applicable City Law;
(ii) Alter or change any land use, including, without limitation, any permitted or conditionally permitted use(s) of the Project or require a change in the amount of any particular land use to be developed 304

10 on the Property from that permitted under this Development Agreement and the Applicable City Law;
(iii) Require, for any work necessary to develop the Project on the Property, the issuance of permits, approvals, or entitlements by City other than those required as of the Effective Date; (iv) Limit or control the location of buildings, structures, grading, or Project Infrastructure, or limit the hours of operation or uses on the Property, in a manner that is inconsistent with the Initial Approvals;
(v) In any manner control, delay, or limit the timing, phasing, rate or sequencing of the development of the Project (including, without limitation, the timing of approval and issuance of the approval, development or construction of all or portion(s) of the Project), or materially limit the processing of, the procuring of applications for, or approval of the Subsequent Approval(s);
(vi) Increase any Impact Fees and/or impose new Impact Fee(s), except as permitted by Section 6.2 below;
(vii) Materially increase the obligations of Developer under this Development Agreement;
(viii) Limit or restrict the availability of public utilities, services, infrastructure or facilities (for example, without limitation, water rights, water connection or sewage capacity rights, sewer connections, etc.) to the Project and/or increase the Project’s obligations with respect to the Project Infrastructure (in size, cost and/or scope) necessary to serve the Project; or
(ix) Establish, enact, increase, or impose against the Project or Property any fees, assessments, or other monetary obligations other than those specifically permitted by this Development Agreement; provided, however, that the foregoing shall not prevent or limit the imposition or collection of any generally applicable real or personal property taxes with respect to the Property or any generally applicable sales, use, excise taxes or business license fees with respect to any commercial uses within the Project.
(d) Applicable Later Enactments. To the extent that Later Enactments conflict with the vested rights hereunder, they shall not apply to the Project and/or the Property, except as provided in subsections (d)(i)-(iv) below, inclusive. Notwithstanding the foregoing, City shall not be precluded from applying a Later Enactment to the Project under the following limited circumstances:
(i) It is specifically mandated by changes in state or federal laws or regulations adopted after the Effective Date as provided in Government Code Section 65869.5;
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11 (ii) It is specifically mandated by a court of competent jurisdiction; (iii) It is specifically mandated as a result of changes to the Uniform Building Code or similar uniform construction code(s) (such as the California Fire Code) so long as such code (as modified to include the foregoing changes) has been adopted by City and is in effect on a Citywide basis; or
(iv) It is (A) required as a result of a specific and identifiable issue in each case that is presently unknown or unforeseeable that would otherwise have an immediate and substantially adverse risk on the physical health and safety of the public, and (B) based on written findings by the City Council, and transmitted to Developer, specifically identifying, based on objective and quantifiable evidence in the official record, the precise nature and extent of the dangerous or hazardous circumstance(s) requiring such condition or denial or change in Applicable City Law, why there are no feasible mitigation or alternatives to the imposition of such condition or denial or changes in the law, and how such condition or denial or new law would alleviate the dangerous or hazardous circumstance (“Public Health and Safety Exception”).

Notwithstanding anything to the contrary in the foregoing, before taking any action based on a Public Health and Safety Exception, City shall first provide Developer with written notice of the public health circumstance upon which such Public Health and Safety Exception is based, and if Developer responds in writing within fifteen (15) days confirming that Developer will correct such public health circumstance and which describes the means of such correction, and thereafter Developer diligently pursues such correction to completion, such Public Health and Safety Exception shall no longer be applicable and City shall take no further action based thereon. Developer retains the right to dispute any City reliance on the Public Health and Safety Exception.

If City imposes a Later Enactment on the Project as a result of the occurrence of one of the circumstances set forth in subsections (d)(i)-(iv) above, then the Parties shall work diligently and in good faith to amend this Development Agreement in a manner to reasonably reflect the required Later Enactment while still achieving the underlying purposes of this Development Agreement. If state and/or federal law(s) and/or regulation(s) enacted after the Effective Date prevent or preclude compliance with one or more provisions of this Development Agreement as set forth in subsection (d)(i) above, and further if Developer does not consent to a reasonable amendment that is required to make this Development Agreement consistent therewith in accordance with Government Code Section 65869.5, City shall provide Developer written notice of the immediate suspension of this Development Agreement, and it shall remain suspended until the date the Development Agreement is so amended. (e) Enforcement. Pursuant to Section 65865.4 of the Development Agreement Statute, unless this Agreement is terminated by mutual agreement of the Parties as provided for under Section 9.3 below, or terminated due to Default pursuant to Section 9.2 below, either Party may enforce this Development Agreement notwithstanding any Later

Enactment(s).
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12 4.3. Developer’s Application for Non-City Permits, Entitlements and Approvals. City and Developer acknowledge and agree that other governmental agencies not within City’s control may possess jurisdiction to regulate aspect(s) of development of the Project on the Property with respect to certain Subsequent Approvals and that this Development Agreement does not limit the jurisdiction of such other authorities. City shall reasonably cooperate and diligently work with Developer in Developer’s effort to process and obtain approval of its applications for such Subsequent Approvals as may be necessary or desirable to develop and operate the Project; provided, however, City shall have no obligation to incur any material costs, without compensation or reimbursement, or to amend any City policy, regulation or ordinance in connection therewith.

4.4. Processing Subsequent Approvals. In accordance with Section 4.2(b) above, the Subsequent Approvals shall be deemed mechanisms to implement those final policy decisions reflected by the Initial Approvals and other provisions of Applicable City Law. City shall cooperate and diligently and expeditiously work with Developer to promptly process and consider all applications for Subsequent Approvals (provided such application(s) are in a proper form and include all reasonably required information and payment of any and all applicable Regulatory Processing Fees), in accordance with Developer’s vested rights granted hereunder, and taking into consideration such factors, among others, as cost efficiencies, economies of scale, and appropriate engineering practices. In the event that Developer determines that it would be necessary to retain additional personnel or outside consultant(s) to assist City to expeditiously process any Subsequent Approval(s), Developer may request, and City may consider, retaining such additional personnel or consultant(s), and City shall direct any such additional personnel or consultant(s) to work cooperatively and in a cost-efficient and timely manner with Developer to accomplish the objectives under this Section 4.4; provided, however, that Developer shall pay all actual costs associated therewith, although said personnel or consultant(s) shall be under City’s direction and City has sole authority over whether to hire or retain any additional personnel or select any consultants. Subject to Section 4.2(b) above and other terms of this Development Agreement and Developer’s rights hereunder, City shall retain its discretionary authority in its consideration of any and all Subsequent Approvals that involve discretionary decisions.

4.5. Compliance with CEQA. The Project EIR, which has been certified by City as being in compliance with CEQA, addresses the potential environmental impacts of the Project as it is described in the Initial Approvals. To the extent that the Project will require the issuance of Subsequent Approvals that are discretionary in nature, City shall rely on the Project EIR to satisfy the requirements of CEQA to the fullest extent permissible by CEQA and City shall not require a new initial study, negative declaration or mitigated negative declaration, or subsequent or supplemental EIR unless specifically required by CEQA and shall not impose on the Project any additional mitigation measures other than that which is specifically required by CEQA.

4.6. Life of Project Approvals. The life of all Initial Approvals and any and all Subsequent Approvals as and when granted, approved or issued, including, without limitation, tentative subdivision maps or parcel maps (pursuant to Government Code Section 66452.6(a)), conditional use permit(s) and development and/or site plan review, shall be deemed extended for the longer of the Term of this Development Agreement or the term otherwise applicable to such Initial Approval or Subsequent Approval. Any tentative map prepared for the Project shall comply with Government Code Section 66473.7.

4.7. Timing of Development. The Parties acknowledge and agree that: (a) Developer cannot at this time predict if or when, or the rate at which, the Project may be constructed; 307

13 (b) there is no requirement that Developer commence or complete construction of the Project at all or within any particular period of time during the Term; and (c) except if and to the extent expressly required by the terms of this Development Agreement, City shall not impose any such timing requirement on any Subsequent Approval(s). Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465 that failure of the parties therein to provide for the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over the parties’ agreement, it is the Parties’ intent to cure that deficiency by acknowledging and providing that Developer shall have the right to construct the Project (or any portion(s) thereof) in such order, at such rate, and at such time(s) as Developer deems appropriate within the exercise of its sole business judgment, subject only to City Applicable Law and the provisions of this Development Agreement.

4.8. Wastewater Service.
(a) Wastewater Service to Project. City shall reserve and allocate sufficient wastewater treatment and conveyance capacity to serve the Project consistent with the Project EIR and the City Wastewater Master Plan, and shall serve the Project upon application by Developer pursuant to the Project Approvals and payment of applicable connection fees. This reservation and allocation by the City shall be based on the Project as it is described in the Initial Approvals.
(b) Reserved.

SECTION 5. DEVELOPER’S OBLIGATIONS RELATING TO PROJECT DEVELOPMENT

GENERALLY

5.1. Phasing of Project Development. Development of the Project is intended to be phased, as generally described and depicted in the Initial Approvals. Notwithstanding the foregoing and further subject to Section 4.7 above, Developer shall have the right, in its discretion, to commence and complete any Project phase(s) of construction sequentially or concurrently pursuant to the terms and conditions of this Development Agreement and the Project Approvals, subject to City’s reasonable review to confirm the proposed phasing is consistent with the Initial Approvals.

5.2. Required Project Infrastructure Generally. City’s determination regarding which improvements are necessary for Developer to develop the Project shall be consistent with Developer’s vested rights hereunder, and shall be governed by the Applicable City Law. The Parties further agree that no additional requirements on Developer with respect to the Project Infrastructure may be imposed on the Project beyond those necessary to serve the proposed uses and to provide for the intended function of the improvements at issue. Upon Developer’s request, and at Developer’s sole cost, City shall cooperate with Developer (a) to locate any new City easements required for the Project so as to minimize interference with development of the Project, and (b) in Developer’s efforts to relocate or remove easements to facilitate development of the Project, subject to Developer funding all costs related thereto.

5.3. General Construction and Security Obligations. In constructing any Project Infrastructure, Developer shall (a) provide adequate security in accordance with the requirements of the Subdivision Map Act and City’s Subdivision Ordinance; and (b) promptly and diligently oversee and coordinate the construction of said infrastructure in a good and workmanlike manner and free from all defects, and in accordance with the applicable Citywide infrastructure master plans, the Project Approvals, and any other applicable City standards 308

14 pursuant to the Applicable City Law. City shall use diligent and good faith efforts to timely prepare, process and consider any Subdivision Improvement Agreements (or similar improvement agreements) that are required to implement the Project upon Developer’s request, which shall be in substantially the same form as is typically used by City in accordance with the Subdivision Map Act and City’s Subdivision Ordinance and which shall be consistent with this Development Agreement and reasonably acceptable to Developer.

5.4. Inspection and Acceptance of Improvements. Any Project Infrastructure constructed by Developer pursuant to this Development Agreement shall be subject to all required inspections, including the final inspection, and reasonable approval by the City Engineer in accordance with City’s Subdivision Ordinance and the Subdivision Map Act. Upon inspection, the following shall govern:
(a) Meet and Confer Process. If the City Engineer reasonably determines, consistent with Developer’s vested rights hereunder, that the improvement at issue does not meet the applicable requirements and standards, City shall reasonably document this determination and promptly provide this information to Developer. Developer and City then shall, within seven (7) days of the City Engineer’s determination or at such other mutually acceptable time, meet and confer regarding any modifications to said improvement necessary to achieve conformity with the applicable requirements and standards. (b) Remedy of Any Improvement Deficiencies. Following any meet and conferral process pursuant to Section 5.4(a) above, if the Parties have not reached a mutually acceptable approach to addressing any necessary modifications identified by City, and/or Developer has not corrected, or agreed to correct by a date certain reasonably acceptable to City, the identified deficiencies in the improvement at issue, then City shall have the right, at Developer’s sole cost and expense, to remedy such deficiencies and complete the construction of said improvement in accordance with the applicable requirements and standards pursuant to the terms and conditions of the applicable Subdivision Improvement Agreement. (c) Roadway Construction. For all Project roadways constructed by Developer, Developer shall do so pursuant to the Project Approvals, including installing identified driveways, curb, gutter and streetlights and as well as all required service facilities (i.e., potable water, wastewater, storm lines, recycled water) concurrently with the installation of said roadways. Developer shall be permitted to complete any required widening or improvements within any existing City roadways or rights-of-way if Developer elects to perform this work in accordance with applicable laws and regulations. Provided, however, no roadway frontage improvements in back of curb shall be required to be constructed until such time as the lot fronting such street is developed.
(d) For Master Plan Infrastructure that Developer installs, including, for example and without limitation, planned roadway improvements on Shirk Street that consist of all pavement and other improvements outside of eight (8) feet from face of curb, Developer shall obtain fee credit and/or reimbursement pursuant to the City Applicable Law, including but not limited to the City Transportation Impact Fee Program.
(e) City intends to substantially complete construction of the planned Riggin Avenue roadway improvements pursuant to the City’s approved Capital Improvement Program by September 30, 2025 (as such date may be extended in the event of any Excused Delay). 309

15 (f) To the extent Developer is required to install Master Plan Infrastructure (e.g., intersection improvements) that benefit other third-party property owner(s), then City shall facilitate reimbursement of Developer’s costs and enter into a Reimbursement Agreement with the Developer. Notwithstanding anything to the contrary in the foregoing, City shall have no obligation to directly reimburse Developer under this subsection (f).

SECTION 6. FEES AND OTHER PAYMENT OBLIGATIONS.

6.1. Regulatory Processing Fees. Developer shall pay all Regulatory Processing Fees required by City under then-current regulations for processing applications for Subsequent Approvals. Without limiting the foregoing, Developer shall reimburse City or pay directly all reasonable and actual costs relating to the hiring of consultants and the performing of studies as may be necessary to review or process any applications for Subsequent Approvals or perform any related environmental review. Prior to engaging the services of any such consultant or authorizing the expenditure of any funds for such consultant, City shall consult with Developer in an effort to mutually agree upon terms regarding (a) the scope of work to be performed, (b) the projected costs associated with the work, and (c) the particular consultant that would be engaged to perform the work.

6.2. Impact Fees. Developer shall be required to pay all City Impact Fees that are not Regulatory Processing Fees that are in effect as of the Effective Date for a period of five (5) years from the Effective Date (“Fee Vesting Period”); thereafter, Developer shall be required to pay all City Impact Fees that are then in effect. The Impact Fees set forth in attached Exhibit 2 constitute all Impact Fees (both in type and amount) that are in effect on the Effective Date, and City shall not seek to impose any new Impact Fees (either in amount or type) on the Project during the Fee Vesting Period.

SECTION 7. PERIODIC COMPLIANCE REVIEW; NOTICE OF COMPLIANCE.

7.1. Periodic Compliance Review. No later than ten (10) months after the Effective Date, and no later than every twelve (12) months thereafter, Developer and City shall conduct the periodic review pursuant to City’s Development Agreement Procedures and the Development Agreement Statute (“Periodic Review”). In conducting this Periodic Review, City acknowledges and agrees that any finding of non-compliance on Developer’s part shall be limited in effect to Developer’s interest in the Property. Furthermore, City acknowledges and agrees that in the event and to the extent Developer has assigned all or a portion of its rights and obligations to other Assignee(s) pursuant to Section 11.1 below, then any such Assignee(s) shall be responsible for conducting the Periodic Review as it relates to their respective rights and obligations hereunder, although Developer shall cooperate with respect to reasonable information requests from any Assignee(s) in order to facilitate the Periodic Review process. If, as a result of City’s Periodic Review, City determines, on the basis of substantial evidence, that Developer has not complied in good faith with the terms of this Development Agreement, City may terminate this Development Agreement in accordance with the Development Agreement Statute and City’s Development Agreement Procedures. Provided, however, Developer reserves any and all rights it may have to challenge in court City’s termination of this Development Agreement under this Section 7.1 and the basis therefor. If more than one Developer has obtained rights and assumed obligations hereunder as a result of an Assignment pursuant to Section 11.1 below, then termination of this Development Agreement as a result of a Developer Default shall extend only to those rights and obligations of the applicable Developer, and shall not terminate as to those rights and obligations of Developer(s) that are not in Default. Notwithstanding anything to the contrary in the foregoing, the Parties’ collective 310

16 failure to complete the Periodic Review during a particular year shall not constitute a Default hereunder.

