City of Visalia & Developer
Reimbursement Agreement
1 CITY OF VISALIA
REIMBURSEMENT AGREEMENT
FOR PRIVATELY CONSTRUCTED PUBLIC FACILITIES INCLUDED IN THE CITY’S IMPACT FEE PROGRAMS
This Agreement, dated as of ___________________, is entered into by and between the City of Visalia, a municipal corporation (the “City ”), and Visalia Parkway Partners, LLC, a California limited liability company, (the “Developer”).
RECITALS:
WHEREAS, Chapter 16.44 of the City of Visalia Municipal Code (the "Code") established development fees and special funds as part of the C ity’s Transportation Fee Program (the “Transportation Fee Program”); and
WHEREAS, Section 16.44.150 of the City of Visalia M unicipal Code authorizes the City to enter into reimbursement agreements for the cons truction of planned transportation facilities designated in the Transportation Fee Program upon application of property developers; and WHEREAS, City and Developer, as a condition for app roval of Parcel Map No. 2019-13 and Conditional Use Permit No. 2019-31, pertaining to real property identified therein (the property and entitlements so described hereafter referred to as the Project”) have entered into a Project Improvements Agreement that sets forth Developer’s obligations regarding the dedication of right of way and construction of planned transportation facilities and other public improvements, according to improvement plans titled Offsite Devel opment Plans for Visalia Parkway (Phase 2) and approved by the City on December 10, 2023 (here after collectively referred to as the “Facilities”); and
WHEREAS, City and Developer have agreed that the Fa cilities shall be built in two separate phases and have by a separate reimbursemen t agreement agreed to terms over reimbursement for Facilities that were constructed with the first phase for the Project; and WHEREAS, this reimbursement agreement is intended t o set forth the terms of reimbursement between City and Developer for the second phase and final phase of the Facilities, which will widen a portion of Visalia Parkway to reach the Project; and WHEREAS, the second phase of the Project consists o f road construction of a planned transportation facility, specifically widening a po rtion of Visalia Parkway, the majority of which is eligible for reimbursement under the Transportation Fee Program, given these specific circumstances the City and Developer have agreed to the reimbursement terms specified in this Agreement, allowing the Developer to request reimbursement for the eligible Facilities as the work progresses and before it is completed.
WHEREAS, City and Developer desire to set forth their mutual understandings regarding the manner in which the City shall reimburse Develo per for the Facilities that are transportation facilities and the related right-of-way under the C ity’s Transportation Fee Program requirements but have been required as conditions of approval for Developer’s private development project and City maintains no proprietary interest in the overa ll project except for these specified public improvements.
City of Visalia & Developer
Reimbursement Agreement
2 NOW, THEREFORE, in consideration of the mutual prom ises contained herein, the City and the Developer hereby agree as follows:
Section 1. Construction of Facilities
Developer shall complete construction of the Facilities in accordance with the terms of the Project Improvements Agreement.
Section 2. Reimbursement Amounts
The City shall reimburse, through cash payments as provided herein, the Developer for the planned Facilities based on the schedule of costs and land values contained in the Traffic Impact Fee Update Nexus Study City of Visalia, dated March 16, 2015, as adjusted by the Parties through the date of this Agreement and attached hereto as Exhibit 1 (“Programmed Costs”), or the items that the City will reimburse the Developer for and lists the applicable unit costs and right of way values. A diagram showing the location of these public improvements is attached as Exhibit 2.
If any items are not listed in the schedule of costs, then the City and Developer must agree to an acceptable unit cost prior to this Agreement being signed. Changes or variations in the Programmed Costs may be requested by the Developer pursuant to Section 3 of this Agreement.
Section 3. Adjustment to Programmed Costs
The Developer may request the City to adjust the Pr ogrammed Costs. In order to request an adjustment to the Programmed Costs, the Developer must provide the following:
(1) Copies of the original contract with the contra ctor and any change orders that have been agreed to by the Developer, contractor, and th e City. The portion of each change order associated with the Facilities must be itemized separately;
(2) Copies of all invoices, with unconditional lie n releases, submitted by the contractor;
(3) Copies of all checks issued by the Developer w ith related invoices indicated; and
(4) A summary tabulation of all contractor invoice s and Developer payments.
