The City shall include in its Project bid package, at its sole cost and expense, the construction/ installation of items (1), (2), and (3). CVWD shall be responsible for the plans and design for items (1), (2), and (3). The Relocation Work shall be completed in accordance with CVWD's design criteria and standards, including but not limited to, CVWD's Development Design Manual. The City shall cause the contractor selected by the City to complete the Relocation Work in accordance with CVWD’s approved plans and standards.
CVWD shall be solely responsible for the cost of items (1), (2), and (3). CVWD forces shall be solely responsible for performing necessary associated tie-in connections and switch over s to the existing water mains and service lines and for the cost of performing said work.
The City and CVWD shall agree to enter into an Amendment to this Reimbursement Agreement for any changes in the scope of work or additional work . The City shall submit a written request for a change order to CVWD prior to City’s contractor performing the work indicating the amount for the change order. CVWD shall reimburse the City for the additional work. The City’s selected contractor shall not proceed with the additional work until an Amendment has been executed by the City and CVWD .
The City shall submit all change orders, Request for Information (RFIs), and Submittals for review and approval by CVWD prior to performing the work.
CVWD shall have the right to inspect the Relocation Work and enforce the Plans and Standards for the Relocation Work, including requiring that all unacceptable material, workmanship and/or installation be repaired, replaced, or corrected by the contractor selected by the City. Upon completion of the Project, CVWD shall have the right to complete a final inspection of the Relocation Work and provide notice to the City either confirming that the Relocation Work is complete or setting forth a punch list of items that need to be completed or corrected.
CVWD shall receive the same benefit as the City in its contract with the contractor selected by the City as to insurance, indemnities, bonds, warranties, etc., as such applies to the Relocation Work.
Upon completion and acceptance of the Relocation Work, CVWD shall remit to the City the sum of _________________________________________________ ______ ($________________) in full payment for the construction of the new 8 -inch diameter ductile iron zinc coated water main and associated appurtenances.
COACHELLA VALLEY WATER DISTRICT,
a public agency of the State of California
By:
J. M. Barrett
General Manager
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Attachment: Reimbursement Agreement with CVWD (4103 : Via De Anza Street Improvements Project - Phase III Reimbursement Agreement
Charlie McClendon
City of Cathedral City
February 13, 2024
CITY HAS READ THE FOREGOING LETTER AND ACCEPTS THE TERMS SET FORTH THEREIN.
CITY OF CATHEDRAL CITY,
a municipal corporation
By:
Name:
Its:
Enclosure/1/as
cc: (All with enclosure)
Armando Garcia Baldizzone, P.E,
City Engineer
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
John A. Corella, P.E.
Director of Engineering/ Public Works
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Andres Perez
Assistant Engineer
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
AH: al\Eng\DW\2024\Jan\Cathedral City Reimbursement Agmt Via De Anza – Phase 3.doc File: 0437.1, 0001.3, 1150.13, 0426.1521
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Attachment: Reimbursement Agreement with CVWD (4103 : Via De Anza Street Improvements Project - Phase III Reimbursement Agreement AGENDA
STAFF REPORT
STEVE ROBBINS
ADMINISTRATION BUILDING
75515 Hovley Lane East
Palm Desert, CA 92211
CVWD’s COACHELLA CAMPUS
51501 Tyler Street
Coachella, CA 92236
www.cvwd.org
Agenda Number: B Section Name: ACTION CALENDAR
File ID: 0426.1521, 0426 Project ID: DW2401
MEETING DATE: January 9, 2024
SUBJECT: Authorize the General Manager to execute a Reimbursement Agreement with the City of Cathedral City for Construction of the Via De Anza Water Main Replacement - Phase 3 Project in the amount of $450,000, and approve additional expenditures for a total request of $588,000
TO: BOARD OF DIRECTORS
FROM: ENGINEERING/DOMESTIC WATER/GENERAL DISTRICT, CARRIE OLIPHANT
GENERAL MANAGER
RECOMMENDATION:
RECOMMENDATION:
Authorize the General Manager to execute a Reimbursement Agreement (Agreement) with the City of Cathedral City (City) for the Via De Anza Water Main Replacement - Phase 3 Project (Project) located along Via De Anza between Olancha Road and Ortega Road and Arrowhead Road from Via De Anza to the east end of the Cul- de-Sac of Arrowhead Road with an estimated construction cost of $450,000.
It is also recommended that the Board authorize the following expenditures in the amount of $138,000:
· Project Management and Engineering - $25,000
· CVWD Inspection - $25,000
· CVWD Forces (tie-in connections and switch over) - $60,000 · Contingency (5%) - $28,000
The total cost of this request is $ 588,000.
BUDGET IMPACT:
The total cost of the Via De Anza Water Main Replacement - Phase 3 Project is estimated at $588,000. If the Project (DW2401) and Agreement is approved, CVWD will be responsible to reimburse the City the actual construction cost to replace this portion of pipeline as part of the City‘s street improvement project. The Project is a multi-year construction project that is included in the Domestic Water Fund Fiscal Year (FY) 2023-24 Capital Improvement Budget for Phase 2 (DW2303) in the amount of $520,000 and included in FY 2024-25 for Phase 3 (DW2401) in the amount of $600,000. Since the City is ready to bid the Project, funds for FY 2023-24 would be
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Attachment: CVWD Staff Report - Reimbursement Agreement (4103 : Via De Anza Street Improvements Project - Phase III Reimbursement COACHELLA VALLEY WATER DISTRICT –AGENDA REPORT SUBMITTAL 2 3
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used in lieu of FY 2024-25.
CVWD completed construction of the Via De Anza Water Main Replacement - Phase 2 Project with a remaining budget of $238,000 in FY 2023-24. A budget amendment in the amount $238,000 from the Via De Anza Water Main Replacement-Phase 2 project (DW2303) and $350,000 from Well No. 4529-1 Pumping Plant project (DW2305) is being requested to cover the estimated costs that will be incurred this FY. Therefore, there will be no adverse impact to the Domestic Water Fund Fiscal Year 2023-2024 Capital Improvement Budget.
PROCUREMENT METHOD:
X Other
If other, please explain: The Project will be publicly advertised for bids by Cathedral City as part of the City’s street improvement work in this area. CVWD will have the opportunity to review the City’s bids and confirm the cost for CVWD’s portion of work. Upon satisfactory completion of CVWD's portion of the work, CVWD will reimburse the City for the actual construction cost.
BACKGROUND
The purpose of this project is to replace approximately 870 linear feet of existing, old 6-inch diameter domestic water main with a new 8-inch diameter ductile iron domestic water main and all necessary appurtenances within Via De Anza and Arrowhead Road as part of the City’s Phase 3 street improvement project since the proposed street improvements will directly conflict with CVWD’s existing pipeline.
To ensure that the City‘s Project can move forward and be properly coordinated, it is recommended to include the replacement of the waterline as part of the City’s project. CVWD and the City have executed a Reimbursement Agreement for Phase 2 and would like to do the same for Phase 3, whereby CVWD’s portion of the work would be performed by the City’s contractor and CVWD would reimburse the City the actual cost for the waterline replacement. The City staff is supportive of this approach.
The key components of the Reimbursement Agreement are described below.
CVWD shall:
· Be responsible for the engineering design for CVWD’s domestic water pipeline and all associated portions of the project in accordance with CVWD’s design criteria and standards at CVWD’s expense; · Review and approve the design drawings;
· Perform inspection of the domestic water pipeline work at CVWD’s expense; · Perform tie-in connections and switch-over the water services to the new water main at CVWD’s expense; · Receive the same benefit as the City in its Contract with the Project Contractor as to insurance, indemnities, bonds, warranties, etc., as such applies to CVWD’s portion of the project; · Upon satisfactory completion, CVWD shall reimburse the City for the actual construction cost.
City shall:
· Include CVWD’s domestic water main replacement work in the City’s street improvement bid documents and publicly advertise it for bids;
· Authorize its Contractor to construct CVWD’s domestic water pipeline and all associated portions of the project per the approved plans;
. Agree to enter into an Amendment to this Reimbursement Agreement for any changes in the scope of work or additional work and The City’s selected contractor shall not proceed with the additional work until an Amendment has been executed by the City and CVWD.
PRIOR BOARD ACTION:
On December 13, 2022, the Board authorized the General Manager to Execute a Reimbursement Agreement with the City of Cathedral City for Construction of the Via De Anza Water Main Replacement - Phase 2 Project.
DISTRICT STRATEGIC PLAN GOAL(S)/OBJECTIVES(S):
Approval of the Reimbursement Agreement with the City of Cathedral City for Construction of the Via De Anza
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Attachment: CVWD Staff Report - Reimbursement Agreement (4103 : Via De Anza Street Improvements Project - Phase III Reimbursement COACHELLA VALLEY WATER DISTRICT –AGENDA REPORT SUBMITTAL 2 3
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Water Main Replacement - Phase 3 Project aligns with the CVWD core value of Infrastructure Investment and Management.
ENVIRONMENTAL IMPACT:
This is not a project as defined by CEQA; therefore, approval does not require any CEQA action.
PUBLIC NOTICE REQUIRED
N/A
LEGAL REVIEW
N/A
ATTACHMENTS
Att 1 – Project Map
Att 2 – Draft Reimbursement Agreement
Att 3 – Budget Amendment
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Attachment: CVWD Staff Report - Reimbursement Agreement (4103 : Via De Anza Street Improvements Project - Phase III Reimbursement
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Staff Report
City Council
Item No. 6.E
Meeting Date: February 28, 2024
From: Kevin Biersack, Financial Services Director
Title: Statewide Community Infrastructure Program (SCIP) Update
City Council
RECOMMENDATION:
To approve amending Resolution 2015-17 updating the City of Cathedral City's participation in the Statewide Community Infrastructure Program (SCIP) to allow for both an Assessment District and a Community Facilities District
BACKGROUND:
California Statewide Communities Development Authority (CSCDA) is a joint powers authority sponsored by the League of California Cities (the “League of Cities”) and the California State Association of Counties (“CSAC”). Membership in CSCDA is open to every California City, County and local agency. Currently, CSCDA has 532 member agencies, including the City of Cathedral City (the “City”).
SCIP financing is available for development projects (“Projects”) situated within cities or counties which have elected to become SCIP participants (each, a “Local Agency”).
Eligibility to become a Local Agency requires only (a) membership in the Authority, and (b) adoption of a resolution making the election (the “SCIP Resolution”).
Participation in SCIP entails the submission of an application (an “Application”) by the property owner (the “Applicant”) of a Project for which development entitlements either have been obtained or are being obtained from a Local Agency. For projects determined to be qualified, SCIP provides non - recourse financing of either (a) eligible development impact fees payable to the Local Agency (the “Fees”) or (b) eligible public capital improvements (the “Improvements”) or both. Under certain circumstances, to be determined on a case -by-case basis, development impact fees payable to local agencies other than the Local Agency can be financed.
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SCIP was instituted by CSCDA to allow owners of property in participating cities and counties to finance the development impact fees that would be payable by property owners upon receiving development entitlements or building permits. The program has since been expanded to include financing of public capital improvements directly and has further expanded to provide for a choice between community facilities districts and assessment districts. If a property owner chooses to participate, the selected public capital improvements and the development impact fees owed to the City will be financed by the issuance of taxable or tax-exempt bonds by CSCDA. CSCDA will impose a special assessment or special tax on the owner’s property to repay the portion of the bonds issued to finance the fees paid with respect to the property. With respect to impact fees, the property owner will either pay the impact fees at the time of permit issuance and will be reimbursed from the SCIP bond proceeds when the SCIP bonds are issued; or the fees will be funded directly from the proceeds of the SCIP bonds. In the former case, the City is required to pay the fees over to SCIP at bond issuance (unless already spent on public improvements), and in the latter case, SCIP holds the bond proceeds representing the fees. In both cases the fees are subject to requisition by the City at any time to make authorized fee expenditures. But by holding and investing the money until it is spent, SCIP is able to monitor the investment earnings (which come to the City) for federal tax law arbitrage purposes. SCIP encourages the City to spend those amounts before any other fee revenues of the City.
DISCUSSION:
Consistent with the City Council established goal of identifying ways to establish assessment district(s) (AD) and/or Community Facilities District(s) (CFD) to provide necessary infrastructure in the North City and Extended North City planning areas, the Council is being asked to amend the existing resolution to include not only an AD, but also a CFD to participate in the Statewide Community Infrastructure Program (“SCIP”), which is a program of the California Statewide Communities Development Authority (the “CSCDA”).
The benefits to the property owner include:
• Only property owners who choose to participate in the program will have assessments or special taxes imposed on their property. • Instead of paying cash for public capital improvements and/or development impact fees, the property owner receives low -cost, long -term tax -exempt financing of those fees, freeing up capital for other purposes. • The property owner can choose to pay off the special assessments or special taxes at any time.
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• For home buyers, paying for the costs of public infrastructure through a special assessment or special tax is sometimes better to having those costs “rolled” into the cost of the home. Although the tax bill is higher, the amount of the mortgage is smaller, making it sometimes easier to qualify. Moreover, because the special assessment/special tax financing is typically at tax-exempt rates, it typically comes at lower cost than mortgage rates. SCIP can finance projects as low as $500,000, which would not be economical on a stand-alone basis. • Owners of smaller projects, both residential and commercial, can have access to tax-exemption financing of infrastructure. Before the inception of SCIP, only projects large enough to justify the formation of an assessment or community facilities district had access to tax-exempt financing.
The benefits to the City include:
• As in conventional assessment and CFD financing, the City is not liable to repay the bonds issued by CSCDA or the assessments or special taxes, as applicable, imposed on the participating properties.
• CSCDA has an underwriter, legal counsel, trustee, assessment administrator, special tax consultant, and program administrator to handle district formation, district administration, bond issuance and bond administration functions.
Participating agencies can provide tax -exempt financing to property owners through SCIP while committing virtually no City staff time to administer the program.
• Providing tax -exempt financing helps participating cities and counties cushion the impact of rising public capital improvements costs and development impact fees on property owners. Many developers rely on assessment district or CFD financing or CFD financing through SCIP in making the decision to purchase land thereby improving a City’s competitive advantage in attracting new development.
• The availability of financing will encourage developers to pull permits and pay fees in larger blocks, giving the participating city immediate access to revenues for public infrastructure, rather than receiving a trickle of revenues stretched out over time. As part of the entitlement negotiation process, the possibility of tax-exempt financing of fees can be used to encourage a developer to pay fees up front.