7.2. Notice of Compliance. At Developer’s request, City shall, from time to time, promptly execute and deliver to Developer a written “Notice of Compliance” in recordable form, duly executed and acknowledged by City, which certifies the following:
(a) This Development Agreement is in full force and effect; (b) This Development Agreement has not been amended or, or if so amended, identifying the amendment(s);
(c) Developer is not in Default of the performance of its obligations, or if in Default, to describe therein the nature and extent of any such Default(s); (d) City is not in Default of the performance of its obligations, or if in Default, to describe therein the nature and extent of any such Default(s); and (e) Any other information reasonably requested by Developer.

The Planning and Community Preservation Director shall execute and return such Notice of Compliance within fifteen (15) days following a request therefor. Developer shall have the right, at its sole discretion, to record the Notice of Compliance. Developer and City acknowledge that a Notice of Compliance hereunder may be relied upon by any existing or potential Mortgage Holders, tenant(s), and/or other Assignee(s). If City fails to deliver a Notice of Compliance within the aforementioned fifteen (15) day period, then Developer shall have the right to deliver a second request clearly indicating thereon that failure of City to respond within five (5) days of its receipt of such second notice shall be deemed City’s approval of all of the terms and conditions set forth in the Notice of Compliance.

SECTION 8. DEFAULT, RIGHTS TO CURE AND WAIVERS; LEGAL ACTIONS; RIGHTS AND REMEDIES; EXCUSED DELAY; MORTGAGE HOLDER RIGHTS.

8.1. Default and Cure; Dispute Resolution. Subject to any Excused Delay, failure or delay by either Party to timely perform any material term or condition of this Development Agreement constitutes a Default hereunder, but only if the Party who so fails or delays does not commence to cure, correct or remedy such failure or delay within sixty (60) days after receipt of a written notice (“Notice of Default”) from the non-Defaulting Party specifying such failure or delay, and does not thereafter prosecute such cure, correction or remedy with diligence to completion (in such case, a “Default”). City shall continue to process in good faith development applications for any and all Subsequent Approval(s) during any cure period, but may delay taking formal action on any such application if it relates to a proposal for the Property with respect to which there is an alleged Developer Default whose interest is the subject of said proposal until such time as the subject Developer Default is resolved pursuant to this Section 8.

Upon occurrence of a Default and without any right to further notice or additional cure period, the non-Defaulting Party shall have all remedies available to it under this Development Agreement as set forth in Section 8.3 below; provided, however, neither Party shall have the right to recover any punitive, consequential, or special damages. Failure or delay in giving any Notice of Default shall not constitute a waiver of any Default and any waiver of a Default shall be in writing and be signed by the non-defaulting Party. For purposes of instituting a legal action 311

17 under this Development Agreement, any City Council determination as it relates to an alleged Default hereunder shall be deemed a final agency action. Except as otherwise provided in this Development Agreement, waiver by either Party of the performance of any term or condition herein shall not invalidate this Development Agreement, nor shall it be considered a waiver of any other term or condition. Waiver by either Party of the time for performing any act shall not constitute a waiver of time for performing any other act or an identical act required to be performed at a later time. The delay or forbearance by either Party in exercising any remedy or right as to any Default shall not operate as a waiver of any Default or of any rights or remedies or to deprive such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. Nothing in this Development Agreement shall relieve a non-Defaulting Party from satisfying any and all applicable requirements of the California Government Claims Act.

The non-Defaulting Party shall provide the Defaulting Party written notice (“Dispute Notice”) that specifies, in reasonable detail, the reasons that a Default and dispute exists, and what, if any, reasonable actions may be taken to cure the Default and resolve the dispute.

Within thirty (30) days after the Dispute Notice is given, the Parties shall meet in person and confer in good faith in an attempt to resolve the dispute. In addition to any other rights or remedies, if, following the meet and confer process, the non-Defaulting Party determines that the dispute cannot be resolved informally, the non-Defaulting Party may institute legal action to cure, correct, or remedy the Default, enforce any covenant or agreement herein, enforce by specific performance the obligations and rights of the Parties hereto, or obtain any other remedy consistent with this Development Agreement, subject to cure rights provided for by this Section 8.1. Notwithstanding anything to the contrary in the foregoing, if more than one Developer has obtained rights and assumed obligations hereunder as a result of an Assignment pursuant to Section 11.1 below, then provisions under this Section 8 shall apply only to the extent those rights and obligations so assumed by a Developer are implicated with respect to a Default hereunder. The inability of the Parties to timely meet and confer or to resolve any matter pursuant to this Section 8.1 shall not be deemed a Default hereunder.

8.2. Legal Actions.
(a) Institution of Legal Actions. Upon occurrence of a Default (but subject to cure rights set forth in Section 8.1 above) and further subject to the Parties’ good faith participation in the meet and confer process described in Section 8.1 above, the non-Defaulting Party shall have all rights and remedies available to it under this Development Agreement and other applicable laws and regulations, including, without limitation, the right to institute a legal action or proceeding to cure, correct or remedy such Default. Legal actions must be instituted and maintained in the Superior Court of the County of Tulare, State of California, or in any other appropriate court in that county.
(b) Applicable Law and Forum. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement without regard to conflict of law principles.
(c) Acceptance of Service of Process. If any legal action is commenced by Developer against City, service of process on City shall be made by personal service upon the City Clerk, or in such other manner as may be provided by law. If any legal action is commenced by City against Developer, service of process on Developer shall be made by personal service upon Developer at the address indicated in Section 12.10 below, or in such other manner as may be provided by law.
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18 (d) Attorney’s Fees. In the event of any litigation by either Party pertaining to this Development Agreement, the prevailing Party in such litigation, in addition to any other relief which may be granted, shall be entitled to its reasonable litigation costs and expenses, including, without limitation, reasonable attorneys’ fees.

8.3. Rights and Remedies: Cumulative Nature. Except as otherwise expressly stated in this Development Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party.

8.4. Excused Delay: Extension of Times of Performance. In addition to the specific provisions of this Development Agreement, performance by either Party hereunder shall not be deemed to be in Default when the delay or Default is due to war; infectious disease; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; pandemics; global and/or national health crises; epidemics or pandemics; quarantine or shelter in place restrictions and/or government orders related thereto; freight embargoes; non-City governmental restrictions that prevent compliance; unusually severe weather that prevents, limits, delays or hinders the ability to perform; environmental conditions discovered that delay construction or development, including delays resulting from investigation and/or remediation of such conditions; initiatives, referenda, Third-Party Litigation challenging this Development Agreement and/or other Project Approval(s) on CEQA or any other grounds; acts or the failure to act of a governmental or quasi-governmental authority (except that acts or the failure to act of City shall not excuse performance by City); or any other similar causes beyond the control or without the fault of the Party claiming an extension of time to perform (each, “Excused Delay”). Excused Delay shall also include (provided the Party seeking the extension is acting with reasonable diligence), additional reasonable period(s) (a) required to complete compliance with and/or obtain approval, adoption or certification (as applicable) of any supplemental or subsequent environmental analysis and/or documentation required for the Project or any portion(s) thereof; (b) the full and final resolution of any Third-Party Litigation filed (and if no Thirty-Party Litigation has been filed, then the running of all applicable statutes of limitations period(s)) challenging this Development Agreement and/or other Project Approval(s) on CEQA or any other grounds in a manner that is acceptable to Developer in its sole and absolute discretion; and (c) required to complete any pending application or request before City for an action or approval under this Development Agreement or before City for an action or approval under the Project Approvals. Notwithstanding anything to the contrary in the foregoing, Developer’s failure to obtain financing for the Project shall not be considered an Excused Delay. City’s financial condition shall similarly not be considered an Excused Delay that can be relied on by City for failure to satisfy any City obligation hereunder.

Notwithstanding the foregoing or anything else to the contrary contained in this Development Agreement, no delay shall be deemed an Excused Delay unless the Party claiming the benefit of this provision shall, as a condition thereto, give notice to the other Party in writing within fifteen (15) days of the declaring Party having actual knowledge of the incident specifying with reasonable particularity the nature thereof, the reason therefor, the date and time such incident occurred and a reasonable estimate of the period that such incident will delay the fulfillment of obligations contained herein. If any notice of Excused Delay is given later than fifteen (15) days after the Party declaring such delay has actual knowledge of the existence of the Excused Delay, then the Excused Delay occurring during the period commencing on the sixteenth (16th) day after the commencement of the Excused Delay and ending on the date of such notice, shall be disregarded and deemed not to have occurred. 313

19 In the event of an Excused Delay, the Party delayed shall continue to exercise reasonable diligence to minimize the period of the delay. An extension of time for any such cause shall be limited to the period of the Excused Delay, and shall commence to run from the time of the commencement of the cause. Times of performance under this Development Agreement may also be extended by mutual written agreement by City and Developer, with the City Manager having the authority on behalf of City to so consent.

8.5. Rights of Mortgage Holders of Approved Security Interests in the Property. (a) Developer’s Default Shall Not Defeat Mortgage Lien. If Developer Defaults, any such Default shall not defeat or render invalid the lien of any Mortgage(s) made in good faith and for value as to the Property, or any portion(s) thereof or interest(s) therein; provided, however, that unless otherwise provided herein, the terms and conditions of this Development Agreement shall be binding and effective against any and all Mortgage Holder(s) whose interest is acquired by foreclosure, trustee’s sale or otherwise. (b) Holder Not Obligated to Commence or Complete Project. A Mortgage Holder shall in no way be obligated by the provisions of this Development Agreement to commence or complete construction of any Project phase(s) or to guarantee any such commencement and/or completion of same nor shall any covenant or any provision in the conveyances from City to Developer evidencing the realty comprising the Property or any part thereof be construed so to obligate such Holder; provided, however, nothing in this Development Agreement shall be deemed to or be construed to permit any such Mortgage Holder to devote the Property or any portion(s) thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Development Agreement and the other Project Approvals. (c) Notice of Default to Mortgagee, Deed of Trust or Other Security Interest Holders. With respect to any Mortgage granted by Developer on the Property or any portion(s) thereof, whenever City shall deliver any notice or demand to Developer with respect to any Default by Developer, City shall at the same time deliver a copy of such notice or demand to each Mortgage Holder of record who has previously made a written request to City therefor, or to the representative of such Mortgage Holder as may be identified in such a written request.

No Notice of Default shall be effective as to the Mortgage Holder unless such notice is given. (d) Right to Cure Developer Default Hereunder. Each Mortgage Holder (insofar as the rights of City are concerned) shall have the right, at its option, within ninety (90) days after the receipt of the Notice of Default, to:
(1) Cure or remedy or commence to cure or remedy any such Default and diligently pursue said cure until the same is completed, and (2) Add the cost of said cure to the Mortgage debt and the lien of its Mortgage.

Provided that in the case of a Default that cannot with diligence be remedied or cured within such ninety (90) day period, such Mortgage Holder shall have additional time as reasonably necessary to remedy or cure such Default.

If possession of the Property (or portion(s) thereof) is required to effectuate such cure or remedy, the Mortgage Holder shall be deemed to have timely cured or remedied if it 314

20 commences the proceedings necessary to obtain possession thereof within ninety (90) days, diligently pursues such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy (the foregoing time periods being subject to extension during the period that such Mortgage Holder is precluded from taking or pursuing any such action as a consequence of any bankruptcy stay or other court order).

If there is more than one such Mortgage Holder, the right to cure or remedy a Default of Developer under this Section 8.5 shall be exercised by the Mortgage Holder first in priority or as the holders may otherwise agree among themselves, but there shall be only one exercise of such right to cure and remedy a Default of Developer under this Section 8.5.

Nothing in this Development Agreement shall be deemed to permit or authorize such Mortgage Holder to commence or continue the construction of any Project phase(s) (beyond the extent necessary to preserve or protect the improvements or construction already made) without first having expressly assumed Developer’s obligations to City with respect to such improvements by written agreement with respect to the Property or any portion(s) thereof in which the Mortgage Holder has an interest.
(e) Rights upon Failure of Holder to Cure Developer Default on Mortgage.

During the Term of this Development Agreement and subject to any rights of Developer to challenge, cure, or satisfy any liens or encumbrances on the Property or any portion(s) thereof, in any case where thirty (30) days after default by Developer on a Mortgage and Developer has not exercised the option to cure afforded in the Mortgage or if it has exercised such option and has not proceeded diligently to cure, City may cure the Mortgage default prior to completion of any foreclosure. In such event, City shall be entitled to reimbursement from Developer of all costs and expenses incurred by City in curing the Mortgage default, including legal costs and attorneys’ fees, which right of reimbursement shall be secured by a lien upon the Property or portion(s) thereof to the extent of such costs and expenses. Any such lien shall be subject to:
(i) Any Mortgage for financing permitted by this Development Agreement; and
(ii) Any rights or interests provided in this Development Agreement for the protection of such Mortgage Holders.

City shall execute from time to time any and all documentation reasonably requested by Developer to effect such subordination.

Nothing contained herein shall be deemed to impose upon City any affirmative obligation to cure a Mortgage default by Developer (by the payment of money, construction or otherwise) with respect to the Property in the event of its enforcement of any such lien. (f) Modifications. If a Mortgage Holder should, as a condition of providing financing for development of all or a portion of the Project, request any modification of this Development Agreement in order to protect its interest in the Property or this Development Agreement, then City shall consider such request consistent with its land use authority and processed as an amendment pursuant to the terms of Section 12.5(b) below; provided, however, that any such amendment shall affect only those rights and obligations of such Mortgage Holder and City but not those of any other Developer(s) or Mortgage Holder(s) without their respective written consent.
315

21 SECTION 9. TERMINATION.

9.1. Termination Upon Completion of Project or Expiration of Term. This Development Agreement shall terminate upon the earlier of the expiration of the Term or when the Project on the Property has been fully developed in accordance with the Project Approvals, as evidenced by (a) the issuance of the last Certificate of Occupancy necessary for Project buildout, and (b) written documentation approved by both Parties that confirms Parties’ respective obligations in connection therewith and with this Development Agreement have been fully satisfied.

9.2. Termination Due to Default. After notice and expiration of the sixty (60) day cure period as specified in Section 8.1 above, if the Default has not been cured or it is not being diligently cured in the manner set forth above, the noticing Party may, at its option, give notice of its intent to terminate this Development Agreement pursuant to the Development Agreement Statute and City’s Development Agreement Procedures (“Notice of Intent to Terminate”).

Within thirty (30) days of receipt of a Notice of Intent to Terminate, the matter shall be scheduled for consideration and review in the manner set forth in the Development Agreement Statute and City’s Development Agreement Procedures. Following consideration of the evidence presented in said review, the Party alleging the Default may give written notice of termination of this Development Agreement. If a Party elects to terminate as provided herein, upon sixty (60) days’ written notice of termination, this Development Agreement shall be terminated as it relates to the Defaulting Party’s rights and obligations hereunder. Notwithstanding the foregoing, a written notice of termination given under this Section 9.2 is effective to terminate the obligations of the noticing Party only if a Default has occurred. If the noticing Party is not so authorized to terminate, the non-noticing Party shall have all rights and remedies provided herein or under applicable laws and regulations, including, without limitation, the right to specific performance of the Defaulting Party’s obligations under this Development Agreement. Once a Party alleging Default has given a written notice of termination, legal proceedings may be instituted to obtain a declaratory judgment determining the respective termination rights and obligations under this Development Agreement. Notwithstanding the foregoing, any such Default and related termination shall only extend to the Defaulting Party’s rights and obligations hereunder and shall not affect the rights and obligations of any other Assignee who has acquired other portion(s) of the Property in accordance with Section 11.1 below.

9.3. Termination by Mutual Consent. This Development Agreement may be terminated by mutual consent of the Parties in the manner provided in the Development Agreement Statute and in City’s Development Agreement Procedures.

9.4. Documentation of Termination. While the Parties intend the foregoing termination to be automatic and self-executing upon the relevant trigger(s), City agrees to promptly execute and deliver such documents and instruments in recordable form as Developer may reasonably request in order to evidence the termination of this Development Agreement.

Thereafter, Developer may cause a notice of such termination to be duly recorded in the official records of Tulare County.

SECTION 10. PARTICIPATION IN THIRD-PARTY LITIGATION; INDEMNITY.

10.1. In General. The Parties acknowledge and agree that each shall have the right to elect to defend any Third-Party Litigation subject to the obligations of this Section 10, which shall survive the expiration or termination of this Development Agreement. 316

22 10.2. Developer Indemnification in the Event of Third-Party Litigation. Subject to Section 10.3 below, Developer agrees to indemnify City and shall hold and save City harmless from any and all Claims concerning any Third-Party Litigation except if and to the extent said Claims arise from City’s sole negligence, willful misconduct, or fraudulent acts. “Third-Party Litigation” shall mean any court action or proceeding instituted by any third party (i.e., any private individual or entity or any non-City governmental or quasi-governmental authority) solely for the purpose of challenging the validity of any provision of this Development Agreement, the other Initial Approvals, the Subsequent Approvals as and when issued, granted or approved, or any CEQA issue(s) or document(s) approved in connection therewith. City shall provide Developer with prompt notice of the pendency of any action or proceeding for which it believes it is entitled to indemnity under this Section 10.2 and request that Developer defend it regarding such action or proceeding (but any delay or failure to notify Developer shall reduce Developer’s obligations to so defend or indemnify to the extent of any actual prejudice suffered by Developer due to the delay or failure). Developer’s indemnification obligations under this Section 10.2 shall survive the expiration or termination of this Development Agreement.