If the actual construction costs for the Facilities exceeds the Programmed Costs for such Facilities, the City Engineer shall review the item s described above and determine if the Programmed Costs that will be credited/reimbursed to the Developer should be increased above the amount shown in Exhibit 1 or Exhibit 2 to fairl y reflect change orders or other changed circumstances. The City Engineer shall determine in his/her reasonable discretion how much of the actual construction costs should be included in an increase to the Programmed Costs, and if acceptable, the parties shall execute an amendment to this Agreement setting forth the adjusted Programmed Cost.
Section 4. Right to Reimbursement
Developer shall be reimbursed the Programmed Cost i n the manner as set forth in Section 5 below. Reimbursements payments by the City will not be made until a reimbursement request is submitted to the City. The Developer must apply for reimbursement within four (4) years after the City has accepted the Facilities. As noted in Sect ion 5, this Agreement allows the Developer to
City of Visalia & Developer
Reimbursement Agreement
3 seek reimbursement during construction of the Facil ities. The Developer waives all right to reimbursement from the City if they do not request reimbursement within this four-year limitation; and
Section 5. Reimbursement Method
Developer shall be reimbursed the Programmed Costs, without interest, in the following manner(s):
5.1 Cash Reimbursement from Development Fees Collected City Wide . Developer may submit reimbursement requests monthly as the work o n the Facilities progresses. The reimbursement requests will be based on the amount of the work completed on the Facilities, minus a retention amount of five percent (5%) which will be withheld from each progress payments to Developer from City. Developer must pro vide City copies of invoices from subcontractors, conditional releases of any liens f rom contractors, and calculation of percentage of work completed on Facilities, to the reasonable satisfaction of the City on a monthly basis.
Developer acknowledges that work on improvements that are not subject to reimbursement by the City will not be reimbursed and that submitted invoices will need to separately identify items that are reimbursable under this Agreement and any items that are not reimbursable.
City shall review the invoices from Developer and has ten (10) calendar days from the date the invoices are submitted to dispute any charges by Developer. If the City does not dispute an item, then it will be considered approved by the City. Disputed amounts shall be reviewed between the City and the Developer and shall not be paid until the City is satisfied that only work on the reimbursable Programmed Costs is being sought for recovery.
Payment of all undisputed reimbursement amounts wil l be made by City within thirty (30) calendar days from approval.
If the progress payments exceed the Programmed Cost s, then Developer must request an adjustment to the Programmed Costs under Section 3 of this Agreement prior to any additional reimbursement by the City.
The retention amount may be requested by Developer after the Facilities have been completed, formally accepted by City, and thirty-fi ve (35) days have passed from a Notice of Completion having been filed for and no claim of nonpayment has been filed by any workers or material suppliers. If any claims have been filed, then City may withhold the reimbursement attributable to such nonpayment claim until the claim is resolved.
Developer acknowledges that performance and payment bonds in the amount of one hundred percent (100%) of the estimated Facilities cost have been issued and accepted by the City and a one-year maintenance/warranty bond o n the Facilities will be provided in a form acceptable to City under the Project Improveme nts Agreement, and the term of this warranty bond will not begin until the Facilities h ave been completed and accepted by the City.
City of Visalia & Developer
Reimbursement Agreement
4 Section 6. Transfer of Reimbursement Rights
Rights to cash payment reimbursements granted to De veloper pursuant to this Agreement may be transferred to other owners, builders, or developers only with the written consent of City. The notice must be signed by the Developer and the City, and an executed copy of the form shall be kept on file at the City.
Section 7. Limited City Obligation
The obligations arising from this Agreement are neither a debt of the City nor a legal or equitable pledge, charge, lien, or encumbrance upon any of its property or upon any of its income, receipts, or revenues, except the fees collected for the Facilities. Neither the General Fund nor any other fund of the City, except the applicable fund(s) ass ociated with the Transportation Impact Fee Program, shall be liable for the payment of any obl igations arising from this Agreement. The credit or taxing power of the City is not pledged for the payment of any obligation arising from this Agreement. Developer shall not compel the forfeiture of any of the City’s property to satisfy any obligations arising from this Agreement.