• In some cases, the special assessments on successful projects can be refinanced through refunding bonds. Savings achieved through refinancing will be directed back to the participating city for use on public infrastructure, subject to applicable federal tax limitations.
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Amending the existing resolution for the City to participate in the SCIP program for a Community Facilities District allows CSCDA to accept applications from owners of property within our planning jurisdiction to apply for tax -exempt financing of public capital improvements and development impact fees through SCIP not only as an Assessment District, but also as a Community Facilities District.
FISCAL IMPACT:
Other than staff time, no cost to the City
FIVE-YEAR STRATEGIC PLAN:
GOAL C: Fiscal Stability and Sustainability
Objective: Cathedral City has economically prospered by facilitating the investment of private dollars in high quality development which benefits the community. We remain financially solvent by instituting prudent fiscal policies and transparent financial practices.
ATTACHMENTS:
Cathedral City Reso 2024-XX dated 02.28.2024
Statewide_Community_Infrastructure_Program_SCIP_Overview
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RESOLUTION NO. 2024-XX
AMENDED AND RESTATED RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF CATHEDRAL CITY AUTHORIZING THE CITY TO JOIN THE STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM;
AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY TO ACCEPT APPLICATIONS FROM
PROPERTY OWNERS, CONDUCT SPECIAL ASSESSMENT
PROCEEDINGS AND LEVY ASSESSMENTS AND SPECIAL TAXES AND
TO FORM ASSESSMENT DISTRICTS AND COMMUNITY FACILITIES
DISTRICTS WITHIN THE TERRITORY OF THE CITY OF CATHEDRAL CITY; EMBODYING A JOINT COMMUNITY FACILITIES AGREEMENT
SETTING FORTH THE TERMS AND CONDITIONS OF COMMUNITY
FACILITIES DISTRICT FINANCINGS; APPROVING FORM OF
ACQUISITION A GREEMENT FOR USE WHEN APPLICABLE; AND
AUTHORIZING RELATED ACTIONS
WHEREAS, the California Statewide Communities Development Authority (the "Authority") is a joint exercise of powers authority , lawfully formed and operating within the State pursuant to an agreement (the “Joint Powers Agreement”) entered into as of June 1, 1988 under the authority of Title 1, Division 7, Chapter 5 (commencing with Section 6500) of the California Government Code (the “JPA Law”), the members of which include numerous cities, counties and local agencies in the State of California, including the City of Cathedral City (the "City"); and
WHEREAS, the Joint Powers Agreement authorizes the Authority to undertake financing programs under any applicable provisions of State law to promote economic development, the stimulation of economic activity, and the increase of the tax base within the jurisdictional boundaries of its members (such members, the “Program Participants”); and
WHEREAS, as one of the Programs under the Joint Powers Agreement, the Authority has established the Statewide Community Infrastructure Program ("SCIP") to allow the financing of certain public capital improvements to be constructed by or on behalf of property owners for acquisition by the City or another public agency (the “Improvements”) and improvements eligible for funding from certain development impact fees (the "Fees") levied in accordance with the Mitigation Fee Act (California Government Code Sections 66000 and following) and other authority providing for the levy of fees on new development to pay for public capital improvements (collectively, the "Fee Act") through the levy of special assessments pursuant to the Municipal Improvement Act of 1913 (Streets and Highways Code Sections 10000 and following) (the "1913 Act") and the issuance of improvement bonds (the "Local Obligations") under the Improvement Bond Act of 1915 (Streets and Highways Code Sections 8500 and following) (the "1915 Act") upon the security of the unpaid special assessments; and
WHEREAS, the “Mello-Roos Community Facilities Act of 1982,” being Chapter 2.5, Part 1, Division 2, Title 5 (beginning with Section 53311) of the Government Code of the State (the “Mello -Roos Act”) is an applicable provision of State law available to, among other things, finance public improvements necessary to meet increased demands placed upon local agencies as a result of development; and
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WHEREAS, the Authority also uses SCIP to allow the financing of Fees and Improvements through the levy of special taxes and the issuance of Local Obligations under the Mello-Roos Act upon the security of the special taxes; and
WHEREAS, the City desires to allow the owners of property being developed within its jurisdiction ("Participating Developers") to participate in SCIP and to allow the Authority to conduct proceedings and to form community facilities districts (“CFDs”) and to issue Local Obligations under the Mello -Roos Act, as well as to conduct assessment proceedings to form assessment districts (“Assessment Districts”) assessment proceedings under the 1913 Act and to issue Local Obligations under the 1915 Act to finance F ees levied on such properties and Improvements, provided that such Participating Developers voluntarily agree to participate and consent to the levy of such assessments or special taxes, as applicable; and
WHEREAS, from time to time when eligible property owners within the jurisdiction of the City elect to be Participating Developers, the Authority will conduct proceedings under the 1913 Act and the Mello-Roos Act and issue Local Obligations under the 1915 Act and the Mello -Roos Act to finance Fees payable by such property owners and Improvements and, at the conclusion of such proceedings, will levy assessments or special taxes, as applicable, on such property within the territory of the City; and
WHEREAS, both the Authority and the City are “local agencies” under the Mello - Roos Act; and
WHEREAS, the Mello-Roos Act permits two or more local agencies to enter into a joint community facilities agreement to exercise any power authorized by the Mello-Roos Act; and
WHEREAS, the City desires to enter into such an agreement with the Authority to authorize the Authority to form CFDs from time to time within the territorial limits of the City to finance Fees payable by such property owners and Improvements; and
WHEREAS, the City has previously presented Resolution No. 2015 -17 of the City Council of the City of Cathedral City, authorizing the City to join the Statewide Community Infrastructure Program; authorizing the California Statewide Communities Development Authority to accept applications from property owners, conduct special assessment proceedings and levy assessments within the territory of the City of Cathedral City; approving a form of acquisition agreement; and authorizing related actions (the “Original Resolution”), and such Original Resolution was adopted on March 25, 2015; and
WHEREAS, the City now wishes to amend and restate the Original Resolution; and
WHEREAS, there has been presented to this meeting a proposed form of Resolution of Intention to be adopted by the Authority in connection with assessment proceedings (the "ROI"), a copy of which is attached hereto as Exhibit A, and the territory within which assessments may be levied for SCIP (provided that each Participating Developer consents to such assessment) shall be coterminous with the City's official boundaries of record at the time of adoption of each such ROI (the "Proposed Boundaries"), and refe rence is hereby made to such boundaries for the plat or map required to be included in this Amended and Restated Resolution pursuant to Section 10104 of the Streets and Highways Code; and
WHEREAS, there has also been presented to this meeting a proposed form of
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Attachment: Cathedral City Reso 2024-XX dated 02.28.2024 (4105 : Statewide Community Infrastructure Program (SCIP) Update)
Acquisition Agreement (the "Acquisition Agreement"), a copy of which is attached hereto as Exhibit B, to be approved as to form for use with respect to any Improvements to be constructed and installed by a Participating Developer and for which the Participating Developer requests acquisition financing as part of its SCIP application; and
WHEREAS, the City will not be responsible for the conduct of any proceedings; the levy or collection of assessments o r s p e c i a l t a x e s or any required remedial action in the case of delinquencies in such assessment or special tax payments; or the issuance, sale or administration of the Local Obligations or any other bonds issued in connection with SCIP; and
WHEREAS, pursuant to SCIP, the Authority periodically issues Local Obligations on behalf of the local agency participants in SCIP to provide financing for the Fees and Improvements and then concurrently issues its revenue bonds pursuant to the Marks - Roos Local Bond Pooling Act of 1985, consisting of Article 4 (commencing with Section 6584) of Chapter 5, Division 7, Title 1 of the California Government Code (the “Marks - Roos Act”), the proceeds of which are used to purchase the Local Obligations; and
WHEREAS, pursuant to Government Code Section 6586.5, notice was published at least five days prior to the adoption of this Amended and Restated Resolution at a public hearing, which was duly conducted by this Council concerning the significant public benefits of SCIP and the financing of the Improvements and the public capital improvements to be paid for with the proceeds of the Fees;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Cathedral City as follows:
Section 1. This Amended and Restated Resolution shall constitute full “local approval,” under Section 9 of the Joint Powers Agreement, and under the Authority’s Local Goals and Policies (defined below), for the Authority to undertake and conduct proceedings in accordance herewith and under the Mello Roos Act to form CFDs with boundaries that shall be coterminous with the City’s official boundaries of record at the time of such proceedings or any portion thereof (the “Proposed Boundaries”), and to authorize a special tax and to issue bonds with respect thereto; provided that the Participating Developers, who shall be the legal owners of such property at the time of formation of the CFD, execute a written consent to the levy of special tax in connection with SCIP by the Authority and execute a ballot in favor of the formation of such CFD and the Mello-Roos Act
Section 2. The City hereby consents to the conduct of special assessment proceedings by the Authority in connection with SCIP pursuant to the 1913 Act and the issuance of Local Obligations under the 1915 Act on any property within the Proposed Boundaries; provided, that
(1) Such proceedings are conducted pursuant to one or more Resolutions of Intention in substantially the form of the ROI; and
(2) The Participating Developers, who shall be the legal owners of such property at the time of formation of the Assessment District , execute a written consent to the levy of assessments in connection with SCIP by the Authority and execute an assessment ballot in favor of such assessment in compliance with the requirements of Section 4 of Article XIIID of the State Constitution.
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Attachment: Cathedral City Reso 2024-XX dated 02.28.2024 (4105 : Statewide Community Infrastructure Program (SCIP) Update)
Section 3. The Joint Powers Agreement, together with the terms and provisions of this Amended and Restated Resolution, shall together constitute a separate joint community facilities agreement between the City and the Authority under the Mello-Roos Act for each CFD f ormed. As, without this Amended and Restated Resolution, the Authority has no power to finance City Fees and/or City Improvements (as such terms are defined herein) in proceedings under the Mello -Roos Act to form the CFD, adoption by the Commission of the Authority of each Resolution of Intention to form a CFD under the Mello-Roos Act to finance City Fees and/or City Improvements shall constitute acceptance of the terms hereof by the Authority with respect to such CFD.
Section 4. This Amended and Restated Resolution and the agreement it embodies are determined to be beneficial to the residents/customers of the City and are in the best interests of the residents of the City, and of the future residents of the area within the proposed CFDs and Assessment Districts. The City hereby finds and declares that the issuance of revenue bonds by the Authority to purchase Local Obligations in connection with SCIP will provide significant public benefits, including without limitation, savings in effective interest rate, bond preparation, bond underwriting and bond issuance costs and the more efficient delivery of local agency services to residential and commercial development within the City.
Section 5. The Authority has adopted Local Goals and Policies as required by Section 53312.7 of the Mello-Roos Act. The City approves the use of those Local Goals and Policies in connection with the formation of CFDs. The City hereby agrees that the Authority may act in lieu of the City under those Local Goals and Policies in forming and administering the CFDs.
Section 6. The Authority has prepared and will update from time to time the "SCIP Manual of Procedures" (the "Manual"), and the City will handle Fee revenues and funds for Improvements for properties participating in SCIP in accordance with the procedures set forth in the Manual.
Section 7. Pursuant to the Mello -Roos Act and this Amended and Restated Resolution, the Authority may conduct proceedings under the Mello-Roos Act to form the CFDs and to have such CFDs authorize the financing of any or all of the facilities and Fees set forth on Exh ibit C, attached hereto. All of the facilities, whether to be financed directly or through Fees, shall be facilities that have an expected useful life of five years or longer and are facilities that the City or other local public agencies, as the case may be, are authorized by law to construct, own or operate, or to which they may contribute revenue. Exhibit C may be modified from time to time by written agreement between an authorized representative of the Authority and of the City. The facilities are r eferred to herein as the “Improvements,” and the Improvements to be owned by the City are referred to as the “City Improvements.” The Fees paid or to be paid to the City are referred to as the “City Fees.”
Section 8. For Fees paid or to be paid to another agency by any particular CFD (an “Other Local Agency”), the Authority will obtain the written consent of that Other Local Agency before issuing Local Obligations to fund such Fees, as required by the
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Mello-Roos Act. For the Improvements to be owned by an Other Local Agency, the Authority will separately identify them in its proceedings, and will enter into a joint community facilities agreement with such Other Local Agency prior to issuing Local Obligations to finance such Improvements, as required by the Mello-Roos Act. Each joint community facilities agreement with each Other Local Agency will contain a provision that the Other Local Agency will provide indemnification to the City to the same extent that the City provides indemnification to the Other Local Agency under the terms of this Amended and Restated Resolution.
Section 9. At the time of formation of each CFD, the City will certify to the Commission of the Authority that all of the City Improvements including the improvements to be constructed or acquired with the proceeds of City Fees to be funded by such CFD are necessary to meet increased demands placed upon the City as a result of development occurring or expected to occur within the proposed CFDs in the form attached hereto as Exhibit D. Any appropriate officer or staff of the City is authorized to execute and deliver such certificate in substantially the form attached hereto as Exhibit D, with such changes as such signatory shall approve. Joint community facilities agreements with other local agencies will each contain a requirement that each Other Local Age ncy will make identical certification in connection with respect to the Improvements to be owned by, and Fees paid or to be paid to, such Other Local Agency equivalent to that made by the City in this paragraph.
Section 10. The Authority will apply the special tax collections initially as required by the documents under which any Local Obligations are issued; and thereafter, to the extent not provided in the Local Obligations documents, may pay its own reasonable administrative costs incurred in the administration of the CFDs. The Authority will remit any special tax revenues from any particular CFD remaining after the final retirement of all related Local Obligations to the City and to the other local agencies in the proportions specified in the Authority’s proceedings. The City will apply any such special tax revenues it receives for authorized City Improvements or City Fees and its own administrative costs only as permitted by the Mello -Roos Act. The joint comm unity facilities agreements with each Other Local Agency must require the Other Local Agency to apply the special tax revenues they receive for their authorized Improvements and Fees under the CFDs and for their own related administrative costs only as permitted by the Mello-Roos Act.
Section 11. The Authority will administer the CFDs, including employing and paying all consultants, annually levying the special tax and all aspects of paying and administering the Local Obligations, and complying with all State and Federal requirements appertaining to the proceedings, including the requirements of the United States Internal Revenue Code. The City will cooperate fully with the Authority in respect of the requirements of the Internal Revenue Code and to the extent information is required of the City to enable the Authority to perform its disclosure and continuing disclosure obligations with respect to the Local Obligations and any revenue bonds, although the City will not participate in nor be considered to be a participant in the proceeding s respecting the CFDs (other than as a party to the agreement embodied by this Amended and Restated Resolution) nor will the City be or be considered to be an issuer of the Local Obligations nor any revenue bonds. The Authority is required to obtain a pro vision equivalent to this paragraph in all joint community facilities agreements with each Other
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Local Agency.