10.3. Cooperation in the Event of Third-Party Litigation. Subject to Section 10.4 below, Developer and City shall cooperate defending same pursuant to this Section 10.3, and the Parties shall keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information. (a) Meet and Confer. If Third-Party Litigation is filed, upon receipt of the complaint or petition, the Parties shall have twenty (20) days to meet and confer regarding the merits of such Third-Party Litigation to determine whether each Party elects to defend same and if so, whether they elect to so jointly defend, which period may be extended by the Parties’ mutual agreement so long as it does not adversely and materially impact any litigation deadlines. Subject to an election to defend, City and Developer shall mutually commit to meet all required litigation timelines and deadlines. If City and Developer agree jointly to defend the Third-Party Litigation, they shall expeditiously enter a joint defense agreement, which shall include, among other things, provisions regarding the preservation of confidential communications. The City Manager is authorized to negotiate and enter such joint defense agreement in a form reasonably acceptable to the City Attorney and Developer’s attorneys.

Such joint defense agreement shall also provide that any proposed settlement of the Third-Party Litigation shall be subject to Developer’s approval, in its reasonable discretion, except in the event City elects to solely defend under Section 10.4 below. If the terms of the proposed settlement would constitute an amendment of this Development Agreement, the settlement shall not become effective unless such amendment is mutually approved by the Parties in accordance with applicable laws and regulations.

10.4. Defense Election. If, after meeting and conferring, the Parties mutually agree (each in its sole discretion) to defend against the Third-Party Litigation, then the following shall apply:
(a) Developer shall take the lead role defending such Third-Party Litigation and may, in its sole discretion, elect to be represented by the legal counsel of its choice. (b) City may, in its sole discretion, elect to be separately represented by the City Attorney and designated litigation counsel for City, with the reasonable costs of such representation to be paid by Developer. Provided, however, if City elects to proceed with any outside legal counsel (other than the designated litigation counsel for City) of its choice in 317

23 addition to the City Attorney, then City shall be solely responsible for any such additional legal fees and costs.
(c) To the extent due hereunder, Developer shall reimburse City, within twenty (20) business days following City’s written demand therefor, reasonable legal fees and costs incurred by the City Attorney, as well as court costs, incurred in the month prior in connection with the Third-Party Litigation. Provided, however, that Developer shall not be required to pay any internal City staff costs associated with defending the Third-Party Litigation, nor any outside City legal costs (other than the designated litigation counsel for City); moreover, City shall provide Developer with reasonably sufficient information to document the basis for said request for payment.

The Parties intend that City’s role under this Section 10.4 shall be primarily oversight although City reserves its right to protect City’s interests, and City shall make good faith efforts to maximize coordination and minimize its legal costs (for example, minimizing filing separate briefs, and duplication of effort to the extent feasible).

If, after meeting and conferring, Developer and City both elect not to defend against the Third- Party Litigation, Developer shall remain obligated to indemnify and hold City harmless from and against any damages, attorneys’ fees or cost awards that are actually awarded by a court of competent jurisdiction in accordance with Section 10.2 above.

In the alternative, if Developer elects, in its sole and absolute discretion, not to defend against the Third-Party Litigation, it shall deliver written notice to City regarding such decision. If Developer elects not to defend, City has the right, but not the obligation, in its sole discretion to proceed to defend against the Third-Party Litigation at its sole cost and expense, in which case City shall then take the lead role defending such Third-Party Litigation. If, following receipt of Developer’s notice of election not to defend, City elects to defend and takes the lead role in such litigation, then City shall be solely responsible for all damages, attorney’s fees or cost awards, if any, which are actually incurred or awarded from and after such time City has made such election. Provided, however, that City shall have no right to approve any settlement obligating Developer to make any payment(s), incur any liability or take any action(s) related thereto.

10.5. Processing During Third Party Litigation. The filing of any Third-Party Litigation against City or Developer shall not delay, suspend or stop the development, processing or construction of the Project or the processing, consideration and issuance of Subsequent Approval(s) unless the subject Third-Party petitioner obtains an injunction or other court order preventing the activity at issue.

SECTION 11. ASSIGNMENT AND ASSUMPTION; RIGHTS AND DUTIES OF MORTGAGEES.

11.1. Assignment of Rights, Interests and Obligations. Subject to compliance with this Section 11, Developer may sell, assign or transfer its interest in the Property (all or any portion(s) thereof) and related Project Approvals to any individual or entity (“Assignee”) at any time during the Term of this Development Agreement without obtaining City’s consent.

Developer shall provide written notice to City of any such assignment or transfer of its interest in the Property, or any portion(s) thereof (each, an “Assignment”) by providing City with a copy of the subject Assignment Agreement pursuant to Section 11.2 below. 318

24 11.2. Assumption of Rights, Interests and Obligations. Express written assumption by an Assignee of the obligations and other terms and conditions of this Development Agreement with respect to the Property or such portion(s) thereof sold, assigned or transferred, shall relieve Developer of such obligations and other terms and conditions so expressly assumed. Any such assumption agreement shall be in substantially the same form as attached Exhibit 3 (“Assignment Agreement”). No later than ten (10) business days after the date said Assignment becomes effective, Developer shall deliver to City a fully executed and acknowledged original of the Assignment Agreement. Developer shall duly record the Assignment Agreement with the County Recorder within ten (10) days of execution and acknowledgment. Upon the recordation of each such Assignment Agreement, Developer shall be released and have no further obligations or liability under this Development Agreement with respect to the interest(s) which are Assigned and the obligations assumed under the relevant Assignment Agreement.

SECTION 12. GENERAL PROVISIONS.

12.1. Independent Contractors. Each Party is an independent contractor and shall be solely responsible for the employment, acts, omissions, control and directing of its employees.

All persons employed or utilized by Developer in connection with implementing the Project shall not be considered employees of City in any respect. Except as expressly set forth herein, nothing contained in this Development Agreement shall authorize or empower either Party to assume or create any obligation whatsoever, express or implied, on behalf of the other Party or to bind the other Party or to make any representation, warranty or commitment on behalf of the other Party.

12.2. Severability of Provisions. If any term or condition contained herein is held to be invalid, void or otherwise unenforceable by any court of competent jurisdiction, such holding shall in no way affect the validity or enforceability of any other term or condition contained herein and the remaining provisions shall continue in full force and effect.

12.3. Further Documents; Other Necessary Acts. Each Party shall execute, acknowledge and deliver to the other Party all further instruments and documents and shall take such further actions as may be reasonably necessary to carry out this Agreement and the Project Approvals in order to provide or secure to the other Party the full and complete enjoyment of the rights and privileges granted hereunder.

12.4. Time of Essence. Time is of the essence in the performance of each and every covenant and obligation to be performed by the Parties hereunder.

12.5. Amendments.
(a) Amendment by Written Consent. Except as otherwise expressly provided for herein, this Development Agreement may be amended only by the Parties’ mutual written consent.
(b) Major and Minor Amendments. Any amendment to this Development Agreement that affects or relates to: (i) the Term; (ii) permitted uses on the Property; (iii) provisions for the reservation or dedication of land; (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions; (v) the density or intensity of the use of the Property or the maximum height or size of proposed buildings; or (vi) monetary contributions by Developer, shall be deemed a “Major Amendment” and shall require giving of notice and a 319

25 public hearing before the City Council and otherwise adhere to the requirements set forth in the Development Agreement Statute. Any amendment that is not a Major Amendment shall be deemed a “Minor Amendment” and shall not, except to the extent otherwise required by applicable laws, require notice of public hearing before the parties may execute an amendment hereto.
(c) Authority to Consider Minor Amendment. The City Manager or his or her designee shall have the authority to reasonably determine if an amendment is a Major Amendment or a Minor Amendment, as well as the authority to review and approve Minor Amendment(s) administratively without public notice or hearing. (d) Recordation of Amendment. In the event the Parties amend this Development Agreement, City shall cause notice of such action to be duly recorded in the official records of Tulare County within ten (10) days of such action.

12.6. Project Is A Private Undertaking. The Project is a private undertaking of Developer. Nothing in this Development Agreement is intended to or does establish the parties as partners, co-venturers, or principal and agent with one another.

12.7. Covenants Running With The Land. This Development Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, successors and Assignees (including any and all persons acquiring all or any portion of the Property, or any interest therein, whether by operation of law or in any manner whatsoever). All of the provisions of this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to California law, including, without limitation, Civil Code Section 1468.

12.8. Recordation Of Agreement. Within ten (10) days of the Effective Date, City shall cause this Development Agreement to be duly recorded in the official records of Tulare County.

12.9. Good Faith and Fair Dealing. The Parties shall cooperate with each other and act in good faith in complying with the provisions of this Agreement. In their course of performance under this Agreement, the Parties shall cooperate and shall undertake such actions as may be reasonably necessary and appropriate to implement the Project as contemplated by this Agreement.

12.10. Notices, Demands and Communications Between the Parties. Any notice, consent, report, demand, document or other such item (each, a “Notice”) to be given under this Agreement must be in writing and shall be given by: (a) certified mail, postage prepaid, return receipt requested; (b) personal delivery; (c) reputable “overnight courier” such as Federal Express (or similar courier company); or (d) email, to the Party to whom the Notice is directed at the address of the Party set forth below, or at any other address as that party may from time to time by written notice designate to the other. Any Notice so given shall be deemed to have been given upon receipt or refusal to accept delivery except that any Notice sent via email shall be deemed given on the date sent (as evidenced by the sender’s “sent mail” mailbox) if sent prior to 5:00 p.m. (Pacific Time) on a business day and, otherwise, on the next succeeding business day.

City: City of Visalia
Attn: Planning and Community Preservation Director
320

26 315 E. Acequia Avenue
Visalia, CA 93291
Email: [__________]

Copy to: City of Visalia
Attn: City Attorney
220 N. Santa Fe St.

Visalia, CA 93292
Email: [_______________]

Developer: Seefried Industrial Properties, Inc.

Attn: Jason Quintel
2201 East Camelback Road, Suite 222
Phoenix, AZ 85016
Email: [email protected]
Larry J. Ritchie Family Limited Partnership
Attn: Larry Ritchie
[____________]
Email: [____________]
Jeffrey B. Ritchie Family Limited Partnership
Attn: Jeffrey Ritchie
[____________]
Email: [____________]

and: GVR Partners LLP
Attn: Nadia Costa
3333 Michelson Drive, Suite 300
Irvine, CA 92612
Email: [email protected]

Notices sent by a Party’s attorney on behalf of such Party shall be deemed delivered to such Party. Notices to Mortgage Holders by City shall be given as provided above using the address provided by such Mortgage Holders. Notices to Assignees shall be given by City as required above only for those Assignees who have given City written notice of their addresses for the purpose of receiving such notices. Either Party may change its mailing address/email at any time by giving written notice of such change to the other Party in the manner provided herein at least ten (10) days prior to the date such change is effected.

12.11. No Financial Assistance; Prevailing Wage Matters. City is not providing any direct or indirect financial assistance to Developer that would make any part of the Project a “public work” “paid for in whole or in part out of public funds,” as described in California Labor Code Section 1720, such that it would cause Developer to be required to pay prevailing wages for any aspect of the Project.

12.12. Interpretation. This Development Agreement shall be construed and enforced in accordance with the laws of the State of California. The terms of this Development Agreement 321

27 shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Development Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Development Agreement. The provisions of this Development Agreement and the attached exhibits shall be construed as a whole according to their common meaning and not strictly for or against either Party, and in a manner that shall achieve the purposes of this Development Agreement.

12.13. Venue. Any action brought relating to this Development Agreement shall be held exclusively in a state court in the County of Tulare.

12.14. No Waiver. Waiver of a breach or Default under this Development Agreement shall not constitute a continuing waiver or waiver of a subsequent breach of the same or any other provision of this Agreement. All waivers of the provisions of this Development Agreement, unless specified otherwise herein, must be in writing and signed by the appropriate representatives of City or Developer, as applicable.

This Agreement has been reviewed and revised by legal counsel for both City and Developer and no presumption or rule that ambiguities shall be construed against the drafting Party shall apply to the interpretation or enforcement of this Agreement.

12.15. Entire Agreement; Conflicts. This Development Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and this Development Agreement supersedes all negotiations and previous agreements between the Parties with respect to all or any part of the subject matter hereof. In the event of a conflict between the terms and conditions of the Pre-Annexation Agreement and the terms and conditions of this Agreement, to the fullest extent legally possible, this Agreement shall prevail and control.

12.16. Counterparts. This Development Agreement and any and all amendments hereto may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. Delivery of the executed Development Agreement may be accomplished by transmittal of a PDF by electronic mail, and if so done, the electronically mailed copy shall be deemed an executed original counterpart of the Development Agreement for all purposes.

12.17. No Third Party Beneficiaries. This Development Agreement and all provisions hereof is made and entered into for the sole protection and benefit of City, Developer and their respective successors and Assigns. This Development Agreement is not intended to create, nor shall it be construed to create, any third party beneficiary rights in any person or entity that is not a Party to this Development Agreement.

12.18. Authority To Execute. The individuals executing this Development Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Development Agreement on behalf of the representative legal entities of Developer and City.

12.19. Listing And Incorporation Of Exhibits. The exhibits to this Development Agreement, each of which is hereby incorporated herein by reference, are as follows:

Exhibit 1-a: Map of Property
322

28 Exhibit 1-b: Legal Description of Property
Exhibit 2: Existing Impact Fees
Exhibit 3: Form of Assignment Agreement
[SIGNATURE PAGE FOLLOWS]

323

29 IN WITNESS WHEREOF, the Parties have entered into this Development Agreement as of the Effective Date.
“CITY”
CITY OF VISALIA, a municipal corporation
and charter city
By:________________________________

ATTEST:

LESLIE CAVIGLIA, CITY CLERK
By: __________________________

APPROVED AS TO FORM:
_____________________________
Kenneth J. Richardson
City Attorney

“DEVELOPER”
“SEEFRIED INDUSTRIAL PROPERTIES, INC.”
By: _____________________________

“LJR LP”
LARRY J. RITCHIE FAMILY LIMITED
PARTNERSHIP, a California limited partnership

By: _____________________________
Larry J. Ritchie, General Partner

“JBR LP”
JEFFREY B. RITCHIE FAMILY LIMITED
PARTNERSHIP, a California limited
partnership.

By: _____________________________
Jeffrey B. Ritchie, General Partner.
324

30 Exhibit 1-a

Map of Property

325

31 Exhibit 1-b

Legal Description of Property

326

32 Exhibit 2

Existing Impact Fees

327

33 Exhibit 3

Form of Assignment Agreement

[SEE NEXT PAGE]

328

34 ASSIGNMENT AND ASSUMPTION AGREEMENT
(Development Agreement)

This Partial Assignment and Assumption Agreement (Development Agreement) (this “Agreement”) is executed as of _________, 20__, by and between [_______________], a [_________________] (“Assignor”), and [_____________], a [___________] (“Assignee”), and made effective as of the Effective Date set forth below.

A. Assignor and the CITY OF VISALIA, a municipal corporation and charter city (the “City”), entered into that certain Development Agreement, dated as of [_________], 2026 and recorded as Document No. [________] on [______], 2026 (the “DA”), relating to certain real property located within the Sphere of Influence of the City (as more particularly described in the DA, the “Property”). All capitalized terms used herein shall have the definitions given to them in the DA, unless otherwise expressly stated herein.

B. The DA provides for development of the Project (as that term is defined therein) on the Property, as more particularly described in the DA.

C. Assignor is selling, assigning or transferring a portion of the Property to Assignee, substantially concurrently with the date of this Agreement. The portion of the Property being conveyed to Assignee is more particularly described on Exhibit A attached hereto (the “Assigned Property”). This Agreement shall become effective as of the date of recordation of a grant deed conveying the Assigned Property to Assignee (the “Effective Date”).

D. Assignor desires to assign to Assignee solely with respect to the Assigned Property those rights and obligations of Assignor under the DA specifically described in Section 3 of this Agreement (collectively, the “Assigned Interests”), and Assignee desires to assume from Assignor the Assigned Interests.