Section 8. Liens, Claims, and Encumbrances
Prior to final acceptance and issuance of Notice of Completion for any Facilities by the City, the constructing Developer shall provide a written guarantee and assurance to the City that there are no liens, claims, or encumbrances on those Faciliti es, together with unconditional final releases from all contractors and material suppliers, and with copies of invoices and corresponding checks issued by the Developer for all items for which reimbursement is requested under this Agreement for the Facilities. Notwithstanding any other prov ision or term of this Agreement, the City shall have no obligation to make any reimbursement paymen ts until the constructing Developer has cleared any and all liens, claims and encumbrances from the Improvements and provided the required documentation, guarantee and assurance in writing, to the satisfaction of the City.
Section 9. No Third Party Beneficiary
City does not assume any liability, duty or obligat ion to Developer’s contractors, subcontractors or agents by execution or performance of this Agree ment and no contractors, subcontractors, agents or any parties are third party beneficiaries of this Agreement.
Section 10. Attorney’s Fee
If any suit, action or proceeding in law or equity is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to reasonable costs and attorneys’ fees.
Section 11. Notices
Any notices, requests, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be dee med to have been duly given on the date of service if served personally (FedEx and similar ser vices, each of which is hereinafter called an “Express Courier,” shall be considered to be personal service) or by telephone facsimile or other electronic transmission (provided that the sender o f a telephone facsimile or other electronic transmission has received confirmation of successful transmission by the sending fax machine), and upon receipt, if mailed to the party to whom notice is to be given, by first-class mail, registered or certified, postage prepaid, return receipt requested, and properly addressed as follows:
City of Visalia & Developer
Reimbursement Agreement
5 City: With a copy to:
City of Visalia City of Visalia
Community Development Department Finance Departmen t
315 E. Acequia Ave. 707 W. Acequia Ave.
Visalia, CA 93291 Visalia, CA 93291
Attn: City Engineer Attn: Finance Administrator
Developer:
Visalia Parkway Partners, LLC
405 N. Palm Avenue
Fresno, CA 93701
Attn: James Shehadey
Either party may change its mailing address at any time by giving written notice of such changes to the other party in the manner provided herein.
Section 12. Term
The term of this Agreement shall start on the day and year duly executed by all parties and shall remain in effect until all the terms and conditions contained in this Agreement have been satisfied.
Section 13. Severability
If any portion of this Agreement is declared by a c ourt of competent jurisdiction to be invalid or unenforceable, such portion shall be deemed severed from this Agreement and the remaining parts shall remain in full effect as though such invalid or unenforceable provision had not been a part of this Agreement.
Section 14. Binding on Successors and Assigns
Each and every provision of this Agreement shall be binding upon and shall inure to the benefit of the respective successors and assigns of the par ties hereto, in the same manner as if such parties had been expressly named herein.
Section 15 . Governing Law; Venue
This Agreement is made under, and shall in all resp ects be interpreted, enforced, and governed by, the laws of the State of California. In the ev ent of a dispute concerning the terms of this Agreement, the venue for any legal action shall be with the appropriate court in the County of Tulare, State of California.
Section 16. Exhibits
The Exhibits attached hereto are hereby incorporated herein by this reference.
Section 17. Entire Agreement
This Agreement contains the entire agreement betwee n the parties with respect to the matters contained herein and may be amended only by subsequ ent written agreement signed by all parties.
Section 18 . Compliance with State Law.
Developer is aware of the requirements of California Labor Code Section 1720, et seq., 1770, et. seq., and California Code of Regulations, Title 8, Section 1600, et seq., (“Prevailing Wage Laws”),
City of Visalia & Developer
Reimbursement Agreement
6 which require the payment of prevailing wage rates and the performance of other requirements for work considered “public works” as that term is defined under Prevailing Wage Laws. Developer agrees that it shall comply with Prevailing Wage Laws and it is Developer’s sole responsibility to confirm whether Prevailing Wage Laws are applicable . City shall provide Developer with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement upon request by the Developer. Developer agrees to hold the City harmless and to indemnify and defend the City, with legal counsel reasonably acceptable to City, from all claims arising from the potential application of Prevailing Wage Laws under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and the year first written above.
CITY OF VISALIA, VISALIA PARKWAY PARTNERS, LLC,
A municipal corporation a California limited li ability company
Leslie Caviglia James L. Shehadey, Manager Date
City Manager/City Clerk Date
ATTEST:
Deputy City Clerk Date
APPROVED AS TO FORM:
City Attorney Date
EXHIBT 1
City of Visalia & Developer
Reimbursement Agreement
7 EXHIBT 2
City of Visalia & Developer
Reimbursement Agreement Page 8