Section 12. In the event the Authority completes issuance and sale of Local Obligations, and Local Obligation proceeds become available to finance the Improvements, the Authority shall establish and maintain a special fund for each development project (the “Acquisition and Construction Fund”). The portion of Local Obligation proceeds which is intended to be utilized to finance the Improvements and Fees shall be deposited in the Acquisition and Construction Fund. The Acquisition and Construction Fund will be available both for City Improvements and City Fees and for the Improvements and Fees pertaining to each Other Local Agency. Subaccounts shall be created as necessary.
Section 13. As respects the Authority and each Other Local Agency, the City agrees to fully administer, and to take full governmental responsibility for, the construction or acquisition of the City Improvements and for the administration and expenditure of the City Fees including but not limited to environmental review, approval of plans and specifications, bid requirements, performance and payment bond requirements, insurance requirements, contract and construction administration, staking, inspection, acquisition of necessary property interests in real or personal property, the holding back and administration of retention payments, punch list administration, and the Authority and each Other Local Agency shall have no responsibility in that regard. The City reserves the right, as respects each Participating Developer, to require the Participating Developer to contract with the City to assume any portion or all of this responsibility. The Authority is required to obtain provisions equivalent to this paragrap h in the joint community facilities agreement with each Other Local Agency.
Section 14. The City agrees to indemnify and to hold the Authority, its other members, and its other members’ officers, agents and employees, and each Other Local Agency and their officers, agents and employees (collectively, the “Indemnified Parties”) harmless from any and all claims, suits and damages (including costs and reasonable attorneys’ fees) arising out of the design, engineering, construction and installation of the City Improvements and the improvements to be financed or acquired with the City F ees.
The City reserves the right, as respects each Participating Developer, to require the Participating Developer to assume by contract with the City any portion or all of this responsibility. The Authority is required to obtain a provision equivalent to this paragraph in all joint community facilities agreements with each Other Local Agency naming the City and its officers, agents and employees as Indemnified Parties with respect to each Other Local Agency’s respective Improvements and the improvements to be constructed or acquired with each Other Local Agency’s Fees.
Section 15. As respects the Authority and each Other Local Agency, the City agrees – once the City Improvements are constructed according to the approved plans and specifications, and the City and the Participating Developer have put in place their agreed arrangements for the funding of maintenance of the City Improvements – to accept ownership of the City Improvements, to take maintenance responsibility for the City Improvements, and to indemnify and hold harmless the Indemnified Parties to the extent provided in the preceding paragraph from any and all claims, etc., arising out of the use and maintenance of the City Improvements. The City reserves the right, as respects the
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Participating Developer, to require the Participating Developer by contract with the City to assume any portion or all of this responsibility. The Authority is required to obtain a provision equivalent to this paragraph in all joint community facilities a greements with each Other Local Agency naming the City and its officers, agents and employees as Indemnified Parties.
Section 16. The City acknowledges the requirement of the Mello-Roos Act that if the City Improvements are not completed prior to the adoption by the Commission of the Authority of the Resolution of Formation of the CFD for each respective development project, the City Improvements must be constructed as if they had been constructed under the direction and supervision, or under the authority of, the City. The City acknowledges that this means all City Improvements must be constructed under contracts that re quire the payment of prevailing wages as required by Section 1720 and following of the Labor Code of the State of California. The Authority makes no representation that this requirement is the only applicable legal requirement in this regard. The City res erves the right, as respects the Participating Developer, to assign appropriate responsibility for compliance with this paragraph to the Participating Developer.
Section 17. The form of the Acquisition Agreement attached hereto as Exhibit B is hereby approved, and the City Manager or such officer’s designee (each, an “Authorized Officer”) is authorized to execute, and deliver to the Participating Developer, the Acq uisition Agreement on behalf of the City in substantially that form, with such changes as shall be approved by the Authorized Officer after consultation with the City Attorney and the Authority’s bond counsel, such approval to be conclusively evidenced by the execution and delivery thereof.
Section 18. After completion of the City Improvements and appropriate arrangements for the maintenance of the City Improvements, or any discrete portion thereof as provided in Section 53313.51 of the Mello -Roos Act and in the Acquisition Agreement, to the satisfaction of the City, and in conjunction with the City’s acceptance thereof, acquisition of the City Improvements shall be undertaken as provided in the Acquisition Agreement.
Section 19. The City hereby consents to the formation of the CFDs in accordance with this Amended and Restated Resolution and consents to the assumption of jurisdiction by the Authority for the proceedings respecting the CFDs with the understanding that th e Authority will hereafter take each and every step required for or suitable for consummation of the proceedings, the levy, collection and enforcement of the special tax, and the issuance, sale, delivery and administration of the Local Obligations, all at no cost to the City and without binding or obligating the City’s general fund or taxing authority.
Section 20. The terms of the Agreement embodied by this Amended and Restated Resolution may be amended by a writing duly authorized, executed and delivered by the City and the Authority, except that no amendment may be made after the issuance of the Local Obligations by the Authority that would be detrimental to the interests of the bondholders without complying with all of the bondholder consent provisions for the amendment of the bond resolutions, bond indentures or like instruments governing the
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issuance, delivery and administration of all outstanding Local Obligations.
Section 21. Except to the extent of the indemnifications extended to each Other Local Agency in the Agreement embodied by this Amended and Restated Resolution, and the City’s agreement to take responsibility for and ownership of the City Improvements, no person or entity, including the Participating Developer, shall be deemed to be a third party beneficiary of this Amended and Restated Resolution, and nothing in this Amended and Restated Resolut ion (either express or implied) is intended to confer upon any person or entity other than the Authority and the City (and their respective successors and assigns) any rights, remedies, obligations or liabilities under or by reason of this Amended and Restated Resolution.
Section 22. The City shall be identified as a third -party beneficiary of all joint community facilities agreements between the Authority and each Other Local Agency to the extent of the indemnification provisions and the provisions whereby each Other Local Agency agrees to take responsibility for and ownership of their Improvements.
Section 23. The appropriate officials and staff of the City are hereby authorized and directed to make SCIP applications available to all property owners who are subject to Fees for new development within the City and/or who are conditioned to install Improvements and to inform such owners of their option to participate in SCIP; provided, that the Authority shall be responsible for providing such applications and related materials at its own expense. The staff persons listed on the attached Exhibit E, together with any other staff persons chosen by the City Manager from time to time, are hereby designated as the contact persons for the Authority in connection with SCIP .
Section 24. The appropriate officials and staff of the City are hereby authorized and directed to execute and deliver such closing certificates, requisitions, agreements and related documents, including but not limited to such documents as may be required by bond counsel in connection with the participation in SCIP of any districts, authorities or other third-party entities entitled to own Improvements and/or to levy and collect fees on new development to pay for public capital improvements within the jurisdiction of the City, as are reasonably required by the Authority in accordance with the Manual to implement SCIP and to evidence compliance with the requirements of federal and state law in connection with the issuance by the Authority of the Local Obligations and any other bonds for SCIP. To that end, and pursuant to Treasury Regulations Section 1.150-2, the staff persons listed on Exhibit E, or other staff person acting in the same capacity for the City with respect to SCIP, are hereby authorized and designated to declare the official intent of the City with respect to the public capital improvements to be paid or reimbursed through participation in SCIP.
Section 25. This Amended and Restated Resolution shall take effect immediately upon its adoption. The City Clerk is hereby authorized and directed to transmit a certified copy of this Amended and Restated Resolution to the Secretary of the Authority. This Amended and Restated Resolution shall remain in force with respect to any Assessment District and CFD formed until all Local Obligations have been retired and the authority to levy the special tax conferred by any CFD proceedings and to levy the ass essment conferred by any assessment proceedings has ended or is otherwise terminated. The
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Original Resolution shall remain in force with respect to any SCIP application approved by the City and any Assessment District formed pursuant to its authority until all Local Obligations have been retired and the authority to levy the assessment conferre d by any assessment proceedings carried out pursuant to the Original Resolution has ended or is otherwise terminated.
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l
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Cathedral City held on this 28th day of February 2024, by the following vote:
Ayes:
Noes:
Abstain:
Absent:
Mayor
City Clerk
APPROVED AS TO FORM:
City Attorney
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EXHIBIT A TO THE RESOLUTION
FORM OF RESOLUTION OF INTENTION
TO BE ADOPTED BY CSCDA
RESOLUTION OF INTENTION OF THE CALIFORNIA STATEWIDE
COMMUNITIES DEVELOPMENT AUTHORITY TO FINANCE CAPITAL
IMPROVEMENTS AND/OR THE PAYMENT OF DEVELOPMENT IMPACT
FEES FOR PUBLIC CAPITAL IMPROVEMENTS IN THE PROPOSED
STATEWIDE COMMUNITY INFRASTRUCTURE PROGRAM
ASSESSMENT DISTRICT NO. _ _ _ ([name of project])
CITY OF CATHEDRAL CITY, COUNTY OF RIVERSIDE , APPROVING A
PROPOSED BOUNDARY MAP, MAKING CERTAIN DECLARATIONS,
FINDINGS AND DETERMINATIONS CONCERNING RELATED
MATTERS, AND AUTHORIZING RELATED ACTIONS IN CONNECTION
THEREWITH
WHEREAS, under the authority of the Municipal Improvement Act of 1913 (the "1913 Act"), being Division 12 (commencing with Sections 10000 and following) of the California Streets and Highways Code (the “Code”), the Commission (the "Commission") of the California Statewide Communities Development Authority (the "Authority") intends to finance, through its Statewide Community Infrastructure Program, the payment of certain development impact fees for public improvements (the " Improvement Fees") and/or to finance certain public capital improvements to be constructed by or on behalf of the property owner(s) and to be acquired by the City or another local agency (the "Improvements"), all of which are of benefit to the property within the proposed Assessment District No. (County of Riverside, California) (the "Assessment District"); and
WHEREAS, the Commission finds that the land specially benefited by the Improvements and/or the Improvement Fees is shown within the boundaries of the map entitled "Proposed Boundaries of California Statewide Communities Development Authority Statewide Community Infrastructure Program Assessment District No. ([name of project]) City of Cathedral City, County of Riverside, State of California," a copy of which map is on file with the Secretary and presented to this Commission meeting, and determines that the land within the exterior boundaries shown on the map shall be designated "Statewide Community Infrastructure Program Assessment District No. ([name of project]) City of Cathedral City, County of Riverside, State of California"; WHEREAS, the City of Cathedral City is a member of the Authority and has approved the adoption on its behalf of this Resolution of Intention and has consented to the levy of the assessments in the Assessment District; NOW, THEREFORE , BE IT RESOLVED that the Commission of the California Statewide Communities Development Authority hereby finds, determines and resolves as follows:
1. The above recitals are true and correct.
2. Pursuant to Section 2961 of the Special Assessment Investigation,
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Limitation and Majority Protest Act of 1931 (the "1931 Act"), being Division 4 (commencing with Section 2800) of the Code, the Commission hereby declares its intent to comply with the requirements of the 1931 Act by complying with Part 7.5 thereof.
3. The Commission has designated a registered, professional engineer as Engineer of Work for this project, and hereby directs said firm to prepare the report containing the matters required by Sections 2961(b) and 10204 of the Code, as supplemented by Section 4 of Article XIIID of the California Constitution.
4. The proposed boundary map of the Assessment District is hereby approved and adopted. Pursuant to Section 3111 of the Code, the Secretary of the Authority is directed to file a copy of the map in the office of the County Recorder of the County of Riverside within fifteen (15) days of the adoption of this resolution.
5. The Commission determines that the cost of financing the Improvements and/or the payment of the Improvement Fees shall be specially assessed against the lots, pieces or parcels of land within the Assessment District benefiting from the financing of the Improvements and/or the payment of the Improvement Fees. The Commission intends to levy a special assessment upon such lots, pieces or parcels in accordance with the special benefit to be received by each such lot, piece or parcel of land, respectively, from the financing of the Improvements and/or the payment of the Improvement Fees.
6. The Commission intends, pursuant to subparagraph (f) of Section 10204 of the Code, to provide for an annual assessment upon each of the parcels of land in the proposed assessment district to pay various costs and expenses incurred from time to time by the Authority and not otherwise reimbursed to the Authority which result from the administration and collection of assessment installments or from the administration or registration of the improvement bonds and the various funds and accounts pertaining thereto.
7. Bonds representing unpaid assessments and bearing interest at a rate not to exceed twelve percent (12%) per annum, will be issued in the manner provided by the Improvement Bond Act of 1915 (Division 10 of the Code), and the last installment of the bonds shall mature not to exceed twenty-nine (29 ) years from the second day of September next succeeding twelve (12) months from their date.
8. The procedure for the collection of assessments and advance retirement of bonds under the Improvement Bond Act of 1915 shall be as provided in Part 11.1, Division 10, of the Code.
9. Neither the Authority nor any member agency thereof will obligate itself to advance available funds from its or their own funds or otherwise to cure any deficiency which may occur in the bond redemption fund. A determination not to obligate itself shall not prevent the Authority or any such member agency from, in its sole discretion, so advancing funds.
10. The amount of any surplus remaining in the improvement fund after acquisition of the Improvements and/or payment of Improvement Fees and payment of all other claims shall be distributed in accordance with the provisions of Section 10427.1 of the Code.
11. To the extent any Improvement Fees are paid to the Authority in cash with respect to property within the proposed Assessment District prior to the date of issuance of the bonds, the amounts so paid shall be reimbursed from the proceeds of the bonds to
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the property owner or developer that made the payment.
[End of Form of Resolution of Intention]
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EXHIBIT B TO THE RESOLUTION
FORM OF ACQUISITION AGREEMENT
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT
AUTHORITY STATEWIDE COMMUNITY INFRASTRUCTURE
PROGRAM
ACQUISITION AGREEMENT
BY AND BETWEEN
CITY OF CATHEDRAL
CITY
AND
[DEVELOPER]
Dated as of _________________ , 20____
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[ACQUISITION AGREEMENT FORM HAS BEEN REPLACED IN ITS ENTIRETY]
ACQUISITION AGREEMENT
Recitals
A. The parties to this Acquisition Agreement (the “Agreement”) are the CITY OF CATHEDRAL CITY, (the “Local Agency”), and [DEVELOPER], a [indicate type of legal entity] (the “Developer”).