NOW, THEREFORE, in consideration of the promises and the mutual agreements and covenants
set forth herein and intending to be legally bound hereby, Assignor and Assignee do hereby agree as
follows:

1. Assignment. Assignor hereby assigns to Assignee all of Assignor’s right, title and interest in and to the Assigned Interests.

2. Assumption. Assignee hereby assumes from Assignor all of Assignor’s right, title and interest in and to the Assigned Interests relating to the period from and after the Effective Date of this Agreement, and agrees to perform all of Assignor’s obligations under the DA with respect to the Assigned Interests relating to the period from and after the Effective Date of this Agreement.

3. Assigned Interests and Obligations. As used in this Agreement, Assigned Interests and obligations means the following provisions of the DA:

[___________]

4. Assignor’s Retained Rights and Obligations. As between Assignor and Assignee, Assignor hereby retains all other rights and obligations under the DA that are not specifically 329

35 applicable to the development of the Assigned Property, including without limitation, all rights and obligations applicable to development of the remainder of the Property owned by Assignor.

5. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation shall not affect the validity or enforceability of the offending term or provision in any other situation.

6. Successors and Assigns. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their successors and assigns.

7. Recording. The Parties shall execute and, concurrently with the recording of the grant deed conveying the Assigned Property to Assignee, Assignor shall record with the Tulare County recorder a copy of this Agreement.

8. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, applicable to contracts executed in and to be performed entirely within that state, and without regard to the conflict of laws provisions thereof.

9. Counterparts. This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed an original but all of which taken together shall constitute one and the same agreement.

[SIGNATURES ON NEXT PAGE]

330

36 IN WITNESS WHEREOF, Assignor and Assignee have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

ASSIGNOR:

[________________________]
By:

Name:

Title:

ASSIGNEE:

[__________________________]
By:

Name:

Title:

331

37 EXHIBIT A

TO ASSIGNMENT AND ASSUMPTION AGREEMENT

[Insert legal description and map of portion of Property being transferred]

332
Aerial Photo 2024
Ave 320
N Shirk St
W Riggin Ave
N Kelsey St
N Sidney St
N Kelsey St
MODOC
Vicinity Map
Hwy 198
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M
a
d
d
o
x
Riggin
Houston
M i n e r a l K i n g
M
a i n
G o s h e n
S
t
J
o
h
n s
Demaree
Noble
Caldwell
Mooney
Akers
Hwy 99 Shirk
Lovers Lane
P
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a
B e t t y
.

Project Site
0 500 1,000 1,500250
Feet
333
Visalia City Council
Staff Report
Visalia City Council
707 W. Acequia
Visalia, CA 93291
File #: 25-0081 Agenda Date: 4/7/2025 Agenda #: 13.

Agenda Item Wording:

Authorize Payment to National Fish and Wildlife Foundation - Authorize the fee payment of $121,000 to the National Fish and Wildlife Foundation for mitigation credits for the Caldwell Avenue Widening Project from Santa Fe Street to Lovers Lane.

Deadline for Action: 4/7/2025
Submitting Department: Community Development
Contact Name and Phone Number:

Eric Bons, Senior Civil Engineer, [email protected], (559) 713-4350 Chris Crawford, City Engineer, [email protected], (559) 713-4331 Jason Huckleberry, Engineering & Building Director, [email protected], (559) 713-4495 Department Recommendation:

Staff requests City Council authorize the fee payment of $121,000 to the National Fish and Wildlife Foundation for mitigation credits for the Caldwell Avenue Widening Project from Santa Fe Street to Lovers Lane.

Background Discussion:

The City of Visalia has a roadway widening project for Caldwell Avenue from Santa Fe Street to Lovers Lane (Rd. 140) which will widen Caldwell Avenue from 2-lanes to 4-lanes with a raised center median, curb, gutter, sidewalk, and a joint use pathway. This project will include the extension of the City’s storm drain and sanitary sewer systems within the City’s project limits.

The construction of the roadway improvements includes the replacement of an existing Tulare Irrigation District culvert west of Pinkham Street at Caldwell Avenue and the extension of the Cameron Creek culvert at the intersection of Caldwell Avenue at Lovers Lane. The replacement and extension of these culverts impact the stream channel, requiring compensatory mitigation for the authorized impact to 0.213 acres of stream channel. Mitigation requires the purchase of 0.213 acres of Aquatic Resource Credits in the Kaweah/Tule Aquatic Resource Watershed Service Area. The required credits are to be purchased from the National Fish and Wildlife Foundation’s (NFWF) Sacramento District California In-Lieu Fee Program.

The purchase of the mitigation credits is a requirement of the Regional Water Control Board to offset the stream channel impacts associated with the extension of the culverts. The purchase of mitigation credits for this project will accompany a Credit Transfer Agreement which is being prepared by the National Fish and Wildlife Foundation.

Visalia City Council Printed on 4/4/2025Page 1 of 4
powered by Legistar™
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File #: 25-0081 Agenda Date: 4/7/2025 Agenda #: 13.

Fiscal Impact:

The payment for the mitigation credits associated with the culvert extensions is within the project funding and the expenditure summary. This project is funded by SB1-LPP funds and Measure R funds as shown in the following table.

Project Funding:

Measure R Regional (Fund 133) $19,431,780
Measure R Local (Fund 131) $783,300
Senate Bill1 - Local Partnership Program (ROW phase) $400,000 Senate Bill1 - Local Partnership Program (Construction
phase) - Appropriation Request
$3,844,000
Total Project Estimate $24,459,080
Project Cost:

Environmental Process $50,000
Design Consultant (4Creeks) $1,539,231
Estimate City Design & RW Support $325,000
RW Estimate (see above) $1,600,000
Estimate Pole Relocation at Burke Street $140,000 Estimate Culvert Permits $325,000
Estimate Electrical Service $50,000
Construction Bid (Avison Construction) $14,741,768
Construction Management (Vanir) $480,090
Construction Testing (Krazan) $221,835
Estimate City Construction Staff & Misc. Const. $278,165 Estimate Construction Surveying/Staking $125,000 Construction Contingency (20%) $3,000,000
Total Project Estimate $22,876,089
Summary:

Project Funding $24,459,080
Project Cost $22,876,089
Project Budget Remain: Surplus / (Deficit) $1,582,991 Prior Council Action:

January 11, 2025: City Council authorized the execution of an agreement with Krazan & Associates, Inc. to provide Geotechnical Material Testing Services for the Caldwell Avenue Widening Project from Santa Fe Street to Lovers Lane in the amount of $221,835.

December 16, 2024: City Council authorized approval of Amendment No. 6 with 4Creeks, Inc. in the amount of $104,630.00 for additional design services related to the Caldwell Avenue Widening Project from Santa Fe Street to Lovers Lane.

November 18, 2024: City Council authorized the award of the construction contract for the Caldwell Visalia City Council Printed on 4/4/2025Page 2 of 4
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File #: 25-0081 Agenda Date: 4/7/2025 Agenda #: 13.

Avenue Widening Project from Santa Fe Street to Lovers Lane to Avison Construction, Inc. in the amount of $14,741,768.00 and execute an agreement with Vanir Construction Management, Inc. to provide construction management services for the Caldwell Avenue Widening project from Santa Fe Street to Lovers Lane in the amount of $480,090.00.

October 7, 2024: City Council accepted an update on the real property negotiations for properties needed for the Caldwell Avenue Widening from Santa Fe Street to Lovers Lane Project (CP8268).

September 16, 2024: City Council authorized approval of Amendment No. 5 with 4Creeks Inc, in the amount of $103,246.00 for additional design services related to the Caldwell Avenue Widening Project from Santa Fe Street to Lovers Lane and accept and appropriate funds allocated from the Senate Bill 1 - Local Partnership Formulaic Program (SB1-LPP) in the amount of $3,844,000.

June 3, 2024: City Council authorized the City Manager to execute a cooperative agreement for reimbursement with the County of Tulare for the installation of a sewer main in Avenue 280 (Caldwell Avenue) from Lovers Lane (Rd. 140) to Rd. 144 and the appropriation of $535,000 from the Wastewater Trunkline Fund (231).

April 1, 2024: City Council accepted an update on the real property negotiations for the properties needed for the Caldwell Avenue Widening from Santa Fe Street to Lovers Lane Project (CP8268).

December 18, 2023: City Council accepted an update on the real property negotiations for the properties need for the Caldwell Avenue Widening form Santa Fe Street to Lovers Lane Project (CP8268).

September 18, 2023: City Council accepted an update on the real property negotiations for properties needed for the Caldwell Avenue Widening from Santa Fe Street to Lover Lane Project (CP8268) August 7, 2023: City Council adopted a Resolution of Necessity to acquire property and temporary construction easements for portions of eight separate properties along Caldwell Avenue between Santa Fe Street and Lovers Lane for the purpose of widening Caldwell Avenue (CP8268).

June 5, 2023: City Council accepted an update on the real property negotiations for properties needed for the Caldwell Avenue Widening from Santa Fe Street to Lovers Lane Project (CP8268).

October 4, 2021: City Council accepted and authorized an appropriation of $1,387,000 from the Senate Bill 1 - Local Partnership Program (SB1-LPP) for the Caldwell Avenue Widening from Santa Fe to Lovers Lane Project (CP8268)
September 21, 2020: City Council authorized approval of Amendment Number 2 with 4Creeks Inc. in the amount of $489,755.00 bringing the contract from $768,000.00 to $1,257,755.00 for additional services related to the Caldwell Avenue Widening from Santa Fe to Lovers Lane (CP8268) April 20, 2020: City Council authorized amending the Measure R Supplemental Agreement for the Caldwell Avenue Widening from Santa Fe to Lovers Lane (CP8268) due to increase in the scope of work.

May 2, 2016: City Council authorized a contract with 4Creeks Engineering Co. for RFP 15-16-49 to Visalia City Council Printed on 4/4/2025Page 3 of 4
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File #: 25-0081 Agenda Date: 4/7/2025 Agenda #: 13.
prepare Plans, Specifications, and Estimate for the Caldwell Avenue Widening from Santa Fe to Lovers Lane.

November 21, 2022: City Council, in closed session, approved property appraisals and authorized City staff and consultant to purchase properties with authority to pay up to twenty percent above appraised value.

Other: None.

Alternatives: None Recommended.

Recommended Motion (and Alternative Motions if expected):

Authorize the fee payment of $121,000 to the National Fish and Wildlife Foundation for mitigation credits for the Caldwell Avenue Widening Project from Santa Fe Street to Lovers Lane.

Environmental Assessment Status:

The environmental assessment has been completed.

CEQA Review:

CEQA review was conducted by the County of Tulare for the Avenue 280 (Caldwell Avenue) Corridor Enhancement Project.

Attachments:

1. Map of Project Area
Visalia City Council Printed on 4/4/2025Page 4 of 4
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W.Caldwell Ave.

Rd 140
S Santa Fe St
S Pinkham
St
S Lovers Lane
E Monte Verde Ave
E La Vida Ave
E Victor Ave
S Ben M
addox W
ay
S Villa St
S Bridge St
E Dorothea Ave
S Cain St
S Burke St
S Kennedy St
S Thom
as St
Private
E La Salle Ave
E Arlen Ave
E Copper Ave
S Byrd St
S Bradley St
S Stover St
S Edison St
S Tipton St
E Russell Ave
S Garden St
E Mesa Ct
S Arkle StS Bradley Ct
E Sunnyside Ave
S Sheridan Ct
S Tracy St
E Country Ave
SE Sunnyside Ct
E Chestnut Ct
S Oakhurst CtE Monte Vista Ave
E South View Ave
E Chestnut Ave
E La Salle Ct
S Terra Linda St
E Copper Ct
S Bridge Ct
S Spruce CtE Monte Vista Ave
S Garden St
E Victor Ave
S Bridge St
E Arlen Ave
S Burke St
E Mesa Ct
E Chestnut Ct
E Dorothea Ave

CAMERON
TULARE IRRI. DIST.

PACKWOOD
TULARE IRRI. DIST.

TULARE IRRI. DIST.TULARE IRRI. DIST.
¨

CALDWELL AVENUE

FROM SANTA FE TO LOVERS LANE

PROJECT LIMITS
1 inch = 1,200 feet
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Visalia City Council
Staff Report
Visalia City Council
707 W. Acequia
Visalia, CA 93291
File #: 25-0083 Agenda Date: 4/7/2025 Agenda #: 14.

Agenda Item Wording:

Purchase of Two (2) CNG-Powered Solid Waste Trucks - Award the purchase of two (2) CNG- powered commercial front-load solid waste trucks to E.M. Tharp of Porterville, CA through the Sourcewell Cooperative contract in the amount of $962,748 and appropriate an additional $12,800 to the Solid Waste Enterprise Fund.

Deadline for Action: 4/7/2025
Submitting Department: Public Works
Contact Name and Phone Number:

Jason Serpa, Public Works Manager, [email protected], 713-4533 Nick Bartsch, Public Works Director, [email protected], 713-4052 Department Recommendation:

Staff recommends that the City Council award the purchase of two (2) CNG-powered commercial front-load solid waste trucks to E.M. Tharp of Porterville, CA through the Sourcewell Cooperative contract in the amount of $962,748 and appropriate an additional $12,800 to the Solid Waste Enterprise Fund.

Background Discussion:

In accordance with the replacement schedule set by the City’sCapital Improvement Program, the Solid Waste Division within the Public Works Department is seeking the authorization to replace two (2) commercial front-load solid waste trucks that were included in the FY 24/25 Budget. The type and quantity of trucks to be replaced are as follows:
(2) Commercial Front Loader (VH0309)
In the past, the City has utilized Congested Mitigation & Air Quality (CMAQ) funds to supplement costs to purchase Compressed Natural Gas (CNG) solid waste vehicles. Over the past 3 years, staff has recommended and purchased diesel-powered trucks in order to diversify the fleet and lower the costs of operation. The goal of fleet diversification was to bring the fleet to a diesel to CNG ratio of 25% diesel power and 75% CNG power. As of FY23/24, this ratio had been achieved. While the CMAQ funds are no longer available for the current needed replacements, Staff is recommending the new purchases revert back to CNG powered trucks to be able to continue utilizing the CNG fuel line.

E.M. Tharp is the Peterbilt chassis dealer in the area and will coordinate with Ray Gaskin Service, a New Way body supplier out of Fontana, CA to install the truck bodies.

Sourcewell Cooperative Purchasing helps the City save time and money by purchasing from ready-to -use, competitively solicited contracts. Cooperative Purchasing is “Procurementconducted by, or on Visalia City Council Printed on 4/4/2025Page 1 of 4
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File #: 25-0083 Agenda Date: 4/7/2025 Agenda #: 14.
-use, competitively solicited contracts. Cooperative Purchasing is “Procurementconducted by, or on behalf of, one or more Public Procurement Units,”as defined by the American Bar Association Model Procurement Code for State and Local Governments. Sourcewell streamlines the purchasing process by developing Requests for Purchase for national competitive solicitations that meet or exceed local requirements. Because E.M. Tharp is the Peterbuilt dealer in Tulare County, and Peterbuilt Trucks are already competitively bid by Sourcewell, the City is able to utilize that contract to obtain the Sourcewell price. This helps the City maintain a uniform fleet by using the same truck and body manufacturers available through a local dealer, thus keeping maintenance costs down for fleet maintenance and repair.

The Visalia Solid Waste Division operates a fleet of 61 trucks, including: (19) commercial front-load trucks, (5) roll-off trucks, and (37) residential side-load trucks. The current replacement program for a solid waste truck is 10 years. As mentioned previously, the two trucks being replaced were included in the FY 24/25 budget. Once they are replaced, the trucks will have been in operation for 12 years.

Over the last five fiscal years, the Solid Waste Division has replaced (50) refuse trucks, thus improving the City’s fleet to more current standards and greater operational efficiency and effectiveness. The replacement schedule that pertains to this report and for the future is as follows:

FY 24/25: (7) trucks - 5 residential trucks ordered in March 2025, leaving these 2 commercial trucks to complete this fiscal year’s order.

FY 25/26: (3) trucks
After FY25/26, all Solid Waste trucks will have gone through a recent replacement cycle, and the new replacement cycle would begin anew in FY31/32.

Carbon footprint:

With the exception of electric-powered, the current Cummins Westport CNG engine is the lowest Nitrogen Oxide (NOx) producing engine for solid waste collection vehicles. The Valley Air Pollution District states that these engines burn ten times cleaner than the older CNG engines that the City will be replacing.

Continuing with the environmental landscape, the Solid Waste Division understands the impact of current legislation regarding zero emissions. While currently, there are electric solid waste trucks available in the market, because they are built on new technology, there is limited performance and reliability information available to assure confidence that these vehicles will be capable of meeting the ongoing requirements needed to maintain current operations. Due to the high cost of purchase, even with grant funding, coupled with the need for electric infrastructure improvements, staff does not recommend the conversion to electric-powered trucks for current replacement vehicles, but rather possibly through a pilot program in the future.

The Public Works Department is continuing to research alternative fuel options, including pilot projects to power electric- and/or hydrogen-fueled trucks.

Fiscal Impact:

The City's Capital Improvement Plan included $950,000 to purchase 2 trucks for the fiscal year 24/25 Visalia City Council Printed on 4/4/2025Page 2 of 4
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File #: 25-0083 Agenda Date: 4/7/2025 Agenda #: 14.

The City's Capital Improvement Plan included $950,000 to purchase 2 trucks for the fiscal year 24/25 (VH0309). The $12,800 shortfall from the budgeted amount of $950,000 will need to be appropriated to be able to fund the purchase.

CIP Project #
Total Amount
Budgeted FY 24/25 Order Surplus
VH0309 $950,000 $962,748 ($12,748)
This purchase will be (2) trucks and will be paid for by the Solid Waste Enterprise Fund (441). Any remaining funds, such as proceeds from auctioning old vehicles, will return to the Solid Waste Fund (441).

Prior Council Action:

May 20, 2019 Award Purchase of 4 CNG refuse trucks to E.M. Tharp.

January 6, 2020 Award Purchase of 13 CNG refuse trucks to E.M. Tharp.

May 18, 2020 Award Purchase of 13 CNG refuse trucks to E.M. Tharp.

June 7, 2021 Award Purchase of 6 Diesel refuse trucks to E.M. Tharp.

May 16, 2022 Award Purchase of 2 Diesel refuse trucks to E.M. Tharp.

March 3, 2023 Award Purchase of 7 Diesel refuse trucks to E.M. Tharp.

February 20, 2024 Award Purchase of 5 CNG refuse trucks to E.M. Tharp.

March 17, 2025 Award Purchase of 5 CNG refuse trucks to E.M. Tharp.

Other:

N/A
Alternatives:

Choose not to authorize the use of Sourcewell’snational cooperative agreement with E.M. Tharp, Inc. This is not recommended as there can be significant delays with the procurement of vehicles.

This may result in higher maintenance costs to keep older vehicles operating in the meantime.

Recommended Motion (and Alternative Motions if expected):

I move to authorize the purchase of two (2) CNG-powered commercial front-load solid waste trucks to E.M. Tharp of Porterville, CA through the Sourcewell Cooperative contract in the amount of $962,748 and appropriate an additional $12,800 to the Solid Waste Enterprise Fund.

Environmental Assessment Status:

N/A
CEQA Review:

N/A
Attachments:

Sourcewell Pricing Quote - Front Load Truck (CNG)
Vehicle Purchase Authorization Forms
Visalia City Council Printed on 4/4/2025Page 3 of 4
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File #: 25-0083 Agenda Date: 4/7/2025 Agenda #: 14.

Sourcewell Contract
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INSERT NOTES
BODY PRICE (IF APPLICABLE)$208,766

HEAVY-DUTY
520 - 520EV - 567 - 579 -
579EV - 589

25.00%TOTAL PRICE FOR CAB &

CHASSIS AND ALL SOURCED

GOODS/SERVICES
$481,374
SOURCEWELL DISCOUNT % 25.00% 220/220EV 5.00%
SOURCEWELL DISCOUNT $ $76,416

MEDIUM-DUTY
535 - 536 - 537 - 548 15.00%
SOURCEWELL CAB & CHASSIS PRICE$229,249
848881

SOURCEWELL PETERBILT DEALER QUOTE/INVOICE TEMPLATE
*SEPTEMBER 2023 REVISION

TOTAL PRICE FOR ALL SOURCED
GOODS/SERVICES $43,359
PETERBILT MODEL 520
PETERBILT MOTORS COMPANY SOURCEWELL CONTRACT # 060920
*DEALER TO FILL IN ALL GREY CELLS
Golden State Peterbilt
City of Visalia
CHASSIS # 752863-752864
CAB & CHASSIS LIST PRICE $305,665 PETERBILT MODELSOURCEWELL DISCOUNT 343
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Solicitation Number: RFP #032824

CONTRACT

This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Peterbilt Motors Company, 1700 Woodbrook Street, Denton, TX 76205 (Supplier).

Sourcewell is a State of Minnesota local government unit and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to government entities. Participation is open to eligible federal, state/province, and municipal governmental entities, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada.

Sourcewell issued a public solicitation for Class 4-8 Chassis and Cabs with Related Equipment, Accessories, and Services from which Supplier was awarded a contract.

Supplier desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and the entities that access Sourcewell’s cooperative purchasing contracts (Participating Entities).

1. TERM OF CONTRACT

A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.

EXPIRATION DATE AND EXTENSION. This Contract expires July 9, 2028, unless it is cancelled sooner pursuant to Article 22. This Contract allows up to three additional one-year extensions upon the request of Sourcewell and written agreement by Supplier. Sourcewell retains the right to consider additional extensions beyond seven years as required under exceptional circumstances.

B. SURVIVAL OF TERMS. Notwithstanding any expiration or termination of this Contract, all payment obligations incurred prior to expiration or termination will survive, as will the following: Articles 11 through 14 survive the expiration or cancellation of this Contract. All other rights will cease upon expiration or termination of this Contract.

2. EQUIPMENT, PRODUCTS, OR SERVICES









 


 
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A. EQUIPMENT, PRODUCTS, OR SERVICES. Supplier will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above.

Supplier’s Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract.

All Equipment and Products provided under this Contract must be new and the current model.

Supplier may offer close-out or refurbished Equipment or Products if they are clearly indicated in Supplier’s product and pricing list. Unless agreed to by the Participating Entities in advance, Equipment or Products must be delivered as operational to the Participating Entity’s site.

This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed.

B. WARRANTY. Supplier warrants that all Equipment, Products, and Services furnished are free from liens and encumbrances, and are free from defects in design, materials, and workmanship.

In addition, Supplier warrants the Equipment, Products, and Services are suitable for and will perform in accordance with the ordinary use for which they are intended. Supplier’s dealers and distributors must agree to assist the Participating Entity in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer’s warranty that extends beyond the expiration of the Supplier’s warranty will be passed on to the Participating Entity.

C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution and throughout the Contract term, Supplier must provide to Sourcewell a current means to validate or authenticate Supplier’s authorized dealers, distributors, or resellers relative to the Equipment, Products, and Services offered under this Contract, which will be incorporated into this Contract by reference. It is the Supplier’s responsibility to ensure Sourcewell receives the most current information.

3. PRICING

All Equipment, Products, or Services under this Contract will be priced at or below the price stated in Supplier’s Proposal.

When providing pricing quotes to Participating Entities, all pricing quoted must reflect a Participating Entity’s total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Participating Entity’s requested delivery location.

Regardless of the payment method chosen by the Participating Entity, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Participating Entity at the time of purchase.









 


 
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A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Supplier must permit the Equipment and Products to be returned within a reasonable time at no cost to Sourcewell or its Participating Entities.

Participating Entities reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery. In the event of the delivery of nonconforming Equipment and Products, the Participating Entity will notify the Supplier as soon as possible and the Supplier will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Participating Entity.

Supplier must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition.

Sourcewell may declare the Supplier in breach of this Contract if the Supplier intentionally delivers substandard or inferior Equipment or Products.

B. SALES TAX. Each Participating Entity is responsible for supplying the Supplier with valid tax- exemption certification(s). When ordering, a Participating Entity must indicate if it is a tax- exempt entity.

C. HOT LIST PRICING. At any time during this Contract, Supplier may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract.

When Supplier determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below.

Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Participating Entities.

4. PRODUCT AND PRICING CHANGE REQUESTS

Supplier may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Supplier Development Administrator. This approved form is available from the assigned Sourcewell Supplier Development Administrator.

At a minimum, the request must:

x Identify the applicable Sourcewell contract number;








 


 
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x Clearly specify the requested change;
x Provide sufficient detail to justify the requested change; x Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change); and x Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged.

A fully executed Sourcewell Price and Product Change Request Form will become an amendment to this Contract and will be incorporated by reference.

5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS

A. PARTICIPATION. Sourcewell’s cooperative contracts are available and open to public and nonprofit entities across the United States and Canada; such as federal, state/province, municipal, K-12 and higher education, tribal government, and other public entities.

The benefits of this Contract should be available to all Participating Entities that can legally access the Equipment, Products, or Services under this Contract. A Participating Entity’s authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Supplier understands that a Participating Entity’s use of this Contract is at the Participating Entity’s sole convenience and Participating Entities reserve the right to obtain like Equipment, Products, or Services from any other source.

Supplier is responsible for familiarizing its sales and service forces with Sourcewell contract use eligibility requirements and documentation and will encourage potential participating entities to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its roster during the term of this Contract.

B. PUBLIC FACILITIES. Supplier’s employees may be required to perform work at government- owned facilities, including schools. Supplier’s employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Participating Entity policies and procedures, and all applicable laws.

6. PARTICIPATING ENTITY USE AND PURCHASING

A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, a Participating Entity must clearly indicate to Supplier that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Supplier. Typically, a Participating Entity will issue an order directly to Supplier or its authorized 







 


 
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subsidiary, distributor, dealer, or reseller. If a Participating Entity issues a purchase order, it may use its own forms, but the purchase order should clearly note the applicable Sourcewell contract number. All Participating Entity orders under this Contract must be issued prior to expiration or cancellation of this Contract; however, Supplier performance, Participating Entity payment obligations, and any applicable warranty periods or other Supplier or Participating Entity obligations may extend beyond the term of this Contract.

Supplier’s acceptable forms of payment are included in its attached Proposal. Participating Entities will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Participating Entity.

B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and conditions to a purchase order, or other required transaction documentation, may be negotiated between a Participating Entity and Supplier, such as job or industry-specific requirements, legal requirements (e.g., affirmative action or immigration status requirements), or specific local policy requirements. Some Participating Entities may require the use of a Participating Addendum, the terms of which will be negotiated directly between the Participating Entity and the Supplier or its authorized dealers, distributors, or resellers, as applicable. Any negotiated additional terms and conditions must never be less favorable to the Participating Entity than what is contained in this Contract.

C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires service or specialized performance requirements not addressed in this Contract (such as e- commerce specifications, specialized delivery requirements, or other specifications and requirements), the Participating Entity and the Supplier may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement.

D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or in part, immediately upon notice to Supplier in the event of any of the following events:

1. The Participating Entity fails to receive funding or appropriation from its governing body at levels sufficient to pay for the equipment, products, or services to be purchased; or

2. Federal, state, or provincial laws or regulations prohibit the purchase or change the Participating Entity’s requirements.

E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Participating Entity’s order will be determined by the Participating Entity making the purchase.

7. CUSTOMER SERVICE









 


 
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A. PRIMARY ACCOUNT REPRESENTATIVE. Supplier will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for:

x Maintenance and management of this Contract;
x Timely response to all Sourcewell and Participating Entity inquiries; and x Business reviews to Sourcewell and Participating Entities, if applicable.

B. BUSINESS REVIEWS. Supplier must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to Participating Entities, pricing and contract terms, administrative fees, sales data reports, performance issues, supply issues, customer issues, and any other necessary information.

8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT

A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Supplier must provide a contract sales activity report (Report) to the Sourcewell Supplier Development Administrator assigned to this Contract. Reports are due no later than 45 days after the end of each calendar quarter. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Supplier must submit a report indicating no sales were made).

The Report must contain the following fields:

x Participating Entity Name (e.g., City of Staples Highway Department); x Participating Entity Physical Street Address;
x Participating Entity City;
x Participating Entity State/Province;
x Participating Entity Zip/Postal Code;
x Participating Entity Contact Name;
x Participating Entity Contact Email Address;
x Participating Entity Contact Telephone Number;
x Sourcewell Assigned Entity/Participating Entity Number; x Item Purchased Description;
x Item Purchased Price;
x Sourcewell Administrative Fee Applied; and
x Date Purchase was invoiced/sale was recognized as revenue by Supplier.

B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Supplier will pay an administrative fee to Sourcewell on all Equipment, Products, and Services provided to Participating Entities. The Administrative Fee must be included in, and not added to, the pricing. Supplier may not charge Participating Entities more than the contracted 







 


 
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price to offset the Administrative Fee.

The Supplier will submit payment to Sourcewell for the percentage of administrative fee stated in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased by Participating Entities under this Contract during each calendar quarter. Payments should note the Supplier’s name and Sourcewell-assigned contract number in the memo; and must be mailed to the address above “Attn: Accounts Receivable” or remitted electronically to Sourcewell’s banking institution per Sourcewell’s Finance department instructions. Payments must be received no later than 45 calendar days after the end of each calendar quarter.

Supplier agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract.

In the event the Supplier is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Supplier in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract’s expiration date, the administrative fee payment will be due no more than 30 days from the cancellation date.

9. AUTHORIZED REPRESENTATIVE

Sourcewell's Authorized Representative is its Chief Procurement Officer.

Supplier’s Authorized Representative is the person named in the Supplier’s Proposal. If Supplier’s Authorized Representative changes at any time during this Contract, Supplier must promptly notify Sourcewell in writing.

10. AUDIT, ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE

A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records, documents, and accounting procedures and practices relevant to this Contract are subject to examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the end of this Contract. This clause extends to Participating Entities as it relates to business conducted by that Participating Entity under this Contract.

B. ASSIGNMENT. Neither party may assign or otherwise transfer its rights or obligations under this Contract without the prior written consent of the other party and a fully executed assignment agreement. Such consent will not be unreasonably withheld. Any prohibited assignment will be invalid.

C. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been duly executed by the parties.









 


 
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D. WAIVER. Failure by either party to take action or assert any right under this Contract will not be deemed a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right. Any such waiver must be in writing and signed by the parties.

E. CONTRACT COMPLETE. This Contract represents the complete agreement between the parties. No other understanding regarding this Contract, whether written or oral, may be used to bind either party. For any conflict between the attached Proposal and the terms set out in Articles 1-22 of this Contract, the terms of Articles 1-22 will govern.

F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, or any other relationship such as master-servant, or principal-agent.

11. INDEMNITY AND HOLD HARMLESS

Supplier must indemnify, defend, save, and hold Sourcewell and its Participating Entities, including their agents and employees, harmless from any claims or causes of action, including attorneys’ fees incurred by Sourcewell or its Participating Entities, arising out of any act or omission in the performance of this Contract by the Supplier or its agents or employees; this indemnification includes injury or death to person(s) or property alleged to have been caused by some defect in the Equipment, Products, or Services under this Contract to the extent the Equipment, Product, or Service has been used according to its specifications. Sourcewell’s responsibility will be governed by the State of Minnesota’s Tort Liability Act (Minnesota Statutes Chapter 466) and other applicable law.

12. GOVERNMENT DATA PRACTICES

Supplier and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, maintained, or disseminated by the Supplier under this Contract.

13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING, AND ENDORSEMENT

A. INTELLECTUAL PROPERTY

1. Grant of License. During the term of this Contract:
a. Sourcewell grants to Supplier a royalty-free, worldwide, non-exclusive right and license to use the trademark(s) provided to Supplier by Sourcewell in advertising and promotional materials for the purpose of marketing Sourcewell’s relationship with Supplier.








 


 
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b. Supplier grants to Sourcewell a royalty-free, worldwide, non-exclusive right and license to use Supplier’s trademarks in advertising and promotional materials for the purpose of marketing Supplier’s relationship with Sourcewell.

2. Limited Right of Sublicense. The right and license granted herein includes a limited right of each party to grant sublicenses to their respective subsidiaries, distributors, dealers, resellers, marketing representatives, and agents (collectively “Permitted Sublicensees”) in advertising and promotional materials for the purpose of marketing the Parties’ relationship to Participating Entities. Any sublicense granted will be subject to the terms and conditions of this Article. Each party will be responsible for any breach of this Article by any of their respective sublicensees.

3. Use; Quality Control.
a. Neither party may alter the other party’s trademarks from the form provided and must comply with removal requests as to specific uses of its trademarks or logos.
b. Each party agrees to use, and to cause its Permitted Sublicensees to use, the other party’s trademarks only in good faith and in a dignified manner consistent with such party’s use of the trademarks. Upon written notice to the breaching party, the breaching party has 30 days of the date of the written notice to cure the breach or the license will be terminated.

4. Termination. Upon the termination of this Contract for any reason, each party, including Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites, and the like bearing the other party’s name or logo (excepting Sourcewell’s pre-printed catalog of suppliers which may be used until the next printing). Supplier must return all marketing and promotional materials, including signage, provided by Sourcewell, or dispose of it according to Sourcewell’s written directions.