B. The effective date of this Agreement is ________, 20__.
C. The Developer has applied for the financing of, among other things, certain public capital improvements to be owned by the Local Agency (collectively, the “Acquisition Improvements”) through the California Statewide Communities Development Authority (the “Authority”) and its Statewide Community Infrastructure Program (“SCIP”). [For CFDS:] [The Acquisition Improvements are to be owned and operated by the Local Agency, and the financing is to be accomplished through a community facilities district which w ill be administered by the Authority under and pursuant to the Mello -Roos Community Facilities Act of 1982 – California Government Code Sections 53311 and following (the “Act”). On [__________], 20[_], the Local Agency entered into a Joint Community Facilities Agreement authorizing the Authority to form a community facilities district (the “District”) within the territorial limits of the Local Agency to finance, among other things, the Acquisition Improvements. On [__________], 20[_], the Authority formed the District and, on the same date, a landowner election was conducted in which all of the votes were cast unanimously in favor of conferring the District authority on the Authority Commission.] [For Assessment Districts:][The Acquisition Improvements are to be owned and operated by the Local Agency, and the financing is to be accomplished through an assessment district (the “District”) which will be administered by the Authority under and pursuant to Municipal Improvement Act of 1913 (Streets and Highways Code Sections 10000 and following) (the “1913 Act”) and the issuance of improvement bonds (the “Local Obligations”) under the Improvement Bond Act of 1915 (Streets and Highways Code Sections 8500 and following) (the “1915 Act” and, together with the “1913 Act” the “Act”).]
D. The administration, payment and reimbursement of the capital facilities fees is agreed to be governed by the provisions of the SCIP Manual of Procedures as it may be amended from time to time. The administration, payment and reimbursement of the Acquisition Improvements shall be as provided herein.
E. Under SCIP, the Authority intends to levy [assessments] [special taxes] and issue bonds, in one or more series, to fund, among other things, all or a portion of the costs of the Acquisition Improvements. The portion of the proceeds of the [special taxes and] bonds allocable to the cost of the Acquisition Improvements, together with interest earned thereon, is referred to herein as the “Available Amount”.
F. The Authority will provide financing for the acquisition by the Local Agency
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of the Acquisition Improvements and the payment of the Acquisition Price (as defined herein) of the Acquisition Improvements from the Available Amount. Attached hereto as Exhibit A is a description of the Acquisition Improvements, which includes authorized discrete and usable portions, if any, of the public capital improvements, [pursuant to Section 53313.51 of the Act,] to be acquired from the Developer.
G. The parties anticipate that, upon completion of the Acquisition Improvements and subject to the terms and conditions of this Agreement, the Local Agency will acquire such completed Acquisition Improvements with the Available Amount.
H. Any and all monetary obligations of the Local Agency arising out of this Agreement are the special and limited obligations of the Local Agency payable only from the Available Amount, and no other funds whatsoever of the Local Agency shall be obligated therefor.
I. Attached to this Agreement are Exhibit A (Acquisition Improvements and the Eligible Portions thereof) and Exhibit B (Form of Requisition), which are incorporated into this Agreement for all purposes.
In consideration of Recitals A through I, inclusive, and the mutual covenants, undertakings and obligations set forth below, the Local Agency and the Developer agree as stated below.
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Agreement
ARTICLE I
DEFINITIONS; DISTRICT FORMATION AND
FINANCING PLAN
Section 1.01. Definitions. As used herein, the following capitalized terms shall have the meanings ascribed to them below:
“Acceptable Title” means free and clear of all monetary liens, encumbrances, assessments, whether any such item is recorded or unrecorded, and taxes, except those items which are reasonably determined by the Local Agency Engineer not to interfere with the intended use and therefore are not required to be cleared from the title.
“Acquisition and Construction Fund” means the “City of Cathedral City Acquisition and Construction Fund” established by the Authority pursuant to Section 1.03 hereof for the purpose of paying the Acquisition Price of the Acquisition Improvements and which fund may be held as a subaccount within a fund established under the Authority Trust Agreement and may be commingled with acquisition and construction fund monies available for other public capital improvements.
“Acquisition Improvement” shall have the meaning assigned to such term in the recitals and are further described in Exhibit A.
“Acquisition Price” means the total amount eligible to be paid to the Developer upon acquisition of an Acquisition Improvement as provided in Section 2.03 not to exceed the Actual Cost of the Acquisition Improvement.
“Act” has the meaning ascribed thereto in Recital C.
“Actual Cost” means the total cost of an Acquisition Improvement, as documented by the Developer to the satisfaction of the Local Agency and as certified by the Local Agency Engineer in an Actual Cost Certificate including, without limitation, (a) the Deve loper’s cost of constructing such Acquisition Improvement including grading, labor, material and equipment costs, (b) the Developer’s cost of designing and engineering the Acquisition Improvement, preparing the plans and specifications and bid documents fo r such Acquisition Improvement, and the costs of inspection, materials testing and construction staking for such Acquisition Improvement, (c) the Developer’s cost of any performance, payment and maintenance bonds and insurance, including title insurance, r equired hereby for such Acquisition Improvement, (d) the Developer’s cost of any real property or interest therein that is either necessary for the construction of such Acquisition Improvement (e.g., temporary construction easements, haul roads, etc.), or is required to be conveyed with such Acquisition Improvement in order to convey Acceptable Title thereto to the Local Agency or its designee, (e) the Developer’s cost of environmental evaluation or mitigation required for such Acquisition Improvement, (f) the amount of any fees actually paid by the Developer to governmental agencies in order to obtain permits,
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licenses or other necessary governmental approvals and reviews for such Acquisition Improvement, (g) the Developer’s cost for construction and project management, administration and supervision services for such Acquisition Improvement, (h) the Developer’s cost for professional services related to such Acquisition Improvement, including engineering, accounting, legal, financial, appraisal and similar professional services, and (i) the costs of construction financing incurred by the Developer with respect to such Acquisition Improvement.
“Actual Cost Certificate” means a certificate prepared by the Developer detailing the Actual Cost of an Acquisition Improvement, or an Eligible Portion thereof, to be acquired hereunder, as may be revised by the Local Agency Engineer pursuant to Section 2.03.
“Agreement” means this Acquisition Agreement, dated as of [_______________], 20[_].
“Authority” means the California Statewide Communities Development Authority.
“Authority Trust Agreement” means a Trust Agreement entered into by the Authority and an Authority Trustee in connection with the issuance of bonds.
“Authority Trustee” means the financial institution identified as trustee in an Authority Trust Agreement.
“Available Amount” shall have the meaning assigned to the term in Recital E.
“Bonds” means bonds or other indebtedness issued by the Authority as tax -exempt or taxable bonds or other indebtedness, in one or more series, that is to be repaid by the District.
“Code” means the Streets and Highways Code or the Government Code of the State of California, as applicable.
“Developer” means [Developer], its successors and assigns.
“Disbursement Request Form” means a requisition for payment of funds from the Acquisition and Construction Fund for an Acquisition Improvement, or an Eligible Portion thereof in substantially the form contained in Exhibit B hereto.
“District” shall have the meaning assigned to the term in Recital C.
“Eligible Portion” shall have the meaning ascribed to it in Section 2.03 below.
“Installment Payment” means an amount equal to ninety percent (90%) of the Actual Cost of an Eligible Portion.
“Local Agency” means the City of Cathedral City.
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“Local Agency Engineer” means the Engineer of the Local Agency or his/her designee who will be responsible for administering the acquisition of the Acquisition Improvements hereunder.
“Project” means the Developer’s development of the property in the District, including the design and construction of the Acquisition Improvements and the other public and private improvements to be constructed by the Developer within the District.
[“Special Taxes” means annual special taxes, and prepayments thereof, authorized by the District to be levied by the Commission of the Authority.]
“Title Documents” means, for each Acquisition Improvement acquired hereunder, a grant deed or similar instrument necessary to transfer title to any real property or interests therein (including easements), or an irrevocable offer of dedication of such real property with interests therein n ecessary to the operation, maintenance, rehabilitation and improvement by the Local Agency of the Acquisition Improvement (including, if necessary, easements for ingress and egress) and a bill of sale or similar instrument evidencing transfer of title to t he Acquisition Improvement (other than said real property interests) to the Local Agency, where applicable.
Section 1.02. Participation in SCIP . [ For CFDs :][The Local Agency has entered into a Joint Community Facilities Agreement with the Authority for the purpose of accepting applications from time to time of developers within the Local Agency’s jurisdictional boundaries.] Developer has applied for financ ing through SCIP of the Acquisition Improvements, and such application has been approved by the Local Agency.
Developer and Local Agency agree that until and unless such financing is completed by the Authority and the Available Amount is deposited in the Acquisition Account (as defined in Section 1.03 below), neither the Developer nor the Local Agency shall have any obligations under this agreement. Developer agrees to cooperate with the Local Agency and the Authority in the completion of SCIP financing for the Acquisition Improvements.
Section 1.03. Deposit and Use of Available Amount.
(a) Upon completion of the SCIP financing, the Available Amount will be deposited by the Authority in the Acquisition Account.
(b) The Authority will cause the SCIP Trustee to establish and maintain an account (the “Acquisition Account”) for the purpose of holding all funds for the Acquisition Improvements. All earnings on amounts in the Acquisition and Construction Fund shall remain in the Acquisition and Construction Fund for use as provided herein and pursuant to the Authority Trust Agreement. Money in the Acquisition and Construction Fund shall be available to respond to delivery of a Disbursement Request Form and to be paid to t he Developer or its designee to pay the Acquisition Price of the Acquisition Improvements, as specified in Article II hereof. Upon completion of all of the Acquisition Improvements and the payment of all costs thereof, any remaining funds in the Acquisition and Construction Fund (less any amount determined by the Local Agency as necessary to reserve for claims against the account) (i) shall be applied to pay the costs of any additional Acquisition Improvements eligible for acquisition with respect to
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the Project as approved by the Authority and, to the extent not so used, (ii) shall be applied by the Authority [to call Bonds or to reduce Special Taxes as the Authority shall determine][as provided in Section 10427.1 of the Code to pay a portion of the assessments levied on the Project property in the District].
Section 1.04. No Local Agency Liability; Local Agency Discretion; No Effect on Other Agreements. In no event shall any actual or alleged act by the Local Agency or any actual or alleged omission or failure to act by the Local Agency with respect to SCIP subject the Local Agency to monetary liability therefor. Further, nothing in this Agreement shall be construed as affecting the Developer’s or the Local Agency’s duty to perform their respective obligations under any other agreements, public improvement standards, land use regulations or subdivision requirements related to the Project, which obligations are and shall remain independent of the Developer’s and the Local Agency’s rights and obligations under this Agreement.
ARTICLE II
DESIGN, CONSTRUCTION AND ACQUISITION OF ACQUISITION IMPROVEMENTS Section 2.01. Letting and Administering Design Contracts . The parties presently anticipate that the Developer has awarded and administered or will award and administer engineering design contracts for the Acquisition Improvements to be acquired from Developer. All eligible expenditures of the Developer for de sign engineering and related costs in connection with the Acquisition Improvements (whether as an advance to the Local Agency or directly to the design consultant) shall be reimbursed at the time of acquisition of such Acquisition Improvements. The Develo per shall be entitled to reimbursement for any design costs of the Acquisition Improvements only out of the Acquisition Price as provided in Section 2.03 and shall not be entitled to any payment for design costs independent of or prior to the acquisition of Acquisition Improvements.
Section 2.02. Letting and Administration of Construction Contracts; Indemnification. State law requires that all Acquisition Improvements not completed prior to the formation of the District shall be constructed as if they were constructed under the direction and supervision, or under the authority, of the Local Agency. In order to assure compliance with those provisions, except for any contracts entered into prior to the date hereof, Developer agrees to comply with the requirements set forth in Exhibit C hereto with respect to the bidding and contracting for the construction of the Acq uisition Improvements. The Developer agrees that all the contracts shall call for payment of prevailing wages as required by the Labor Code of the State of California. The Developer’s indemnification obligation set forth in Section 3.01 of this Agreement shall also apply to any alleged failure to comply with the requirements of this Section, and/or applicable State laws regarding public contracting and prevailing wages.
Section 2.03. Sale of Acquisition Improvements. The Developer agrees to sell to the Local Agency each Acquisition Improvement to be constructed by Developer (including any rights -of-way or other easements necessary for the Acquisition Improvements, to the extent not already publicly owned), when the Acquisition
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Improvement is has been constructed and is complete to the satisfaction of the Local Agency for an amount not to exceed the lesser of (i) the Available Amount or (ii) the Actual Cost of the Acquisition Improvement. Exhibit A, attached hereto and incorporated herein, contains a list of the Acquisition Improvements. Portions of an Acquisition Improvement eligible for Installment Payments prior to completion of the entire Acquisition Improvement are described as eligible, discr ete and usable portions in Exhibit A (each, an “Eligible Portion”). At the time of completion of each Acquisition Improvement, or Eligible Portion thereof, the Developer shall deliver to the Local Agency Engineer a written request for acquisition, accompanied by an Actual Cost Certificate, and by executed Title Documents for the transfer of the Acquisition Improvement where necessary. In the event that the Local Agency Engineer finds that the supporting paperwork submitted by the Developer fails to demonstrate the required relationship between the subject Actual Cost and eligible work, the Local Agency Engineer shall advise the Developer that the determination of the Actual Cost (or the ineligible portion thereof) has been disallowed and shall request further documentation from the Deve loper. If the further documentation is still not adequate, the Local Agency Engineer may revise the Actual Cost Certificate to delete any disallowed items and the determination shall be final and conclusive.
Certain soft costs for the Acquisition Improvements, such as civil engineering, may have been incurred pursuant to single contracts that include work relating also to the private portions of the Project. In those instances, the total costs under such cont racts will be allocated to each Acquisition Improvement as approved by the Local Agency Engineer. Where a specific contract has been awarded for design or engineering work relating solely to an Acquisition Improvement, one hundred percent (100%) of the co sts under the contract will be allocated to that Acquisition Improvement. Amounts allocated to an Acquisition Improvement will be further allocated among the Eligible Portions of that Acquisition Improvement, if any, in the same proportion as the amount t o be reimbursed for hard costs for each Eligible Portion bears to the amount to be reimbursed for hard costs for the entire Acquisition Improvement. Costs will be allocated to each Acquisition Improvement as approved by the Local Agency Engineer. The cos ts of certain environmental mitigation required to mitigate impacts of the public and private portions of the Project will be allocated to each Acquisition Improvement as approved by the Local Agency Engineer.