B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Supplier individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract.

C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be approved by Sourcewell. Send all approval requests to the Sourcewell Supplier Development Administrator assigned to this Contract.

D. ENDORSEMENT. The Supplier must not claim that Sourcewell endorses its Equipment, Products, or Services.









 


 
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14. GOVERNING LAW, JURISDICTION, AND VENUE

The substantive and procedural laws of the State of Minnesota will govern this Contract. Venue for all legal proceedings arising out of this Contract, or its breach, must be in the appropriate state court in Todd County, Minnesota or federal court in Fergus Falls, Minnesota.

15. FORCE MAJEURE

Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default.

16. SEVERABILITY

If any provision of this Contract is found by a court of competent jurisdiction to be illegal, unenforceable, or void then both parties will be relieved from all obligations arising from that provision. If the remainder of this Contract is capable of being performed, it will not be affected by such determination or finding and must be fully performed.

17. PERFORMANCE, DEFAULT, AND REMEDIES

A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows:

1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary, Sourcewell and the Supplier will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties.

2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Supplier may escalate the resolution of the issue to a higher level of management. The Supplier will have 30 calendar days to cure an outstanding issue.

3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Supplier must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Supplier fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, the Supplier will bear any additional costs incurred by Sourcewell and/or its Participating Entities as a result of such failure to proceed.

B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Participating Entity order under this Contract, in default:

1. Nonperformance of contractual requirements, or

2. A material breach of any term or condition of this Contract. 







 


 
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The party claiming default must provide written notice of the default, with 30 calendar days to cure the default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non-defaulting party may:

x Exercise any remedy provided by law or equity, or
x Terminate the Contract or any portion thereof, including any orders issued against the Contract.

18. INSURANCE

A. REQUIREMENTS. At its own expense, Supplier must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an “AM BEST” rating of A- or better, with coverage and limits of insurance not less than the following:

1. Workers’ Compensation and Employer’s Liability.

Workers’ Compensation: As required by any applicable law or regulation.

Employer's Liability Insurance: must be provided in amounts not less than listed below:

Minimum limits:
$500,000 each accident for bodily injury by accident
$500,000 policy limit for bodily injury by disease
$500,000 each employee for bodily injury by disease

2. Commercial General Liability Insurance. Supplier will maintain insurance covering its operations, with coverage on an occurrence basis, and must be subject to terms no less broad than the Insurance Services Office (“ISO”) Commercial General Liability Form CG0001 (2001 or newer edition), or equivalent. At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products-completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract.

Minimum Limits:
$1,000,000 each occurrence Bodily Injury and Property Damage $1,000,000 Personal and Advertising Injury
$2,000,000 aggregate for products liability-completed operations $2,000,000 general aggregate

3. Commercial Automobile Liability Insurance. During the term of this Contract, Supplier will maintain insurance covering all owned, hired, and non-owned automobiles in limits of liability not less than indicated below. The coverage must be subject to terms 







 


 
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no less broad than ISO Business Auto Coverage Form CA 0001 (2010 edition or newer), or equivalent.

Minimum Limits:
$1,000,000 each accident, combined single limit

4. Umbrella Insurance. During the term of this Contract, Supplier will maintain umbrella coverage over Employer’s Liability, Commercial General Liability, and Commercial Automobile.

Minimum Limits:
$2,000,000

5. Professional/Technical, Errors and Omissions, and/or Miscellaneous Professional Liability. During the term of this Contract, Supplier will maintain coverage for all claims the Supplier may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Supplier’s professional services required under this Contract.

Minimum Limits:
$2,000,000 per claim or event
$2,000,000 – annual aggregate

6. Network Security and Privacy Liability Insurance. During the term of this Contract, Supplier will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Supplier’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data – including but not limited to, confidential or private information, transmission of a computer virus, or denial of service.

Minimum limits:
$2,000,000 per occurrence
$2,000,000 annual aggregate

Failure of Supplier to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default.

B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Supplier must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Supplier Development Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf.









 


 
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Failure to request certificates of insurance by Sourcewell, or failure of Supplier to provide certificates of insurance, in no way limits or relieves Supplier of its duties and responsibilities in this Contract.

C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Supplier agrees to list Sourcewell and its Participating Entities, including their officers, agents, and employees, as an additional insured under the Supplier’s commercial general liability insurance policy with respect to liability arising out of activities, “operations,” or “work” performed by or on behalf of Supplier, and products and completed operations of Supplier. The policy provision(s) or endorsement(s) must further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds.

D. WAIVER OF SUBROGATION. Supplier waives and must require (by endorsement or otherwise) all its insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the insurance policies required by this Contract or other insurance applicable to the Supplier or its subcontractors. The waiver must apply to all deductibles and/or self-insured retentions applicable to the required or any other insurance maintained by the Supplier or its subcontractors. Where permitted by law, Supplier must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors.

E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies), or self-insured retention.

19. COMPLIANCE

A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold.

B. LICENSES. Supplier must maintain a valid and current status on all required federal, state/provincial, and local licenses, bonds, and permits required for the operation of the business that the Supplier conducts with Sourcewell and Participating Entities.

20. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION

Supplier certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Supplier declares bankruptcy, Supplier must immediately notify Sourcewell in writing.









 


 
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Supplier certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota; the United States federal government or the Canadian government, as applicable; or any Participating Entity. Supplier certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Supplier further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time.

21. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER

UNITED STATES FEDERAL AWARDS OR OTHER AWARDS

Participating Entities that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may have additional requirements based on specific funding source terms or conditions. Within this Article, all references to “federal” should be interpreted to mean the United States federal government.

The following list only applies when a Participating Entity accesses Supplier’s Equipment, Products, or Services with United States federal funds.

A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60-

1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. § 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause is incorporated herein by reference.

B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with 







 


 
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the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Supplier must be in compliance with all applicable Davis-Bacon Act provisions.

C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5).

Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.

D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. If the federal award meets the definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 C.F.R. § 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency. Supplier certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Supplier must comply with applicable requirements as referenced above.

E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). 







 


 
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Supplier certifies that during the term of this Contract will comply with applicable requirements as referenced above.

F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Supplier certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency.

G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Suppliers must file any required certifications. Suppliers must not have used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Suppliers must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Suppliers must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352).

H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Supplier must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Supplier further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.

I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Supplier must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Supplier must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition.

K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Supplier agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and 







 


 
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records of Supplier that are directly pertinent to Supplier’s discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Supplier’s personnel for the purpose of interview and discussion relating to such documents.

L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

M. FEDERAL SEAL(S), LOGOS, AND FLAGS. The Supplier cannot use the seal(s), logos, crests, or reproductions of flags or likenesses of Federal agency officials without specific pre-approval.

N. NO OBLIGATION BY FEDERAL GOVERNMENT. The U.S. federal government is not a party to this Contract or any purchase by a Participating Entity and is not subject to any obligations or liabilities to the Participating Entity, Supplier, or any other party pertaining to any matter resulting from the Contract or any purchase by an authorized user.

O. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS OR RELATED ACTS. The Contractor acknowledges that 31 U.S.C. 38 (Administrative Remedies for False Claims and Statements) applies to the Supplier’s actions pertaining to this Contract or any purchase by a Participating Entity.

P. FEDERAL DEBT. The Supplier certifies that it is non-delinquent in its repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowance, and benefit overpayments.

Q. CONFLICTS OF INTEREST. The Supplier must notify the U.S. Office of General Services, Sourcewell, and Participating Entity as soon as possible if this Contract or any aspect related to the anticipated work under this Contract raises an actual or potential conflict of interest (as described in 2 C.F.R. Part 200). The Supplier must explain the actual or potential conflict in writing in sufficient detail so that the U.S. Office of General Services, Sourcewell, and Participating Entity are able to assess the actual or potential conflict; and provide any additional information as necessary or requested.









 


 
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R. U.S. EXECUTIVE ORDER 13224. The Supplier, and its subcontractors, must comply with U.S.

Executive Order 13224 and U.S. Laws that prohibit transactions with and provision of resources and support to individuals and organizations associated with terrorism.

S. PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT. To the extent applicable, Supplier certifies that during the term of this Contract it will comply with applicable requirements of 2 C.F.R. § 200.216.

T. DOMESTIC PREFERENCES FOR PROCUREMENTS. To the extent applicable, Supplier certifies that during the term of this Contract will comply with applicable requirements of 2 C.F.R. § 200.322.

22. CANCELLATION

Sourcewell or Supplier may cancel this Contract at any time, with or without cause, upon 60 days’ written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Supplier’s Proposal. Cancellation of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to cancellation.

Sourcewell Peterbilt Motors Company

By: __________________________ By: __________________________ Jeremy Schwartz Phill Hall
Title: Chief Procurement Officer Ti tle: National Fleet Sales Manager

Date: ________________________

Date: ________________________









 


 















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Bid Number: RFP 032824 Vendor Name: Peterbilt Motors - MD Sales 







 


 
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Bid Number: RFP 032824 Vendor Name: Peterbilt Motors - MD Sales 







 


 
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Visalia City Council
Staff Report
Visalia City Council
707 W. Acequia
Visalia, CA 93291
File #: 25-0095 Agenda Date: 4/7/2025 Agenda #: 15.

Agenda Item Wording:

Purchase of John Deere Tractor - Authorize the City Manager to award a purchase order to Lawrence Tractor, Visalia, CA, for an amount not to exceed $134,438.00.

Deadline for Action: 4/7/2025
Submitting Department: Community Services
Contact Name and Phone Number:

Daryl Tillman, Park Maintenance Supervisor 713-4435; [email protected] Alvin Dias, Parks and Facilities Manager 713-4564; [email protected] Jason Glick, Parks and Recreation Director 713-4042; [email protected]
Department Recommendation:

Staff recommends the City Council authorize the City Manager to award a purchase order using the Sourcewell Purchasing Partnership from Lawrence Tractor, of Visalia, CA, for an amount not to exceed of $134,438.00.

Background Discussion:

At the December 16, 2024, City of Visalia Council Meeting, City Council approved the consolidation of services from contracted work to City provided services, which included the purchase of a new John Deere 5130 tractor. This vehicle will be used by the new trail staff for the maintenance of the City’s trail system, East Side Regional Park recharge basins, and the Parks Division’s green waste removal from the Corporation Yard.

Staff reached out to Lawrence Tractor, of Visalia, CA, for a price quote on a new John Deere 5130 tractor with loader attachment that met all the department’s specifications. Lawrence Tractor provided a price estimate using Sourcewell, which allows the City to participate in an already existing purchasing contract that was competitively bid on and offers a significant reduction ($35,022.89) in the unit price. The cost for the new John Deere 5130 tractor with loader attachment Compact will be $134,438.00.

This equipment will also provide flexibility for future maintenance needs by adding implements that could be used for grading fields, brush clean up, and discing park owned properties. Staff will also be able to perform weed control within the large parcels of land at the East Side Regional Park by tilling the soil annually, saving an additional $3,000.

Fiscal Impact:

The City Council approved the appropriation of $175,000.00 in CIP VH0342 for the purchase of a tractor and flail for the newly created Trail Maintenance Division. The total cost for the purchase of Visalia City Council Printed on 4/4/2025Page 1 of 2
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File #: 25-0095 Agenda Date: 4/7/2025 Agenda #: 15.
the tractor received is $134,437.46 within the budgeted amount.

Prior Council Action: None
Other: None
Alternatives: Reject the purchase and look for an alternative vehicle.

Recommended Motion (and Alternative Motions if expected):

I move to authorize the City Manager to award a purchase order using the Sourcewell Purchasing Partnership from Lawrence Tractor, of Visalia, CA, for an amount not to exceed of $134,438.00.

Environmental Assessment Status: N/A
CEQA Review: N/A
Attachments: Lawrence Tractor Quote, Sourcewell Purchasing Partnership Contract, Authorization Form and Specifications
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Last Update: November 15, 2023

Sourcewell – Ag Tractors with Related Attachments, Accessories and Supplies Contract Number: 082923-DAC
Contract Period: October 16, 2023 – October 11, 2027
Eligibility: The contract allows for service to Sourcewell Member agencies in all states.

The following eligibility requirements must be met:
• Entity must be a Sourcewell Member. John Deere dealers must verify membership before quoting. Please include the Sourcewell member number on the dealer quote or on the Sourcewell Member's purchase order.
• Eligible Sourcewell Members are state, city, county, municipal or local tax-supported governmental agencies, turnpikes, airports, housing authorities, electric cooperatives, water cooperatives, K-12 public school systems, public and private higher education facilities such as colleges and universities, public and volunteer fire departments, public or non-profit museums, libraries and zoos.
• Eligible Sourcewell Member non-profit agencies are eligible to purchase John Deere equipment on the Sourcewell contract.

Members of the Illinois Public Higher Education Cooperative (IPHEC) are also eligible to use this Sourcewell Contract. IPHEC is comprised of universities and community colleges located in Illinois. Before quoting, please review the list of IPHEC Members to verify eligibility.

To become a Sourcewell Member, call 877-585-9706 for more details or visit the Sourcewell website t o complete an application.

To obtain a membership list of eligible U.S. Government, Education and Nonprofit entities belonging to Sourcewell, please visit the Sourcewell Member Locator and select either the Government & Education or Nonprofit downloaded spreadsheets.

Quotes and Purchase Orders:

Quotes are valid for 30 days from the creation date of the quote OR until the contract expires, whichever occurs first.

To obtain a quote, contact your local John Deere Dealer. Submit your purchase order to your dealer. The John Deere Dealer will submit the purchase order to John Deere’s Government Sales office.

All purchase orders must show Deere & Company as the vendor and reference the contract number.

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Contract Details
Delivery
Obligations
None.

Fees Delivery Charge
Optional delivery charge of $8.00 per loaded mile is allowed for the delivering dealer. Use Google Maps t o calculate the mileage.

State Fees
• California Tire Fee All Motorized Equipment $1.75 per New Tire Please review the California Tire Fee publication issued by the California Department of Tax and Fee Administration for more details. California Tire Fee must be included on the Quote or Purchase Order. Sales to American Indians occurring on Indian reservations are exempt from the fee.

• Louisiana Waste Tire Fee All Tractors $10.00 per New Tire

Fees must be clearly labeled on the quote or purchase order.

Financing John Deere Municipal Lease by John Deere Financial Allowed: If the agency rules and guidelines allow. This 12-60-month financial product require payments and enables ownership of the equipment.

Government Operating Lease by John Deere Financial
Allowed: If the agency rules and guidelines allow. This 24-60-month product requires payments and the equipment is returned to the dealer location at the end of the term.

Retail Note Financing by John Deere Financial or Third Party Allowed: If the agency rules and guidelines allow.

Machine
Hours
Not Allowed: Due to factory delivery, pre-delivery, inspection, machine setup and installation of attachments, machines may have minimal hours. Machines designated as demos are not allowed.

Manuals An operator’s manual is included with the delivery of the equipment at no charge.

Miscellaneous Shipping charges
Alaska (AK) and Hawaii (HI): Shipping charges apply.

For deliveries to AK or HI, factory freight to the delivering dealer will be paid by the Sourcewell member. Factory freight is known at the time of quoting and will be included on the quote to the Sourcewell member.
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Continental US: For all other deliveries within the continental US (excludes AK & HI), the Sourcewell member will NOT be charged factory freight to the delivering dealer.

Multiple Unit
Discount
Sales of 3 or more like self-propelled products sold on the same purchase order are eligible for the multi-unit discount. The 3 or more self-propelled products must be in the same equipment categories as shown below and included on the same purchase order. Compatible implements sold with such products also qualify for the multi-unit discount, but do not count as a unit. Frontier Equipment is excluded from the Multiple Unit Discount program.

Compact Utility Tractors
Ag Tractors
Ag Combines
Ag Cotton
Ag Sprayers

See discount structure below:

Quantity Additional Discount 3-4 1% 5-6 2% 7-8 3% 9 units or more 4% Open Market
by John Deere
(listed in the
price book)
Allowed: Open-Market items are implements, attachments, accessories, parts and bundles that are not currently on contract, but are requested by the customer to complete the purchase of John Deere equipment awarded on contract.

Items must be clearly labeled on the purchase order as Open Market.

Open Market
by Dealer (not
listed in the
price book)
Allowed: Open-Market items not available from John Deere but offered by the delivering Dealer to complete the purchase of John Deere equipment awarded on contract.

Items must be clearly labeled on the purchase order as Open Market.

Payment and
Remittance
Credit card payments allowed.

Remit to Address:

Deere & Company
Ag & Turf CBD & Government Sales
21748 Network Place
Chicago, IL 60673-1217
Substitutions Not applicable. This is a current price contract. 395

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Trade-In Allowed: Items must be clearly labeled on the purchase order or quote as Trade-In. The agency and the dealer determine the trade-in value.

Price Structure
Product Description Discount off
MSRP
Price Page Date
Compact Utility Tractors 18% Current
Equipment for Compact Utility Tractors 18% Current
Ag Tractors 5050E, 5060E, 5067E, 5075E 14% Current
Ag Tractors 5090E, 5090EL, 5100E 19% Current
Ag Tractors 5000Ms, ENs, GLs, GNs, GVs, MHs, MLs 22% Current Ag Equipment 6000 Series Tractors 24% Current
Ag Equipment 7000-9000 Series Tractor
Excludes Precision Upgrades 24% Current
Ag Equipment – Combine
Excludes Precision Upgrades 22% Current
Ag Equipment – Cotton 22% Current
Ag Equipment – Hay and Forage 22% Current
Ag Equipment – Tillage 22% Current
Ag Equipment – Planting and Seeding
Excludes Performance Upgrades 22% Current
Ag Equipment – Sprayers
Excludes Performance Upgrades 22% Current
Ag Equipment – Material Handling, Rotary Cutters, and Shredders 24% Current 396

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Ag Equipment – Ag Management Solutions (AMS)
Same As
Tractors
Discount
4% If Purchased
w/o Tractor
Current
Frontier Cutting & Mowing 18% Current
Frontier Hay & Forage 18% Current
Frontier Landscape 18% Current
Frontier Livestock 18% Current
Frontier Material Handling 18% Current
Frontier Planting & Seeding 18% Current
Frontier Snow Equipment 18% Current
Frontier Sprayers 18% Current
Frontier Tillage 18% Current

Contract Updates
November 15, 2023 – New contract announced.
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Visalia City Council
Staff Report
Visalia City Council
707 W. Acequia
Visalia, CA 93291
File #: 25-0086 Agenda Date: 4/7/2025 Agenda #: 16.

Agenda Item Wording:

RFB Award & Appropriation of Funds: Authorize the City Manager to enter into a contract with Insituform Technologies, LLC for the Tipton Mineral King Sewer Repair Project in the amount of $1,286,950.00, and authorize the appropriation of $95,000 from the Wastewater Fund (431).

Deadline for Action: 4/7/2025
Submitting Department: Community Development
Contact Name and Phone Number:

Cody McLaughlin, Associate Engineer, [email protected], 713-4595 Dolores Verduzco, Financial Analyst, [email protected], 713-4540 Rebecca Keenan, Senior Civil Engineer, [email protected], 713-4541 Chris Crawford, City Engineer, [email protected], (559) 713-4331 Jason Huckleberry, Engineering & Building Director, [email protected], (559) 713-4495 Department Recommendation:

Staff recommends that the City Council:

1. Authorize the City Manager to enter into a contract with Insituform Technologies, LLC for RFB 23-24-70 for the Tipton Mineral King Sewer Repair Project (4330-7200/CP0377- 999) in the amount of $1,286,950.00.

2. Authorize the appropriation of $95,000 from the Wastewater Fund (431) to this project, CP0377.

Background Discussion:

The California Department of Toxic Substance Control (DTSC) detected traces of tetrachloroethylene (PCE) in Visalia in the early 2000’sand therefore began investigating dry cleaner facilities in the City of Visalia. As a result of the investigation, in 2010, DTSC issued an imminent and substantial endangerment order to Mission Linen Supply located at the corner of Tipton Street and Mineral King Avenue. Further investigation revealed that PCE from the Mission Linen site found its way into the City’ssanitary sewer system. Video of the sewer lines subsequently showed that some of the City’s sewer lines had cracks and other deficiencies that allowed for infiltrated PCE to exude into the surrounding soil.

As ordered by the court, the City is required to repair the respective sewer lines around the site and is responsible for a portion of the cost for soil remediation. Mission Linen itself is responsible for conducting the soil remediation. In regards to the sewer lines, the video shows mostly older vitrified clay pipes (VCP) that exhibit cracks, crushing, sags, and joint failure. There are also adjacent concrete storm drain lines that may be affected.

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File #: 25-0086 Agenda Date: 4/7/2025 Agenda #: 16.

The purpose of this project is to repair sewer lines that were found to be deficient along Mineral King Avenue, Tipton Street, and Santa Fe Street. These sewer lines are located within the contamination plume identified in the Expert Report associated in the matter of Mission Linen Supply v. City of Visalia dated July 2016. That report concluded that contaminants infiltrated from the sewer into the surrounding soil due to the deficiency in the sewer lines. Those contaminants which were a waste/pollutant by-product of Mission Linen’s dry-cleaning operations were discharged directly into the City’s sewer system. The project will also remediate a portion of soil excavated with this project.

Additional soil remediation was needed for the site, aside from what is excavated with the sewer repairs. Mission Linen was responsible for remediating the soil, with the City being financially responsible for half of that endeavor. Both the repair of the sewer and the city’s portion of soil remediation is being done in accordance to court order in compliance with the Department of Toxic Substances Control (DTSC). Mission Linen has been remediating the soil by means of soil vapor wells located along Mineral King Avenue.

In 2020, city staff procured a design consultant for the project and began the design for sewer repair.

The City prepared a package for bid late 2022 and advertised in 2023, unfortunately the bid only generated one bidder that was unable to execute the contract. City staff revisited the bid package and increased the design consultant’sscope of work to provide clearer direction in the construction bid package on dealing with the possible PCE contaminated soil and disposal. An updated bid package was completed in 2024 and advertised for construction. Following the completion of this construction work, all sewer pipes associated with this DTSC investigation and PCE contamination will have been corrected. Mission linen Supply will work toward final soil remediation reporting and coordinate with DTSC for further direction if necessary.

Bidding Process:

The City of Visalia issued a formal Request for Bids (RFB) to solicit construction services for the RFB 23-24-70. On February 4, 2025 city staff received three (3) bids from the following contractors:

No. Contractor Location Total Bid

1. Insituform Technologies LLC Chesterfield, MO $1,286,950.00

2. West Valley Construction San Jose, CA $1,644,350.00

3. JT2 Inc. Visalia, CA $1,768,110.00
The apparent low bidder is Insituform Technologies LLC, Bids have been reviewed, and references have been verified. After review of bids and refence checks staff recommend the contractor can perform the work for the project. The low bidder was within 10% of the engineers’ estimate.

Fiscal Impact:

Bid proposals for construction have come in higher than previously estimated construction costs due to the continuing increase in construction costs. When evaluating bid unit costs to estimated costs, construction costs increases are reflected on each item. Refer to the Project Budget Summary below.

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File #: 25-0086 Agenda Date: 4/7/2025 Agenda #: 16.

Tipton Mineral King Sewer Repair Project
Total Project Budget (431): $1,700,000
Estimated Project Costs:

Design Consultant (Provost & Pritchard)$160,675
Project Management (Staff) $120,000
Sewer Video Inspection Services $14,000
Construction Inspections $20,000
Materials Testing $22,000
Construction Surveying $10,000
Construction Cost $1,286,950
Construction Contingency $160,050
Total Estimated Project Construction Cost$1,793,675
Remaining Balance (Deficit) ($93,675)
Appropriation from Fund (431): $95,000
Due to the above-identified budget deficit, staff recommends the appropriation of a total of $95,000 for the completion of this project.

Prior Council Action:

NA
Recommended Motion (and Alternative Motions if expected):

I move to Authorize the City Manager to enter into a contract with Insituform Technologies, LLC for RFB 23-24-70 for the Tipton Mineral King Sewer Repair Project (4330-7200/CP0377-999) in the amount of $1,286,950.00, and authorize the appropriation of $95,000 from Fund 431.

Environmental Assessment Status:

Categorical Exemption
CEQA Review:

Categorical Exemption: Document #2022-49
Attachments:

Insituform Ownership Disclosure Form
Project Location Map
Draft Bid Contract
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CONTRACT

CITY OF VISALIA

STATE OF CALIFORNIA

This Contract for the construction of the TIPTON-MINERAL KING SEWER REPAIRS Project, is made between the City of Visalia, (hereinafter “ the City”), and Insituform Technologies, LLC, (hereinafter referred to as Contractor) both parties having authority to enter into this Contract do agree to the following:

ARTICLE I - For and in consideration of the payments hereinafter mentioned to be made by the City, and under the conditions expressed in this Contract and Contract Documents (as those terms are defined in City of Visalia Engineering Standard Specifications), in cluding the bonds submitted with this Contract, Contractor agrees at his own cost and expense, to do all the work and furnish all the materials necessary to construct and complete in a good, workmanlike, and substantial manner, the TIPTON-MINERAL KING SEWER REPAIRS Project, as a fully operational and functional fac ility for the intended purpose in accordance with the Contract Documents, and in acco rdance with the reference documents listed in the Contract Documents, which are also made a part hereof.

Said work to be done is shown upon the following plans:

RFB No.: 23-24-70
Project Name: TIPTON-MINERAL KING SEWER REPAIRS
Project No.: 4300-72000-CP0377-999

which said plans are hereby made a part of this contract.

ARTICLE II - Contractor agrees to receive and accep t the following prices as full compensation for furnishing all materials and for doing all the work described in this Contract; also for all loss or d amage arising out of the nature of the work aforesaid, or from the action of the elements, or from any unforeseen difficulties or obstructions which may arise or be encountered in the prosecution of the work until it s acceptance by the City of Visalia and for all risks of every description connected with the work; also for all expenses incurred by or in consequence of the suspe nsion or discontinuance of work and for well and faithfully completing the work, and the whole there of, in the manner and according to the Contract Documents, and requirements of the Engineer under them, to wit:

409
410
411
412
ARTICLE III - Contractor hereby agrees to indemnify and hold City and its officers, agents, employees and assigns, harmless from any liability imposed for injury (as defined by Government code 810.8), whether arising before or after completion of work hereunde r, or in any manner directly or indirectly caused, occasioned or contributed to, or claimed to be caused, occasioned or contributed to, in whole or in part, by reason of any act or omission, including strict lia bility or negligence of Contractor, or of anyone ac ting under Contractor's direction or control or on its b ehalf, in connection with or incident to or arising out of the performance of this contract.

It is the intent of the parties that Contractor will indemnify, defend, and hold harmless City and its officers, agents, employees, and assigns, from any and all claims, demands, costs, suits or actions as set forth above regardless of the existence of passive concurrent negligence, on the part of the City or anyone acting under its direction or control or on its behalf. It is further the intent of the parties that this indemnification required is not intended to relieve City from liability for the active negligence of City, its officers, agency and employees.

The Contractor shall continuously protect City property, including work under construction, from damage, loss, or liability of any kind to persons or property arising in connection with the contract, direct or indirect, including that arising from rainfall, flood waters, and other action of the elements and all acts of t hird parties.

This indemnity and hold harmless provision, insofar as it may be adjudged to be against public policy, shall be void and unenforceable only to the minimum exten t necessary so that the remaining terms of this indemnity and hold harmless provision may be within public policy and enforceable.

In an emergency affecting the safety of life or lim b, work site, or any property, the Contractor is he reby permitted and directed to act at their discretion t o prevent such threatened loss of injury, and in th e event any instructions are given by the City of Visalia i n any emergency, the Contractor shall unconditional ly comply therewith.

With respect to the performance of work under this agreement, the Contractor shall maintain and shall require all of its subcontractors to maintain insurance as described below.

Worker's Compensation insurance with statutory limi ts, and employer's liability insurance with limits of not less than $1,000,000 per accident.

Commercial General Liability insurance with a combi ned single limit of not less than $1,000,000 per occurrence. Such insurance shall include products/completed operations liability, owner's and Contractor's protective, blanket contractual liability, personal injury liability, broad form property damage coverage and explosion, collapse and underground hazard coverage . Such insurance shall (a) name City, its appointed 413
and elected officials, officers, employees and agen ts as insureds; and (b) be primary with respect to any insurance or self-insurance programs maintained by the City; and (c) contain Standard cross liability provisions. Such additional insured endorsement maintained by Contractor and its subcontractors shall not be required to provide coverage for City for the active negligence of City.

Commercial Automobile Liability insurance with a co mbined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles and shall be provided by a business automobile policy.

Contractor shall furnish properly executed certificates of insurance to City prior to commencement of work under this agreement, such certificates shall:

a. Clearly evidence all coverage required above, inclu ding specific evidence of a separate endorsement naming the City as an insured;

b. Indicate whether coverage provided is on a claims made or occurrence basis; and

c. Provide that such insurance shall not be materially changed, terminated, or allowed to expire except on 30-days prior written notice to City’s Purchasing Division, Attention:

Purchasing
707 W. Acequia Avenue
Visalia, CA 93291.

Such insurance shall be maintained from the time work first commences until completion of the work under this Agreement if an occurrence policy form is used . If a claims made policy is used, coverage shall b e maintained during the contract term and for a period extending 5 years beyond the contract date. Contractor shall replace such certificates for policies expiri ng prior to completion of work under this agreement and shall continue to furnish certificates 4 years beyond the contract term, when Contractor has a claims made form(s). If Contractor, for any reason, fails to ma intain insurance coverage which is required pursuan t to this agreement, the same shall be deemed a material breach of contract. City, at its sole option, may terminate this agreement and/or obtain damages from the Contractor resulting from said breach.

Alternatively, City may purchase such required insu rance coverage, and without further notice to Contractor, City may deduct from sums due to Contra ctor any premium costs advanced by City for such insurance.

This insuring provision, insofar as it may be adjudged to be against public policy or in violation of Insurance Code Section 11580.04, shall be void and unenforceable only to the minimum extent necessary so that the remaining terms of the insuring provisions herein may be within public policy and enforceable.

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ARTICLE IV - It is further expressly agreed by and between the City and the Contractor that should there be any conflict between the terms of this instrumen t and the bid or proposal of said Contractor, then this instrument shall control and nothing herein shall b e considered as an acceptance of the said terms of said proposal conflicting with this instrument.

ARTICLE V - Executive Order N-6-22 – Russia Sanctio ns On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. “Economic Sanctions” refers to sanctions imposed by the U.S. government in response to Russia’s actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions . Accordingly, should the State determine Contracto r is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this agreement. The State shall provide Contractor advance written notice of such termination, allowing Contra ctor at least 30 calendar days to provide a written response. Termination shall be at the sole discretion of the State.

IN WITNESS WHEREOF, the parties have executed this agreement as of the date opposite their respective signatures.

CITY OF VISALIA

____________________________ _______
City Manager Date

CONTRACTOR

______________________________________
By: Authorized Agent Date

______________________________________
Print Name, Title
APPROVED AS TO FORM:

____________________________ _______
City Attorney Date

____________________________ _______
Risk Manager Date

____________________________ _______
Project Manager Date

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CONTRACT BOND FORMS

416

CITY OF VISALIA

PAYMENT BOND
(To Accompany Contract)
Bond No. ____________________
WHEREAS, the City of Visalia, has awarded to Contractor ____ _________________________________________ _________________________, hereafter designated as the “Principal”, a contract for the work described as follows:
___________________________________________________ _________________________________________, referred to hereafter as “Contract.”

AND WHEREAS, said Principal is required to furnish a bond in co nnection with said contract, to secure the payment of claims of laborers, mechanics, materialm en and other persons as provided by law.

NOW, THEREFORE , we the undersigned Principal and ________________ _____________________________, referred to as “Surety” are bound unto the City of Visalia in the sum of $____________________________ _______ ________________________________________________ do llars ($ ___________________________), for which payment, we bind ourselves, jointly and severally.

THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal or its subcontractors shall fail to pay any of the persons named in Civil Code Section 9100, or amounts due under the California Unemploym ent Insurance Code with respect to work or labor performed by such claimant, or any amounts required to be deducted, withheld, and paid pursuant to the California Reven ue and Taxation Code for the wages of employees of the Principal and his subcontractors, with respect to such work and labor, that the Surety herein will pay for the same in an amount not exceeding the sum specified in this bond, otherwise the above obligation shall be void. In case suit is brought upon this bond, the surety will pay a reaso nable attorney’s fee to be fixed by the court.

This bond shall inure to the benefit of any of the persons, companies, or corporations, named in Civil Code Section 9100 as to give a right of action to such persons, entities, or their assigns in any suit brought upon this bond.

The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Contract or to the work to be performed under the Contract, or the specifications accompanying the Contract shall in any way affect its obligation s on this bond, and Surety does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract, or to the specified work, or the specifications. Surety hereby waives the provision s of Civil Code Sections 2819 and 2845.

IN WITNESS WHEREOF , We have hereunto executed this instrument on the date indicated below. Persons signing for a corporation or entity hereby represen t that they are doing so pursuant to a grant of authority by the governing body.