In the event that the Actual Cost is in excess of the Available Amount, the Local Agency shall withdraw the Available Amount from the Acquisition Account and transfer said amount to the Developer. In the event that the Actual Cost is less than the Available Amount, the Local Agency shall withdraw an amount from the Acquisition Account equal to the Actual Cost, and shall transfer said amount to the Developer. Any amounts then remaining in the Acquisition Account shall be applied as provided in Section 1.03.
In no event shall the Local Agency be required to pay the Developer more than the amount on deposit in the Acquisition Account at the time such payment is requested.
Section 2.04. Conditions Precedent to Payment of Acquisition Price .
Payment to the Developer or its designee of the Acquisition Price for an Acquisition Improvement from the Acquisition and Construction Fund shall in every case be
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conditioned first upon the determination of the Local Agency Engineer, pursuant to Section 2.03, that the Acquisition Improvement satisfies all Local Agency regulations and ordinances and is otherwise complete and ready for acceptance by the Local Agency, and shall be further conditioned upon satisfaction of the following additional conditions precedent:
(a) The Developer shall have provided the Local Agency with lien releases or other similar documentation satisfactory to the Local Agency Engineer as evidence that none of the property (including any rights -of-way or other easements necessary for the operation and maintenance of the Acquisition Improvement, to the extent not already publicly owned) comprising the Acquisition Improvement, and the property which is subject to the [assessments/Special Taxes] of the District, is not subject to any prospective mechanics lien claim respecting the Acquisition Improvements. (b) All due and payable property taxes, and installments of [assessments/Special Taxes] shall be current on property owned by the Developer or under option to the Developer that is subject to the lien of the District. (c) The Developer shall certify that it is not in default with respect to any loan secured by any interest in the Project.
(d) The Developer shall have provided the Local Agency with Title Documents needed to provide the Local Agency with title to the site, right -of-way, or easement upon which the subject Acquisition Improvements are situated. All such Title Documents shall be in a form acceptable to the Local Agency (or applicable governmental agency) and shall convey Acceptable Title. The Developer shall provide a policy of title insurance as of the date of transfer in a form acceptable to the Local Agency Engineer insuring the Local Agency as to the interests acquired in connection with the acquisition of any interest for which such a policy of title insurance is not required by another agreement between the Local Agency and the Developer. Each title insurance policy required hereunder shall be in the amount equal to or greater than the Acquisition Price.
Section 2.05. SCIP Requisition. Upon a determination by the Local Agency Engineer to pay the Acquisition Price of the Acquisition Improvements pursuant to Section
2.04, the Local Agency Engineer shall cause a SCIP Requisition to be submitted to the Program Administrator. The Program Administrator will review the SCIP Requisition and forward it with instructions to the SCIP Trustee and the SCIP Trustee shall make payment directly to the Developer of such amount pursuant to the SCIP Trust Agreement. The Local Agency and the Developer a cknowledge and agree that the SCIP Trustee shall make payment strictly in accordance with the SCIP Requisition and shall not be required to determine whether or not the Acquisition Improvements have been completed or what the Actual Costs may be with respe ct to such Acquisition Improvements. The SCIP Trustee shall be entitled to rely on the SCIP Requisition on its face without any further duty of investigation.
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ARTICLE III
MISCELLANEOUS
Section 3.01. Indemnification and Hold Harmless . The Developer hereby assumes the defense of, and indemnifies and saves harmless the Local Agency, the Authority, and each of its respective officers, directors, employees and agents, from and against all actions, damages, claims, losses or expenses of every type and description to which they may be subjected or put, by reason of, or resulting from or alleged to have resulted from the acts or omissions of the Developer or its agents and employees in the performance of this Agreement, or arising out of any contract for the design, engineering and construction of the Acquisition Improvements or arising out of any alleged misstatements of fact or alleged omission of a material fact made by the Developer, its officers, directors, employees or agents to the Au thority's underwriter, financial advisor, appraiser, district engineer or bond counsel or regarding the Developer, its proposed developments, its property ownership and its contractual arrangements contained in the official statement relating to the SCIP f inancing (provided that the Developer shall have been furnished a copy of such official statement and shall not have objected thereto); and provided, further, that nothing in this Section 3.01 shall limit in any manner the Local Agency’s rights against any of the Developer’s architects, engineers, contractors or other consultants. Except as set forth in this Section 3.01, no provision of this Agreement shall in any way limit the extent of the responsibility of the Developer for payment of damages resulting from the operations of the Developer, its agents and employees. Nothing in this Section 3.01 shall be understood or construed to mean that the Developer agrees to indemnify the Local Agency, the Authority or any of its respective officers, directors, employees or agents, for any negligent or wrongful acts or omissions to act of the Local Agency, Authority, its officers, employees, agents or any consultants or contractors.
Section 3.02. Audit. The Local Agency shall have the right, during normal business hours and upon the giving of ten days’ written notice to the Developer, to review all books and records of the Developer pertaining to costs and expenses incurred by the Developer (for which the Developer seeks reimbursement) in constructing the Acquisition Improvements.
Section 3.03. Cooperation. The Local Agency and the Developer agree to cooperate with respect to the completion of the SCIP financing for the Acquisition Improvements. The Local Agency and the Developer agree to meet in good faith to resolve any differences on future matters whi ch are not specifically covered by this Agreement.
Section 3.04. General Standard of Reasonableness . Any provision of this Agreement which requires the consent, approval or acceptance of either party hereto or any of their respective employees, officers or agents shall be deemed to require that such consent, approval or acceptance not be unreasonably w ithheld or delayed, unless such provision expressly incorporates a different standard. The foregoing provision shall not apply to provisions in the Agreement which provide for decisions to be in the sole discretion of the party making the decision.
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Section 3.05. Third Party Beneficiaries . The Authority and its officers, employees, agents or any consultants or contractors are expressly deemed third party beneficiaries of this Agreement with respect to the provisions of Section 3.01. It is expressly agreed that, except for the Authority w ith respect to the provisions of Section
3.01, there are no third-party beneficiaries of this Agreement, including without limitation any owners of bonds, any of the Local Agency’s or the Developer’s contractors for the Acquisition Improvements and any of the Local Agency’s, the Authority's or the Developer’s agents and employees.
Section 3.06. Conflict with Other Agreements . Nothing contained herein shall be construed as releasing the Developer or the Local Agency from any condition of development or requirement imposed by any other agreement between the Local Agency and the Developer, and, in the event of a conflicting provision, such other agreement shall prevail unless such conflicting provision is specifically waived or modified in writing by the Local Agency and the Developer.
Section 3.07. Notices. All invoices for payment, reports, other communication and notices relating to this Agreement shall be delivered (via mail or electronic mail) to:
If to the Local Agency:
City of Cathedral City
[Address to come]
[Email to come]
If to the Developer:
[Developer]
[Address to come]
[Email to come]
Either party may change its address by giving notice in writing to the other party.
Section 3.08. Severability. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible.
Section 3.09. Governing Law . This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California.
Section 3.10. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement.
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Section 3.11. Singular and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine.
Section 3.12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original.
Section 3.13. Successors and Assigns. This Agreement is binding upon the heirs, assigns and successors -in-interest of the parties hereto. The Developer may not assign its rights or obligations hereunder, except to successors-in-interest to the property within the District, without the prior written consent of the Local Agency.
Section 3.14. Remedies in General. It is acknowledged by the parties that the Local Agency would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or the application thereof, other than for the payment to the Developer of any (i) moneys owing to the Developer hereunder, or (ii) moneys paid by the Developer pursuant to the provisions hereof which are misappropriated or improperly obtained, withheld or applied by the Local Agency.
In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that the Local Agency shall not be liable in damages to the Developer, or to any assignee or transferee of the Developer other than for the payments to the Developer specified in the preceding paragraph. Subject to the foregoing, the Developer covenants not to sue for or claim any damages for any alleged breach of, or dispute which arises out of, this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written above.
CITY OF CATHEDRAL CITY
By:
Authorized Officer
[DEVELOPER],
a [here indicate type of legal entity]
By:
Signature
Print Name
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Exhibit A to the Acquisition Agreement
DESCRIPTION OF ACQUISITION IMPROVEMENTS AND BUDGETED AMOUNTS
[To be completed based on Final Engineer’s Report/developer’s budget and cash flows]
Funding includes amounts for incidental costs associated with the capital improvements, including, but not limited to, contingency, design, engineering, and construction management.
ACQUISITION IMPROVEMENTS TOTAL AMOUNT*
[_].................................................................................................. $[_] [_].................................................................................................. $[_]
* Estimated. Acquisition Price will be determined based on Actual Cost as further described in this Acquisition Agreement.
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Exhibit B to the Acquisition Agreement
FORM OF SCIP REQUISITION
To: BLX Group LLC
SCIP Program Administrator
355 South Grand Avenue, Suite 2700
Los Angeles, California 90071
Attention: Vo Nguyen
Fax: 213-612-2499
Re: Statewide Community Infrastructure Program
The undersigned, a duly authorized officer of the CITY OF CATHEDRAL CITY hereby requests a withdrawal from the [DEVELOPER] ACQUISITION ACCOUNT, as follows:
Request Date: [Insert Date of Request]
Name of Developer: [Developer]
Withdrawal Amount: [Insert Acquisition Price]
Acquisition Improvements: [Insert Description of Acquisition Improvement(s) from Ex. A] Payment Instructions: [Insert Wire Instructions or Payment Address for Developer]
The undersigned hereby certifies as follows:
1. The Withdrawal is being made in accordance with a permitted use of such monies pursuant to the Acquisition Agreement, and the Withdrawal is not being made for the purpose of reinvestment.
2. None of the items for which payment is requested have been reimbursed previously from other sources of funds.
3. If the Withdrawal Amount is greater than the funds held in the Acquisition Account, the SCIP Program Administrator is authorized to amend the amount requested to be equal to the amount of such funds.
CITY OF CATHEDRAL CITY
By:
Title:
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EXHIBIT C TO THE RESOLUTION
ELIGIBLE FACILITIES AND FEES
Eligible facilities and fees that may be financed by a CFD formed by CSCDA through SCIP include all improvements and fees authorized under the Mello-Roos Act, including but not limited to the following:
Transportation Improvements
Eligible roadway improvements include, but are not limited to: acquisition of land and easements; roadway design; project management; bridge crossings and culverts; clearing, grubbing, and demolition; grading, soil import/export, paving (including slurry seal), and decorative/enhanced pavement concrete and/or pavers; joint trenches, underground utilities and undergrounding of existing utilities; dry utilities and appurtenances; curbs, gutters, sidewalks, bike trails (including onsite and off -site), enhanced fencing, and access ramps; street lights, signalization, and traffic signal control systems; bus turnouts; signs and striping; erosion control; median and parkway landscaping and irrigation; entry monumentation; bus shelters, bus and transit improvements including transfer stations and regional public transit improvements; masonry walls; traffic control and agency fees; and other improvements related thereto.
Eligible improvements for the roads listed herein also include any and all necessary underground potable and recycled water, sanitary sewer, and storm drainage system improvements.
Water System Improvements
Authorized facilities include any and all water facilities designed to meet the needs of development within the CFD. These facilities include, but may not be limited to: water storage, treatment and distribution facilities including waterlines and appurtenances, gate valves, pressure reducing stations, flow meters, fire hydrants, and other improvements related thereto such as site clearing, grading and paving; curbs and gutters; booster pump stations & power; stand-by generators; site lighting, drainage, sanitary sewer, and water service; landscaping and irrigation; access gates, and fencing; and striping and signage.
Recycled Water System Improvements
Authorized facilities include any and all recycled water system facilities designed to meet the needs of development within the CFD. These facilities include, but may not be limited to: treatment and distribution facilities including pipelines and appurtenances, gate valves, flow meters, booster pump pressurization system, and other improvements related thereto - such as site clearing, grading and paving; curbs and gutters; booster pump stations; stand-by generators; site lighting, drainage, sanitary sewer , and water service; landscaping and irrigation; access gates, and fencing; and striping and signage.
Drainage System Improvements
Authorized facilities include any and all drainage and storm drain improvements designed to meet the needs of development within the CFD. These facilities include, but may not be limited to: excavation and grading, pipelines and appurtenances, outfalls an d water
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quality measures, detention/retention basins, drainage pretreatment facilities, drainage ways/channels, pump stations, landscaping and irrigation; access roads, gates, and fencing; and striping and signage and other improvements related thereto.
Wastewater System Improvements
Authorized facilities include any and all wastewater facilities designed to meet the needs of development within the CFD. These facilities include, but may not be limited to, pipelines and all appurtenances thereto; manholes; tie -in to existing main lines ; force mains; lift stations; upgrades to existing lift stations; odor-control facilities; and permitting related thereto; and related sewer system improvements.
Park, Parkway and Open Space Improvements
Authorized facilities include any and all improvements to parks, parkways and open space required for development within the CFD. These facilities include, but may not be limited to: grading, turf, shrubs and trees, landscaping irrigation, site lighting, drainage, sanitary sewer and water service, pedestrian and bicycle trails, protective fencing (including soundwalls), pedestrian/bicycle bridges, storm drain crossings, wetland mitigation, hawk mitigation for authorized facilities herein, access gates and fencing and related open space improvements. Authorized facilities include acquisition of any and all parkland as well as open space/bike trail/public access easements required for development within the CFD.
Electrical System Improvements
Authorized facilities include any and all electrical supply and distribution facilities designed to meet the needs of development within the CFD. These facilities include, but may not be limited to: design, distribution lines, vaults, conduit, trenching, transformers and installation of cabling.
School and Educational Facilities
Authorized facilities include classroom renovation, updates to school safety and security systems, technology improvements, energy efficiency improvements, school modernization and retrofitting, and new classroom and school construction as required for development within the CFD.
Development Impact Fees
Authorized facilities include the direct funding of any of the above referenced facility types for which the Local Agency collects a development impact fee.