_________________________________ _______ ________ _________________________ _______ Name of Principal Date Name of Surety Date

_________________________________ _______________ __________________ Signature for Principal Signature for Surety

_________________________________ _______________ __________________ Printed Name and Title Printed Name and Title

Correspondence or claims relating to this bond
should be sent to the surety at the following
address:
___________________________
___________________________
___________________________

NOTE: Signatures of those executing for the Surety must be properly acknowledged and Surety’s Power of Attorney must be attached.
417

CERTIFICATE OF ACKNOWLEDGEMENT

State of California
County of ________________________________________ SS

On ____________ ___________________ before me ____ _____________________________________________, personally appeared _______________________________ _____________________________________________, who proved to me on the basis of satisfactory evidence to the be the person(s) whose name is/are subscribed to the within instrument and acknowledged to me that he/sh e/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws o f the State of California that the foregoing paragraph is true and correct.

(SEAL) Notary Public
A notary public or other officer completing this ce rtificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or vali dity of that document.
418

CITY OF VISALIA

PERFORMANCE BOND
(To Accompany Contract)
Bond No. ____________________
WHEREAS, the City of Visalia, has awarded to Contractor ____ _________________________________________ _________________________, hereafter designated as the “Principal”, a contract for the work described as follows:
___________________________________________________ __________________________________________, referred to hereafter as “Contract.”

AND WHEREAS, said Principal is required to furnish a bond in co nnection with the above Contract, guaranteeing the faithful performance thereof:

NOW, THEREFORE , we the undersigned Principal and ________________ ______________________________, referred to as “Surety” are held firmly bound to the City of Visalia in the sum of $ _________________ __________ _________________________________________________ d ollars ($ ______________________________), to be paid to said City or its certain attorney, its successors and assigns: for which payment, well and tru ly to be made, we bind ourselves, our heirs, executors and administra tors, successors or assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, t hat if the above bound Principal, its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by and well and truly ke ep and perform the covenants, conditions, and agreements in the Co ntract and any alteration thereof, made as therein provided, on it or their part to be kept and performed within the time and in the manner therein specified, and in all respects according to their intent and meaning, and shall in demnify and save harmless the City of Visalia, its officers and agents, as therein stipulated, then this obligation shall become and be null and void; otherwise it shall be and remain in full force and virtue.

The said Surety, for value received, hereby stipula tes and agrees that no change, extension of time, alteration, or addition to the terms of the Contract or to the work to be performed under the Contract, or the specif ications accompanying the Contract shall in any way affect i ts obligations on this bond, and Surety does hereby waive notice of any such change, extension of time, alteration, or addition to the terms of the Contract, or to the specified work, or the specifications. Surety hereby waives the pr ovisions of Civil Code Sections 2819 and 2845.

IN WITNESS WHEREOF , We have hereunto executed this instrument on the date indicated below. Persons signing for a corporation or entity hereby represen t that they are doing so pursuant to a grant of authority by the governing body.

_________________________________ _______ ________ _________________________ _______ Name of Principal Date Name of Surety Date

_________________________________ _______________ __________________ Signature for Principal Signature for Surety

_________________________________ _______________ __________________ Printed Name and Title Printed Name and Title

Correspondence or claims relating to this bond
should be sent to the surety at the following
address:
___________________________
___________________________
___________________________
___________________________

NOTE: Signatures of those executing for the Surety must be properly acknowledged and Surety’s Power of Attorney must be attached.
419

CERTIFICATE OF ACKNOWLEDGEMENT

State of California
County of ________________________________________ SS

On ____________ ___________________ before me ____ _____________________________________________, personally appeared _______________________________ _____________________________________________, who proved to me on the basis of satisfactory evidence to the be the person(s) whose name is/are subscribed to the within instrument and acknowledged to me that he/sh e/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws o f the State of California that the foregoing paragraph is true and correct.

(SEAL) Notary Public
A notary public or other officer completing this ce rtificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or vali dity of that document.
420

CITY OF VISALIA

MAINTENANCE BOND
(To Accompany Contract)
Bond No. ____________________

WHEREAS, The City of Visalia, has awarded to Contractor ____ ________________________________________ _________________________, hereafter designated as the “Principal”, a contract for the work described as follows:
___________________________________________________ __________________________________________, referred to hereafter as “Contract.”

AND WHEREAS, said Principal is required to furnish a bond in co nnection with said contract, guaranteeing the correction of deficiencies during the specified mai ntenance period of one (1) year from the date the notice of completion for work performed under said contract h as been recorded or the date the work was completed if no notice of completion is recorded:

NOW, THEREFORE , we the undersigned Principal and ________________ ______________________________, referred to as “Surety” are held firmly bound to the City of Visalia in the sum of $_________________ __________ __________________________________________________ dollars ($ _____________________________), to be paid to City of Visalia or its certain attorney, its successors and assigns: for which payment, well and truly to be made, we bind ourselves, our heirs, executors and a dministrators, successors or assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH, the named Principal has made specific guarantees to the City concerning the work, labor and materials furni shed for the construction of said improvements as stated above.

If Principal complies with these guarantees for a period of one (1) year from the date of the notice of completion for work performed under said contract has been recorde d or the date the work was completed if no notice of completion is recorded, then this obligation shall be null and void. If City notifies Surety that Principal has not met its guarantee, then Surety shall indemnify City for losses incurred up to the amount listed above. The City shall give written notice to the Principal during the one (1) year period specified in this obligation of any def ect of the guaranteed work that becomes apparent. This obligat ion shall remain in full force and effect until any defect identified in said written notice are repaired by the Principal and accepted in writing by the City.

The said Surety, for value received, hereby stipula tes and agrees that no change, alteration, or addition to the terms of the Contract or to the work to be performed unde r the Contract, or the specifications accompanying the Contract shall in any way affect its obligations on this bond, and Surety does hereby waive notice of any such change, alteration, or addition to the terms of the Contrac t, or to the specified work, or the specifications. Surety hereby waives the provisions of Civil Code Sections 2819 a nd 2845.

IN WITNESS WHEREOF , We have hereunto executed this instrument on the date indicated below. Persons signing for a corporation or entity hereby represen t that they are doing so pursuant to a grant of authority by the governing body.

_________________________________ _______ ________ _________________________ _______ Name of Principal Date Name of Surety Date

_________________________________ _______________ __________________ Signature for Principal Signature for Surety

_________________________________ _______________ __________________ Printed Name and Title Printed Name and Title

421
Correspondence or claims relating to this bond
should be sent to the surety at the following
address:
___________________________
___________________________
___________________________
___________________________

NOTE: Signatures of those executing for the Surety must be properly acknowledged and Surety’s Power of Attorney must be attached.
422

CERTIFICATE OF ACKNOWLEDGEMENT

State of California
County of ________________________________________ SS

On ____________ ___________________ before me ____ _____________________________________________, personally appeared _______________________________ _____________________________________________, who proved to me on the basis of satisfactory evidence to the be the person(s) whose name is/are subscribed to the within instrument and acknowledged to me that he/sh e/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws o f the State of California that the foregoing paragraph is true and correct.

(SEAL) Notary Public

A notary public or other officer completing this ce rtificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or vali dity of that document.
423
Visalia City Council
Staff Report
Visalia City Council
707 W. Acequia
Visalia, CA 93291
File #: 25-0100 Agenda Date: 4/7/2025 Agenda #: 17.

Agenda Item Wording:

Award a Contract for Biosolids Hauling - Authorize the City Manager to award an annual contract to Mike Clarke Trucking Services for the hauling of biosolids from the Visalia Water Reclamation Facility not to exceed $170,000 per year, with an option to renew annually up to four (4) additional one-year terms, totaling no more than $850,000 over the life of the contract.

Deadline for Action: 4/7/2025
Submitting Department: Public Works
Contact Name and Phone Number: Rehana Cale, Project Manager, 559-713-4176, [email protected] <mailto:[email protected]> Ben Litwack, Public Works Manager, 559-713-4671, [email protected] <mailto:[email protected]>
Department Recommendation:

Staff recommends that Council authorize the City Manager to enter into an annual contract with Mike Clarke Trucking Services LLC of Porterville, CA for the hauling of biosolids from the Visalia Water Reclamation Facility (WRF) per RFB 23-24-57 not to exceed $170,000 per year, with an option to renew annually up to four (4) additional one-year terms, totaling no more than $850,000 over the life of the contract.

Background Discussion:

Each year, the Visalia Water Reclamation Facility removes the annual stockpile of treated biosolids in accordance with the Waste Discharge Requirements (WDR) issued by the State Water Resources Control Board. Until recently, this work was performed by a third party that removed the biosolids from the WRF and transported them to another location for beneficial reuse. However, beneficial reuse has proven to be a significantly more expensive option, so over the past year staff has found an option to utilize the Tulare County Landfill for disposal until either a more affordable beneficial reuse option is available, or the landfill is no longer a viable option. With this alternative method of disposal, the City has utilized a trucking contractor for the transport of this material until this service could be formally bid out in accordance with the City’s Purchasing Policy. The biosolids stockpile for 2024 is estimated to be 9,000 tons and will take approximately 45 total days to remove, given the Tulare County Landfill’s current limitation to accept no more than 200 tons of biosolids per day, 3 days per week.

On October 22, 2024, 3 bids were received for RFB 23-24-57 and were opened publicly. The bids received are as follows:

Bidder’s Name Location Total Bid Amount
Romanazzi Trucking Exeter, CA $3,240/day
Mike Clark Trucking Services Porterville, CA $3,240/day WTB Visalia, CA $3,600/day
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File #: 25-0100 Agenda Date: 4/7/2025 Agenda #: 17.

Bidder’s Name Location Total Bid Amount
Romanazzi Trucking Exeter, CA $3,240/day
Mike Clark Trucking Services Porterville, CA $3,240/day WTB Visalia, CA $3,600/day
Romanazzi Trucking and Mike Clark Trucking Services tied for the lowest bid.

On October 31, 2024, in accordance with the City’s Purchasing Policy, a tie-breaking coin-toss was held, and Romanazzi Trucking was the winner of the bid.

On March 24, 2025, Romanazzi Trucking notified the City of Visalia of their inability to meet administrative requirements outlined in the bid, which has resulted staff to move to the next bidder.

Mike Clarke Trucking Services LLC was contacted by the City of Visalia and agreed to honor their bid.

The total estimated cost represents the cost per day and is calculated as follows:

Transport Biosolids from
Visalia WRF to Tulare
County Landfill per
specifications of RFB-23-
24-57
A Hourly Rate Per
Truck
X B Estimated # of Trucks
Required Per Day
X C Estimated Hours
Per Day
= D Cost Per Day
$ _135____ hr.
(per hour, per
truck)
X 3 X 8 hrs. = $ _3240________
Total bid price
It’s important to emphasize that the hourly rate (Column A) is the most relevant factor in this due to the varying availability of trucks and the capacity of the landfill to accept biosolids from the Visalia WRF, with a daily limit of 200 tons. Operational conditions may lead to deviations from these daily estimates, but invoicing will be based on the bid hourly rate per truck. Mike Clarke Trucking Services LLC has provided an hourly rate of $135 per truck, resulting in a daily rate of $3,240 for the estimated (3) trucks per day. The annual contract not-to-exceed amount of $170,000 was based on transporting approximately 9,000 tons of biosolids, assuming a 45-day transport period (9,000 tons ÷ 200 tons/day = 45 days) at $3,240 per day. Staff is requesting a total of $170,000 to cover the cost of removal and any minor contingencies.

Fiscal Impact:

These hauling and disposal costs are budgeted annually within the Biosolids division 4336-55700, and sufficient funds are available to cover these expenses.

Prior Council Action: On November 18, 2024, Council awarded the Contract to Romanazzi Trucking, who won the tie-breaking coin toss against Mike Clark Trucking Services LLC for this RFB- 23-24-57.

Other: On March 24, 2025, Romanazzi Trucking failed to obtain an up-to-date Certificate of Insurance, thus voiding their contract.

Alternatives: N/A
Recommended Motion (and Alternative Motions if expected):

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File #: 25-0100 Agenda Date: 4/7/2025 Agenda #: 17.

I move to authorize the City Manager to award an annual contract to Mike Clarke Trucking Services LLC of Porterville, CA for the hauling of biosolids from the Visalia Water Reclamation Facility (WRF) per RFB 23-24-57 not to exceed $170,000 per year, with an option to renew annually up to four (4) additional one-year terms, totaling no more than $850,000 over the life of the contract.

Environmental Assessment Status: N/A
CEQA Review: N/A
Attachments:

1.) RFB 24-25-57

2.) RFB 24-25-57 Bid Summary

3.) RFB-23-24-57 Mike Clarke Trucking Services LLC LLC Bid Packet with Contract and Disclosures Visalia City Council Printed on 4/4/2025Page 3 of 3
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RFB NO. 23-24-57

TRANSPORTATION OF BIOSOLIDS TO TULARE COUNTY LANDFILL
Page i

CITY OF VISALIA, CA
REQUEST FOR BID (“RFB”) NO. 23-24-57

ANNUAL CONTRACT FOR

TRANSPORTATION OF BIOSOLIDS TO

TULARE COUNTY LANDFILL

BIDS DUE NO LATER THAN 2:00 P.M. on TUESDAY, OCTOBER 22, 2024

The City of Visalia expressly reserves the right to modify, or withdraw from, the process initiated and described herein. No rights shall be vested in any party, individual or entity by virtue of its preparation to participate in, or its participation in, such process. The City expressly reserves the right to modify, for any reason, the schedule and any provision contained herein. The City reserves to itself the selection of winning respondent(s), if any, in the exercise of its sole discretion. No binding commitment shall arise on the part of the City to any respondent under this Request for Bid until and unless the parties sign documents of agreement that become effective in accordance with their terms. Responses to this RFB, however, shall be held fir m by Respondent for at least ninety (90) days.

PUBLIC WORKS CONTRACT: This is a Public Works Maintenance Contract, therefore it is subject to registration with the Department of Industrial Relations, payment of prevailing wages, submission of certified payroll records to the Labor Commissioner and other requirements listed in the City of Visalia Labor Compliance Manual (attached). All Bidders, Contractors and Subcontractors must be registered with the Department of Industrial Relations.

Ad Dates: 9/24/24 & 10/1/24
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RFB NO. 23-24-57

TRANSPORTATION OF BIOSOLIDS TO THE TULARE COUNTY LANDFILL (VISALIA WATER RECLAMATION FACILITY)
Page ii

TABLE OF CONTENTS

I. DEFINITIONS ................................ ................................ ................................ ...... 3

II. INTRODUCTION ................................ ................................ ................................ .. 3

III. DEPARTMENT OF INDUSTRIAL RELATIONS REQUIREMENTS ............................. 4

IV. INSTRUCTIONS ................................ ................................ ................................ ... 7

V. SCOPE OF SERVICES/PROJECT ................................ ................................ ......... 8

VI. PRE-BID AND PRECONSTRUCTION MEETINGS ................................ ................... 9

VII. BID OPENING AND CONFIDENTIALITY ................................ ............................... 10

VIII. AWARD ................................ ................................ ................................ .............. 10

IX. PROTESTS/APPEALS ................................ ................................ ......................... 11

X. SPECIAL CONDITIONS ................................ ................................ ....................... 11

XI. GENERAL CONDITIONS ................................ ................................ ..................... 14

XII. POST AWARD RESPONSIBILITIES ................................ ................................ ...... 17

EXHIBITS
A. BID FORM

B. CERTIFICATIONS, AFFIDAVITS, ASSURANCES, STATEMENTS, WAIVERS, AND

QUESTIONNAIRES WHICH MUST ACCOMPANY BID FORM

B-1. Bidder’s Statement on Previous Contracts Subject to EEO Clauses B-2. Equal Employment Opportunity Compliance Certificate B-3. Certificate of Non-segregated Facilities
B-4. Non-Collusion Affidavit
B-5. Worker’s Compensation Insurance Certificate
B-6. Americans with Disabilities Act Compliance Certificate B-7. Disclosures Form
B-8. Drug-Free Workplace
B-9. Iran Contracting Act

C. SAMPLE PROJECT AGREEMENT WITH ATTACHMENTS
ATTACHMENT 1 - GENERAL CONTRACT PROVISIONS
ATTACHMENT 2 - INSURANCE REQUIREMENTS

D. STATE OF CALIFORNIA PREVAILING WAGE RATES

E. CITY OF VISALIA LABOR COMPLIANCE MANUAL

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RFB NO. 23-24-57

TRANSPORTATION OF BIOSOLIDS TO THE TULARE COUNTY LANDFILL (VISALIA WATER RECLAMATION FACILITY)