Other Incidental Expenses and Bond Issuance Costs
In addition to the above facilities, other incidental expenses as authorized by the Mello - Roos Community Facilities Act of 1982, including, but not limited to, the cost of planning and designing the facilities (including the cost of environmental evaluatio n, remediation and mitigation); engineering and surveying; construction staking; utility relocation and demolition costs incidental to the construction of the public facilities; costs of
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project/construction management; costs (including the costs of legal services) associated with the formation of the CFD; issuance of bonds (if any); determination of the amount of taxes; collection of taxes; payment of taxes; costs of calculating and provi ding reimbursements from one-time special tax payments; or costs otherwise incurred in order to carry out the authorized purposes of the CFD; and any other expenses incidental to the formation and implementation of the CFD and to the construction, completi on, inspection and acquisition of the authorized facilities.
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EXHIBIT D TO THE RESOLUTION
FORM OF INCREASED DEMANDS CERTIFICATE
To: California Statewide Communities Development Authority Re: Statewide Community Infrastructure Program – Community Facilities District for [Project]
The undersigned, a duly authorized officer of the CITY OF CATHEDRAL CITY (the “Local Agency”) hereby certifies that the public capital improvements and development impact fees identified below are necessary to meet increased demands placed upon the Local Agency as a result of development within the proposed community facilities district for the [Project]:
[List improvements/fees here]
CITY OF CATHEDRAL CITY
By:
Title:
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EXHIBIT E TO THE RESOLUTION
CITY OF CATHEDRAL CITY CONTACTS FOR SCIP PROGRAM
Primary
Contact
Name:
Title:
Kevin Biersack
Financial Services Director
Mailing Address: 68700 Avenida Lalo Guerrero, Cathedral City, CA 92234 Delivery Address (if different):
E-mail:
Telephone:
[email protected]
760-770-0378
Secondary Contact
Name: London Pyle
Title: Senior Accountant
Mailing Address: 68700 Avenida Lalo Guerrero, Cathedral City, CA 92234 Delivery Address (if different):
E-mail:
Telephone:
[email protected]
760-770-0321
[Add additional contacts as needed]
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CERTIFICATION OF RESOLUTION
I, the undersigned, the duly appointed and qualified City Clerk of the City of Cathedral City, do hereby certify that the foregoing Resolution No. 20 24-XX was duly adopted at a regular meeting of the City Council of the City of Cathedral City duly and regularly held at the regular meeting place thereof on the 2 8th day of February 2024 of which meeting all of the members of said City Council had due notice and at which a majority thereof were present.
An agenda of said meeting was posted at least 72 hours before said meeting at Cathedral City City Hall, and at least 120 hours with the local newspaper, i.e., the Desert Sun, as well as on line at www.cathedralcity.gov, locations freely accessible to members of the public, and a brief description of said resolution appeared on said agenda.
I have carefully compared the foregoing with the original minutes of said meeting on file and of record in my office, and the foregoing is a full, true and correct copy of the original resolution adopted at said meeting and entered in said minutes.
Said resolution has not been amended, modified or rescinded since the date of its adoption and the same is now in full force and effect.
Dated: _____________ ____________________
City Clerk
City of Cathedral City
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Statewide Community Infrastructure Program
A Program of the California Statewide Communities Development Authority
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Statewide Community Infrastructure Program (SCIP)
Any County / Special District / City can participate in SCIP to provide the local agency the means of offering competitive financing to all developers as a turn key solution, minimizing local agency staff time.
The bonds are issued by the California Statewide Communities Development Authority (CSCDA) which is a Joint Powers Authority sponsored by the California State Association of Counties and League of California Cities to promote bond programs of public benefit to its members.
These are 30 year fixed-rate tax-exempt bonds secured by property assessments.
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What Can be Financed through the Program?
Fees for infrastructure to be owned by public agency
Does not include school, housing, fire, and police fees Improvements identified in the 1913 / 1915 Assessment
Act, including but not limited to, are listed below:
Eligible Fees
Eligible Improvements
Street lighting
Parking
Landscaping
Sewer and Pipelines
Parks and Parkways
Bridges and Thoroughfares
Bicycle and Pedestrian Trails
Open Space and Greenbelts
Street and Roadways
Freeway Interchanges
Pedestrian Malls
Sidewalks
Storm Drainage
Flood Control
Water Supply
Gas Supply
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Local Agency Requirements
Must be a Member of CSCDA (no cost to join and CSCDA currently has 532 members) Adopt SCIP Resolution consenting to use of the SCIP Program (again no cost to join) a) Sample Resolutions and Agreements are contained in the SCIP Manual and proposal by SCIP Legal Counsel
Developers can submit funding applications online but they must be signed by the Local Agency prior to the Public Hearing
Will review and verify eligible fees and improvements contained in the Engineer's Report prepared by SCIP
Will execute an acquisition agreement to reimburse developer for public improvements, the form of which is included with the SCIP Resolution Funds will be spent in accordance with federal tax law Approve requisition of funds
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SCIP Tasks and Responsibility Schedule
Admin. includes:
Tax Roll
Lot Splits
Rebate
Continuing
Disclosure
Foreclosure
Developers
Local Agencies
Pass SCIP
Resolution &
Approve
Applications
Conduct the
proceedings
Issue Bonds
Administering
the District
Entitlements
Payment of
Fees or
Completion of
Improvements
Bond
Payments
(Investor
Risk)
Developers
and Local
Agencies
Developers
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Questions
Contact
James Hamill
Managing Director
CSCDA
(925) 476-5644
[email protected]
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Staff Report
City Council
Item No. 6.F
Meeting Date: February 28, 2024
From: Sandra Molina, Deputy Director of Development Services Title: Professional Services Contract with Terra Nova Planning and Research, Inc. for Messenger Project
City Council
RECOMMENDATION:
To approve a professional services agreement with Terra Nova Planning and Research, Inc. for planning and environmental services related to the Messenger development project and authorize the City Manager to execute the agreement with Terra Nova Planning and Research, Inc. and authorize the City Manager to execute a reimbursement agreement with Developer for the cost of services.
BACKGROUND/DISCUSSION:
The North City Extended Specific Plan (NCESP) encompasses approximately 590 acres of land north of the I-10 Freeway, primarily west of Bob Hope Drive. Development Services Zoning districts within the specific plan include Mixed Use Urban, Mixed Use Neighborhood, Light Industrial and Open Space.
Staff have met several times with Bill Messenger and Marco Rosetti (Developer), who are proposing to develop their properties such that several applications, amendments to the zoning and general plan land use maps, amendment to the specific plan and an environmental impact report (EIR) will be required. The City’s adopted housing element also identified affordable housing sites within their properties that must be considered to maintain the housing element’s certification.
Staff included Terra Nova Planning and Research Inc. in the meetings as Terra Nova prepared the City’s General Plan Update, General Plan EIR and Housing Element, which has been certified by HCD. As such, Terra Nova’s participation in the meeting was invaluable in identifying the path forward for the Developer.
Pursuant to Section 3.12.160.C of the Municipal Code, the City Council may authorize the execution of the professional services contract without obtaining proposals. Given Terra Nova’s work familiarity with the City, their experience preparing the City’s general plan and general plan EIR, and their understanding of Developer’s proposal , Staff is recommending that the City Council approve a professional services contract with Terra
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Nova to provide staff support in the performance of the planning and environmental work for the Developer’s project.
Terra Nova has provided a scope of work for the project and a cost estimate in the amount of $346,190. Staff has shared the cost estimate with the Developer and the Developer agrees with the cost proposal.
Reimbursement Agreement
A reimbursement agreement has been prepared between the City and Developer for the reimbursement of costs associated with Terra Nova’s services as itemized in the contract agreement . The reimbursement agreement requires Developer to make a $50,000 security deposit. All invoices submitted to the City by Terra Nova will be provided to the Developer for payment. The Developer will pay Terra Nova directly. The security deposit will remain in place . In the event the City draws from the deposit, the Developer must reimburse the City to make the deposit whole at $50,000.
Staff recommends that the City Council authorize the City Manager to execute the agreement.
FISCAL IMPACT:
The service contract for Terra Nova is not to exceed $346,190. The reimbursement agreement will ensure the Developer pays for services incurred by Terra Nova.
Additionally, Developer’s applications are subject to application filing fees to cover the costs of review by City departments. The filing fees will be deposit based and staff costs will be billed to a separate City deposit account.
FIVE-YEAR STRATEGIC PLAN:
This action will further Goal A – Serve the Community with Pride and Dedication
Objective – Through diversity, equity and inclusion driven employee programs and employee experiences, Cathedral City is the employer of choice with a workforce that is engaged, motivated and respected public stewards.
A-1 – Study the need to reallocate staff resources including the use of contracts.
ATTACHMENTS:
Terra Nova Professional Services Agreeemnt - Messenger Project CON - Cost Recovery Reimbursement Agmt Form_(2-21_v.2)
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AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
TERRA NOVA PLANNING & RESEARCH, INC.
This Agreement for Services (“Agreement”) is entered into as of this 28th day of February 2024 by and between the City of Cathedral City, a municipal corporation (“City”) and Terra Nova Planning & Research, Inc., a California Corporation (“Contractor”). City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by direct negotiation the performance of the services defined and described particularly in Section 2 of this Agreement.
B. Contractor, following submission of a quote for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particularly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 20 "Termination of Agreement" of this Agreement, the Term of this Agreement is for eighteen (18) months commencing on the date first ascribed above.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE.
Contractor agrees to perform the services set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Service Provider shall be deemed to be in Default of this Agreement. The City, in its sole discretion, ma y choose not to enforce the Default provisions of this Agreement and may instead allow Service Provider to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
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Contractor shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addition to or outside of the Services unless such additional services are authorized in advance and in writing in accordance with Section 26 “ Administration and Implementation” or Section 28 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed three hundred thousand and one hundred and ninety dollars ($346,190), unless additional comp ensation is approved in writing in accordance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement.
(b) Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred during the preceding month. The invoice shall detail charges by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and subcontractor contracts. Subcontractor charges shall be detailed by the following categories: labor, travel, materials, equipment and supplies. If the compensation set forth in subsection (a) and Exhibit “B” include payment of labor on an hourly basis (as opposed to labor and materials being paid as a lump sum), the labor category in each invoice shall include detailed descriptions of task performed and the amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disputed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, t he original invoice shall be returned by City to Contractor for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, City will use its best efforts to cause Contractor to be paid within thirty (30) days of receipt of Contractor’s correct and undisputed invoice. (d) Payment to Contractor for work performed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Contractor’s work under this Agreement, either during performance or when completed. City shall reject or finally accept Contractor’s work within sixty (60) days after submitted to City. City shall reject work by a timely written explanation, otherwise Contractor’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance o f any
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of Contractor’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 16 “Indemnification” and Section 17 “Insurance.”
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this Agreement, Contractor’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, s tudies, surveys, reports, data, notes, computer files, files or other documents.
All final work product developed by Contractor in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor shall turn over to City all such final work product if paid for by the City. This provision specifically excludes Contractors’ work notes and drafts, which are owned by Contractor, not City.
SECTION 7. CONTRACTOR'S BOOKS AND RECORDS.
(a) Contractor shall maintain any and all documents and records demonstrating or relating to Contractor’s performance of the Services. Contractor shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, or other documents or records evidencing or relating to the Services, including expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services provided by Contractor pursuant to this Agreement. Any and all such documents or records shall be maintained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. In accordance with California Government Code Section 8546.7, if the total compensation in Section 4 exceeds ten thousand dollars ($10,000.00), this Agreement and the Contractor's books and records related to this Agreement shall be subject to the examination and audit of the State Auditor, at the
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request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.
(b) Any and all records or documents required to be maintained pursuant to this section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Contractor’s addre ss indicated for receipt of notices in this Agreement.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Contractor’s business, City may, by written request, require that custody of such documents or records be given to the City. Access to such documents and records shall be granted to City, as well as to its successors -in-interest and authorized representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a) Contractor is and shall at all times remain a wholly independent contractor and not an officer, employee or agent of City. Contractor shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise.
(b) The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Contractor or any of Contractor’s personnel.
Contractor shall not at any time or in any manner represent that Contractor or any of Contractor’s personnel are in any manner officials, officers, or employees of City. (c) Neither Contractor, nor any of Contractor’s personnel shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Contractor expressly waives any claim Contractor, its officers, employees, agents or subcontractors, may have to any such rights. Contractor’s indemnity obligations in Section 16 “Indemnification” of this Agreement include the obligation to indemnify the City from and against any liability that may arise related to claims that Contractor, its officers, employees, agents or subcontractors, are entitled to retirement, health care or any other benefits that accrue to City employees. This provision shall survive the expiration or earlier termination of this Agreement.
SECTION 9. STANDARD OF PERFORMANCE.
(a) Contractor represents and warrants that it has the qualifications, experience and facilities necessary to properly perform the Services required under this Agreement in a thorough, competent and professional manner. Contractor shall at all times faithfully, competently and to the best of its ability, experience and talent, perform all Services. In meeting its obligations under this Agreement, Contractor shall employ, at a minimum,
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generally accepted standards and practices utilized by persons engaged in providing services similar to the Services required of Contractor under this Agreement. In addition to the general standards of performance set forth this section, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Contractor’s work under this Agreement. Where there is a conflict between a general and a specific standard of performanc e or performance criteria, the specific standard or criteria shall prevail over the general. (b) Contractor warrants that (1) it has thoroughly investigated and considered the work to be performed, (2) it has investigated the issues, regarding the scope of services to be provided, (3) it has carefully considered how the work should be performed, and (4) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Contractor shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Contractor shall obtain any and all licenses, permits and authorizations necessary to perform the Services set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or i n equity, as a result of any failure of Contractor to comply with this section.
SECTION 11. PREVAILING WAGE LAWS
It is the understanding of City and Contractor that California prevailing wage laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated thereunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work perform ed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.
SECTION 12. NONDISCRIMINATION.
Contractor shall not discriminate, in any way, against any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status in connection with or related to the performance of this Agreement.
SECTION 13. UNAUTHORIZED ALIENS.
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of the Services, and
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should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
SECTION 14. CONFLICTS OF INTEREST.
(a) Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of the Services. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Contractor agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. (b) City understands and acknowledges that Contractor is, as of the date of execution of this Agreement, independently involved in the performance of non -related services for other governmental agencies and private parties. Contractor is unaware of any stated position of City relative to such projects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (c) City understands and acknowledges that Contractor will perform non - related services for other governmental agencies and private Parties following the completion of the Services under this Agreement. Any such future service shall not be considered a conflict of interest for purposes of this section. (d) City may determine that Contractor must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests. If such a determination is made, Contractor shall file the subject Form 700 with the City Clerk’s Office pursuant to the written instructions provided by the Office of the City Clerk within ten (10) days of the request.
SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION. (a) All information gained or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or already known to Contractor. Contractor shall not release or disclose any such information or work product to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
(b) Contractor, its officers, employees, agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions, resp onse to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provided Contractor gives City notice of such court order or subpoena.
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(c) If Contractor, or any officer, employee, agent or subcontractor of Contractor, provides any information or work product in violation of this Agreement, then City shall have the right to reim bursement and indemnity from Contractor for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Contractor’s conduct.
Contractor shall promptly notify City should Contractor, its officers, employees, agents or subcontractors, be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admiss ions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed thereunder. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or similar proceeding. Contractor agrees to cooperate fully with City and to provide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to control, direct, or rewrite said response. Contractor shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
SECTION 16. INDEMNIFICATION.
(a) Indemnification for Professional Liability. Where the law establishes a professional standard of care for Contractor’s services, to the fullest extent permitted by law, Contractor shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threaten ed, including attorneys ’ fees and costs, court costs, interest, defense costs, and expert witness fees) arise out of, are a consequence of, or are in any way attributable to, in whole or in part, any negligent or wrongful act, error or omission of Contractor, or by any individual or entity for which Contractor is legally liable, including but not limited to off icers, agents, employees or sub contractors of Contractor, in the performance of professional services under this Agreement. Notwithstanding the foregoing, to the extent that the Consultant’s services are subject to California Civil Code Section 2782.8, the above indemnity, including the cost to defend, shall be limited to the extent required by Civil Code Section 2782.8.
(b) Indemnification for Other than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Contractor shall indemnify, protect, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened , including attorneys’ fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in
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whole or in part, the performance of this Agreement by Contractor, or by any individual or entity for which Contractor is legally liable, including but not limited to off icers, agents, employees or subcontractors of Contractor.
(c) Indemnification from Subcontractors. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Contractor in the performance of this Agreement naming the Indemnified Parties as additional indemnitees. In the event Contractor fails to obtain such indemnity obligations from others as required herein, Contractor agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on the successors, assigns or heirs of Contractor and shall survive the termination of this Agreement or this section.
(d) City’s Negligence . The provisions of this section do not apply to claims occurring as a result of City’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 17. INSURANCE.
Contractor agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies shall be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Contractor agrees to provide City with copies of required policies upon request.
SECTION 18. ASSIGNMENT.
The expertise and experience of Contractor are material considerations for this Agreement. City has an interest in the qualifications and capability of the persons and entities who will fulfill the duties and obligations imposed upon Contractor under this Agreement. In recognition of that interest, Contractor shall not assign or transfer this Agreement or any portion of this Agreement or the performance of any of Contractor’s duties or obligations under this Agreement without the prior written consent of the City.
Any attempted assignment shall be ineffective, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement pursuant to Section 20 “Te rmination of Agreement.” City acknowledges, however, that Contractor, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 19. CONTINUITY OF PERSONNEL.
Contractor shall make every reasonable effort to maintain the stability and continuity of Contractor’s staff and sub contractors, if any, assigned to perform the Services. Contractor shall notify City of any changes in Contractor’s staff and
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subcontractors, if any, assigned to perform the Services prior to and during any such performance.
SECTION 20. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving thirty (30) days written notice of termination to Contractor. In the event such notice is given, Contractor shall cease immediately all work in progress. (b) Contractor may terminate this Agreement for cause at any time upon thirty (30) days written notice of termination to City.
(c) If either Contractor or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Contractor, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Contractor or City, all property belonging exclusively to City which is in Contractor’s possession shall be returned to City.
Contractor shall furnish to City a final invoice for work performed and expenses incurred by Contractor, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
SECTION 21. DEFAULT.
In the event that Contractor is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Contractor’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
Contractor shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Contractor. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods,
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epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Contractor in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 24. NOTICES.
All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by certified mail, postage prepaid and return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: City Clerk
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Contractor: Terra Nova Planning & Research, Inc.
Attn: Nicole Sauviat Criste
42635 Melanie Place, Suite 101
Palm Desert, CA. 92211
Notice shall be deemed effective on the date personally delivered or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 25. AUTHORITY TO EXECUTE.
Each of the signatories hereto represents and warrants that he or she is competent and authorized to enter into this Agreement on behalf of the Party for whom he or she purports to sign. Each Party hereto agrees to defend, indemnify, and hold harmless the other Parties hereto against all claims, suits, actions, and demands, including necessary expenses of investigation and reasonable attorneys' fees and costs, arising out of claims that its signatory was not competent or so authorized to execute this Agreement.
SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under the City of Cathedral City Municipal Code and its adopted policies and procedures.
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SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if it does not exceed the amount that may be approved administratively pursuant to the City Municipal Code. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void. The City’s City Manager may, but is not required to, make minor amendments not affecting substantive terms without further authorization from the City Council. The City Council hereby authorizes the City Manager to execute any such amendments as required by this Agreement or that do not otherwise reduce City’s rights under this Agreement. All other amendments shall be approved by the City Council.
SECTION 29. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work by Contractor shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 30. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 31. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or wri tten, or entered into between Contractor and City prior to the execution of this Agreement. No statements, representations or other agreements, whether oral or written,
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made by any Party which are not embodied herein shall be valid and binding.
SECTION 33. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).
SECTION 34. ELECTRONIC SIGNATURE
The Parties agree that, in accordance with the City’s Electronic Signature Use Policy, adopted on August 10, 2023, and as amended thereafter, the Parties may use electronic signatures to execute this Agreement. Any use of electronic signatures to execute this Agreement shall comply with the City’s Electronic Signature Use Policy, and such signatures shall have the same force and effect as if this Agreement were executed by hand. Contractor acknowledges that it has had an opportunity to request and review the City’s Electronic Signature Use Policy, and Contractor agrees to comply with the Electronic Signature Use Policy. Contractor agrees to indemnify, defend, and hold the City harmless from any claim, damage, or liability associated with transmitting an electronic signature or an electronically signed record by electronic transmission.
SECTION 35. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
[SIGNATURES ON FOLLOWING PAGE]
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CITY OF CATHEDRAL CITY
___________________________
Charles McClendon
City Manager
ATTEST:
___________________________
Tracey R. Hermosillo
City Clerk
APPROVED AS TO FORM
_______________________________
Eric Vail
City Attorney
TERRA NOVA PLANNING AND
RESEARCH, INC.
Nicole Sauviat Criste
Principal
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EXHIBIT "A"
SCOPE OF SERVICES
A. Project Initiation and Applicant Meetings: We expect that additional pre-application meetings are likely, and that meetings during the process will be required both with the applicant and with City staff. Additional internal meetings will be required with Terra Nova staff as the documents are prep ared (40 hours Principal/20 hours Senior/20 hours Assistant).
B. Application Review and Processing: Terra Nova staff (Principal and Senior level) will review applications for completeness issue a incomplete/complete letter (2 cycles anticipated); analyze the plans for conformance with General Plan and Zoning standards; coordinate intra - and inter -city review using the City’s established channels; undertake SB 18 and AB 52 Tribal Consultation; issue design correction letters (2 cycles anticipated); prepare hearing notices, staff reports, conditions of approval, resolutions and ordinances, as required for the Planning Commission and City Council.
C. EIR Exhibits: Prepare appropriate base maps to establish a common mapping reference for all environmental analysis. The source of mapping will include plans secured from the City, General Plan and Zoning Maps, USGS quad maps, aerial photos and other appropriate base mapping. In addition, incorporate design team graphics into the EIR where necessary to illustrate the project and its impacts.
D. Notice of Preparation : Terra Nova will prepare a draft CEQA -compliant Initial Study/Notice of Preparation based on the project description and available technical data. The Initial Study will be conducted on a categorical basis to assure that all areas requiring detailed analysis have been identified, and those areas where no impact will occur are addressed so that they do not require analysis in the EIR. A Notice of Preparation (NOP) and Notice of Completion (NOC) will also be prepared. Comments on the NOP will be addressed in the Draft EIR.
E. Air Quality & GHG Analysis: Terra Nova will prepare a comprehensive air quality analysis for construction and operational moving and stationary emissions, as well as fugitive dust (PM10) emissions associated with grubbing and site grading, truck and other construction vehicle trips. Emissions associated with post -construction operations will also be analyzed in conformance with the MDAQMD Environmental
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Handbook and local Air Quality Guidelines. Project potential for greenhouse gas (GHG) emissions will also be analyzed and mitigation measures developed, as appropriate. The analysis will be conducted for each of three (3) project alternatives.
F. Water Supply Assessment: Terra Nova will prepare a Water Supply Assessment consistent with the requirements of SB 610, including an estimate of the project’s build out water demand, assessment of water supplies, and assessment of the ability of the provider to supply water in normal, single dry and multiple dry years.
Terra Nova will coordinate with Desert Water Agency to process the document and secure approval prior to the release of the EIR.
G. Cultural Resources Analysis: Terra Nova will contract for and manage a cultural resources analysis within the project area. The cultural/historic resources analysis report will include the following tasks:
• Conduct an Eastern Information Center (EIC) records search at the University of California, Riverside (UCR).
• Conduct on site investigation of potential cultural resources. • The California Native American Heritage Commission (NAHC) and local tribes will be contacted for a Sacred Lands File search and consultation with Native American tribes.
• Previously recorded sites (7) will be identified, their status ascertained, and updates to EIC records prepared.
• Recommendations for any further cultural study, planning, and mitigation will be summarized in the report.
H. Biological Resources Analysis: Terra Nova will contract for and manage a general biological resources analysis within the project area. A burrowing owl survey may be required if viable habitat for the species is identified on the site. This task is not included in this scope of work, and will be scoped and budgeted only if necessary.
The general biological resources analysis report will include the following tasks:
• On site investigation of current conditions on the project site and inventory of species identified.
• Review of State databases for species likely to inhabit the project site. • Preparation of maps and exhibits supporting the findings. • Recommendations for any further species-specific study, planning, or environmental effort will be made.
I. Jurisdictional Delineation: In order to determine the potential impacts to waters of the State and waters of the US associated with washes on the property, a
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jurisdictional delineation will be completed. The tasks associated with this effort will include:
• On site assessment and delineation to identify soils, vegetation and hydrologic conditions on the site.
• Review of State databases for species likely to inhabit the project site. • Preparation of maps and exhibits supporting the findings. • Mapping and quantification of impacted waters will be integrated into a report which includes temporary and impact impacts.
J. Traffic Impact Analysis: Terra Nova will contract for and will manage a traffic impact analysis (TIA). Streets and intersections to be analyzed will be selected in consultation with the City Traffic Engineer. The following summarizes the TIA scope of work.
• Develop scoping agreement. For purposes of this proposal, it has been assumed that scoping will result in a need to analyze 15 area intersections and 8 roadway segments.
• Conduct weekday morning and evening turning movement counts for 15 intersections and 24-hour counts for 8 segments.
• Field verify existing traffic controls, approach lanes at intersections, and through lanes at segments.
• Estimate trip generation and distribution for project and surrounding future development (up to 30 cumulative development projects). • Assess intersection capacity and Level of Service (LOS) for 15 intersections and up to 5 project driveways for:
• Existing
• Existing Plus Ambient Growth Plus Project (E+A+P)
• Existing Plus Ambient Growth Plus Cumulative Projects Plus Project (E+A+C+P)
• Horizon Year 2045 with Current General Plan Uses
• Horizon Hear 2045 With and Without Project
• Complete traffic signal warrant analysis for unsignalized intersections for each of the scenarios.
• Conduct a queuing analysis for Caltrans interchanges in the project area and address deficiencies, if any. Also conduct queuing analysis for project driveways to determine location and length of turn pockets.
• Complete a Vehicle Miles Traveled (VMT) analysis which complies with the County’s VMT Policy (as amended, December 2020), including running the RivTAM model with updated socio -economic data for base year and project year.
• Recommendation will be made for mitigation measures, which may include
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roadway sizing recommendations, specific intersection controls, and/or special treatments such as dedicated turn pockets.
K. EIR Research and Documentation: Research, document and map environmental resources and hazards for integration into the EIR, as appropriate. Each analysis category will be briefly addressed in the Environmental Setting discussion, and issues requiring further analysis will be fully analyzed in the impacts and mitigation section of the EIR. Mitigation measures will be included on a categorical basis, as will cumulative impacts. The goal is to provide comprehensive analysis and mitigation, which utilizes the most up-to-date data and information available in a manner compliant with CEQA, and as much detail as possible.
L. Project Alternatives: In addition to the “Preferred Alternative” project, Terra Nova will also develop and analyze up to three (3) additional alternative projects, including a “No Project” alternative. Alternative projects will be reviewed with City staff, and impacts associated with each will be analyzed on a categorical basis.
M. Mandatory CEQA Analysis : Terra Nova will prepare other mandatory CEQA discussions, including Growth -Inducing Impacts, Unavoidable Environmental Impacts, Short-Term Use Versus Long -Term Productivity, and other mandatory CEQA EIR discussions.
N. EIR Screencheck Review: Terra Nova will prepare a screencheck draft of the EIR for review by City staff prior to transmittal. Terra Nova will confer with City staff regarding comments, and will amend the screencheck draft accordingly. One review round is included in this proposal. If additional reviews are required, they will be billed on a time and materials basis.
O. Notice of Availability: Terra Nova will prepare the Notice of Completion and Notice of Availability of the EIR in conformance with California Public Resources Code, and coordinate with City to publish and post.
P. Final EIR Drafting: Terra Nova will collect comment letters received on the Draft EIR, and will restate comments and prepare responses to comments, conferring with City staff before finalizing responses. The level of public comment is not known at this time. We have assumed 40 hours for Principal, and 20 hours for Senior staff to complete the response to comments.
Q. Document Distribution and Noticing: Terra Nova will distribute the NOP/IS and EIR
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documents to the City’s responsible and trustee agencies, in a manner that is compliant with CEQA and the City’s requirements. This would also include posting to the County Clerk and SCH websites to initiate comment periods. Upon completion of the Final EIR, Terra Nova will transmit this document to all commenting agencies/parties, as well as to those who have requested a copy from the City. Said transmittal must be accomplished at least 10 days prior to EIR certification by the City Council.
R. Findings & Statement of Overriding Considerations: Although not yet known, it is expected that some impacts of this project will result in significant and unavoidable impacts. If that is the case, Terra Nova will prepare Findings and Statement of Overriding Considerations for the project in a format acceptable to the City Attorney. The findings will be provided to the City Council for their certification of the EIR.
S. Hearings: Terra Nova staff will prepare for, attend and present the project and CEQA review at two hearings (Planning Commission and City Council).
T. NOD Preparation and Filing: Following approval of the environmental document, Terra Nova will prepare the Notice of Determination (NOD) and post it with the Clerk and SCH. Applicant will be responsible for CEQA filing and CDFW fees.
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EXHIBIT "B"
COMPENSATION
Task Amount
Applicant Meetings, Internal Meetings, etc. $13,300.00
Application Processing, Analysis, Staff Reports $16,500.00 NOP, Scoping Meeting, NOC, NOA, NOD $13,750.00
EIR Documentation and Drafting $66,500.00
EIR Alternatives Analysis $13,600.00
Response to Comments/Final EIR $11,000.00
Findings & Statement of Overriding Conditions $9,600.00 Public Hearings (1 CC & 1 PC) $3,900.00
Project Management $14,200.00
GIS, Graphics and Exhibits $3,900.00
EIR Editing and Formatting $3,600.00
Administrative Support $1,800.00
Subtotal $171,650.00
Technical Studies
Air Quality & GHG Analysis Report $12,800.00
Water Supply Assessment $21,000.00
Biological Resource Assessment (General) $15,180.00
Jurisdictional Delineation $13,670.00
Cultural Resources Study $31,390.00
Traffic Impact & VMT Analysis $72,500.00
Subtotal $166,540.00
Reimbursables
Misc. Office: Postage, telephone, photocopies, etc. $3,000.00 Printing of NOP, Draft EIR, Final Documents $5,000.00
Subtotal $8,000.00
Total Project Budget $346,190.00
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EXHIBIT "C"
INSURANCE
A. Insurance Requirements. Contractor shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the S ervices by Contractor, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A:VII.
Contractor shall provide the following scope and limits of insurance:
1. Minimum Scope of Insurance . Coverage shall be at least as broad as:
(1) Commercial General Liability. Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001).
(2) Automobile. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the written approval of the City.
(3) Workers’ Compensation. Workers' Compensation insurance as required by the Labor Code of State of California covering all persons providing Services on behalf of the Contractor and all risks to such persons under this Agreement.
(4) Professional Liability . Professional liability insurance appropriate to the Contractor’s profession. This coverage may be written on a “claims made” basis, and must include coverage for contractual liability. The professional liability insurance required by this Agreement must be endorsed to be applicable to claims based upon, arising out of or related to Services performed under this Agreement. The insurance must be maintained for at least three (3) consecutive years following the completion of Contractor’s services or the termination of this Agreement. During this additional three (3) year period, Contractor shall annually and upon request of the City submit written evidence of this continuous coverage.
2. Minimum Limits of Insurance . Contractor shall maintain limits of insurance no less than:
(1) Commercial General Liability. $1,000,000 general aggregate for bodily injury, personal injury and property damage.
(2) Automobile. $1,000,000 per accident for bodily injury and property damage. A combined single limit policy with aggregate limits in an amount of
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not less than $2,000,000 shall be considered equivalent to the said required minimum limits set forth above.
(3) Workers' Compensation. Workers' Compensation as required by the Labor Code of the State of California of not less than $1,000,000 per occurrence.
(4) Professional Liability. $1,000,000 per occurrence.
B. Other Provisions . Insurance policies required by this Agreement shall contain the following provisions:
1. All Policies. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after 30 days' prior written no tice by certified mail, return receipt requested, has been given to City.
2. Commercial General Liability and Automobile Liability Coverages.
(1) City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities Contractor performs; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees.
(2) Contractor’s insurance coverage shall be primary insurance with respect to City, and its respective elected and appointed, its officers, officials, employees and volunteers. Any insurance or self -insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Contractor’s insurance.
(3) Contractor’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
(4) Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.
3. Workers' Compensation Coverage . Unless the City Manager otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation
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against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Contractor.
C. Other Requirements. Contractor agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City may require that Contractor furnish City with copies of original endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
1. Contractor shall furnish certificates and endorsements from each subcontractor identical to those Contractor provides.
2. Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers, or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Contractor’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
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1 COST RECOVERY REIMBURSEMENT AGREEMENT
THIS COST RECOVERY REIMBURSEMENT AGREEMENT (“Agreement”) is made and entered into as of the 28th day of February, 2024 by and among the City of Cathedral City (“City”), a California municipal corporation, and NPH Estates, LLC (“Developer”), a [ENTITY JURISDICTION AND TYPE].
RECITALS
Developer has submitted or plans to submit applications for the development of approximately 590 acres of land within the North City Extended Specific Plan (“NCESP”) area. The site of the Proposed Project is illustrated in Attachment A, which is attached hereto and incorporated by this reference. City’s processing and consideration of the Proposed Project may require the following approvals, documents and activities (collectively, “Project Approvals”):
(1) Entitlements
• General Plan Amendment
• Zoning Map and Text Amendment
• NCESP Recission
• Design Review
• CEQA
• Development Agreement
(2) Grading permits, building permits, encroachment permits, transportation permits for approval of a construction haul route(s);
(3) Implementation of a mitigation monitoring and reporting program;
(4) Public improvements, including design and construction, fee credits and reimbursement agreement(s);
(5) Any other approvals, documents, studies, peer review or processing reasonably necessary to develop the Proposed Project.
A. Processing of the Proposed Project will require City to incur various costs and expenses including but not limited to staff time, consultant costs, legal fees and costs, and other assorted processing costs.
B. In order to facilitate processing of Developer’s applications, Developer desires to reimburse City for all of its costs associated with the Proposed Project, including but not limited to: legal fees, staff time and consultant costs incurred in connection with the Project Approvals; costs unbilled and/or unreimbursed by Developer in connection with Project Approvals covered by this Reimbursement Agreement; and any litigation costs incurred as a result of the processing of the Proposed Project and any Project Approvals.
C. The parties to this Agreement wish to establish the terms and conditions of such reimbursement obligation.
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2 AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the parties hereby agree as follows:
1. Purpose of Agreement. The purpose of this Agreement is to provide for payment by Developer of all legal, staff and consultant costs directly or indirectly incurred by City in connection with the Proposed Project, including legal defense costs, if any.
2. Developer Reimbursement Obligation. Developer shall reimburse City for the following costs (collectively, “Eligible Costs") incurred in connection with the Proposed Project (including any and all staff and or legal costs incurred following approval of the Proposed Project to process the project to completion):
a. City staff time, processing costs, consultant costs and legal fees associated with processing and implementing all Project Approvals and Mitigation Measures including, but not limited to: legal fees and costs incurred in connection with the legal defense of any Project Approvals; legal fees and costs incurred in connection with the negotiation, drafting, implementation, and defense of the proposed Development Agreement; and fees and costs payable to outside consultants in connection with the negotiations of the proposed Development Agreement.
b. Fees and costs which City has incurred but which have either not yet been billed for reimbursement or which have not yet been reimbursed to the City. The City has made a good faith estimate to summarize all such fees and costs more particularly described in Attachment B, which is attached hereto and incorporated by this reference. The parties acknowledge that the figures on Attachment B constitute the City’s good faith effort to summarize all such fees and costs, and Developer agrees that fees or costs which have inadvertently been omitted from Attachment B, as well as those fees and costs incurred prior the effective date of this Agreement, and are subsequently submitted to Developer, shall be construed as Eligible Costs pursuant to this subsection c.
3. Payment of Eligible Costs. City shall submit to Developer a copy of each invoice, bill, demand or other evidence (“Invoice”) that the City has incurred for Eligible Costs or other reasonable substantiation of such Eligible Costs. Each such Invoice of Eligible Costs shall be paid in full by Developer, without deduction or offset, within thirty (30) calendar days of receipt of the Invoice.
Developer covenants and agrees that failure to pay such Eligible Costs to City in full within thirty (30) calendar days of the receipt of such Invoice will result in a Late Charge in accordance with Section 4 of this Agreement, as well as in the cessation of processing the Proposed Project in accordance with Section 9 of this Agreement until such time as full payment is made. Developer further covenants and agrees that, if as a result of a failure to pay an Invoice of Eligible Costs, City ceases processing the Proposed Project in accordance with Section 9, Developer shall not directly or indirectly initiate any litigation against City or its employees, agents, or volunteers for that cessation or delay in processing the Proposed Project.
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3 4. Late Charge. Developer acknowledges that the late payment of any Eligible Costs will cause City to incur additional costs, including administration and collection costs and processing and accounting of expenses (“Delinquency Costs”). If City has not received payment of all Eligible Costs within thirty (30) calendar days of the receipt of the Invoice, the Invoice is considered overdue and Developer shall immediately be charged a late charge of five percent (5%) of the delinquent amount. The City is then authorized to pay such Late Charge from the Security Deposit along with the amount of the unpaid Invoice of Eligible Costs in accordance with Section 5. City and Developer recognize that the expenses that City shall suffer as a result of Developer’s failure to make timely payments is difficult to ascertain and agree that said five percent (5%) late charge represents a reasonable estimate of the Delinquency Costs that would be incurred by City. City’s acceptance of any such late charge does not equate with a waiver of Developer’s default with respect to the overdue amount, or prevent City from exercising any rights and remedies available under this Agreement.
5. Security Deposit. Upon Developer’s signature of this Agreement, Developer shall deposit with City the sum of fifty thousand dollars ($50,000) in cash or other immediately available funds (“Security Deposit”), as security for Developer’s obligation to pay all Eligible Costs, as provided herein. To the extent additional funds are required to meet the $50,000 Security Deposit amount required by this Agreement, Developer shall deposit such additional amounts upon signature of this Agreement. The Security Deposit shall be subject to the following:
a. Developer agrees that if Developer does not pay when due the full amount of each Invoice of Eligible Costs as provided in Section 3 above, then the City is authorized to pay such amount from the Security Deposit, which may include a Late Charge in accordance with Section 4. b. If the City withdraws from the Security Deposit, the City shall immediately notify the Developer in writing that it has used the Security Deposit to pay all or a portion of the bill, invoice, demand or other evidence of Eligible Costs, and the Developer shall thereafter have fourteen (14) calendar days from the date of such written notice to deposit with City, in cash, an amount necessary to restore the Security Deposit to its full amount of $50,000. If the Developer fails to replenish the Security Deposit within said due date, City shall have no obligation to continue processing the Proposed Project or to incur any additional Eligible Costs until such time as restoration of the Security Deposit is completed. c. If the amount of the unpaid Invoice of Eligible Costs and Late Charge exceeds the available funds in the Security Deposit, the City shall immediately notify the Developer in writing that it has used the Security Deposit to pay all or a portion of the bill, invoice, demand or other evidence of Eligible Costs, and the Developer shall have fourteen (14) calendar days from the date of such written notice to deposit with City, in cash, an amount necessary to restore the Security Deposit to its full amount of $50,000, plus the full amount of the unpaid Invoice of Eligible Costs and applicable Late Charge. If the Developer fails to fully replenish the Security Deposit, pay the full Invoice of Eligible Costs and applicable Late Charge within said due date, City shall have no obligation to continue processing the Proposed Project or to incur any additional Eligible Costs until such time as restoration of the Security Deposit, payment of the Invoice, and payment of the applicable Late Charge is completed.
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4 d. Developer further covenants and agrees that, if as a result of reduction of the Security Deposit to zero dollars or failure to replenish, City ceases processing the Proposed Project in accordance with Section 9, Developer shall not directly or indirectly initiate any litigation against City or its employees, agents, or volunteers for the failure to process or for delay in processing the Proposed Project following such reduction or failure to replenish. e. If this Agreement is terminated as provided in Section 8 below and all activities related to Project Approvals have ceased and the City is not continuing to incur costs related to the project, City shall return to Developer within ninety (90) calendar days following the effective date of termination that portion of the Security Deposit that has not been expended or committed by City as provided herein, if any.
6. No Commitment as to Future Approvals. Nothing in this Agreement shall be construed as a commitment to grant or issue any Project Approvals or any other preliminary or formal approvals in connection with the Proposed Project or to enter into the proposed Development Agreement or any other agreements. Developer acknowledges and agrees that nothing in this Agreement limits City’s discretion, in any manner, with respect to any aspect of the Proposed Project, the proposed Development Agreement, or the proposed real estate transaction and fee credit agreements. Developer agrees that it shall remain obligated to pay all Eligible Costs, regardless of whether any aspect of the Proposed Project is approved and regardless of whether City and Developer enter into the proposed Development Agreement or any other agreements. Notwithstanding the aforementioned, City shall in good faith expeditiously and with all diligence process the Project Approvals.
7. Indemnity. Developer shall, to the greatest extent authorized by law, defend (with counsel approved by City, which approval shall not be unreasonably withheld), indemnify, and hold harmless the City, its officials, employees, volunteers and agents from and against any and all loss, liability, expenses, claims, costs (including reasonable attorneys’ fees), suits and damages of every kind nature, and description, directly or indirectly arising from any third party legal challenge to the Project Approvals, or the implementation of this Agreement. Developer may defend against any such third party legal challenge as a Real Party in Interest using counsel of Developer’s choice, and Developer and City agree to cooperate in the joint defense of the Project Approvals or the implementation of this Agreement. Developer’s indemnity obligations under this Section 7 shall survive the expiration or termination of this Agreement.
8. Termination. Developer may terminate this Agreement by providing thirty (30) calendar days written notice to City. If Developer is in default of any of its obligations under this Agreement and fails to cure such default within fourteen (14) calendar days following written notice from City, then City may terminate this Agreement by notice to Developer and, thereafter, City shall have no further obligation to process Project Approvals for the Proposed Project or to continue with negotiation and drafting of the proposed Development Agreement or any other agreements.
Developer shall be responsible for the payment of Eligible Costs incurred by City up to and including the date of termination regardless of which party terminates this Agreement.
9. Cessation of Processing. Developer acknowledges and agrees that City may, in its sole discretion, cease processing the Proposed Project, the Project Approvals, and all negotiations in connection with any proposed Development Agreement or any other agreements, in any of the following events:
a. This Agreement is terminated by either party following notice and expiration of any
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5 applicable cure periods as provided herein; or
b. Developer fails to pay such Eligible Costs to City in full within thirty (30) calendar days of the receipt of such Invoice; or
c. The Security Deposit amount is reduced to zero and Developer fails to replenish the Security Deposit upon request by City.
Upon payment of Eligible Costs (plus any late fee) and/or replenishment of the Security Deposit, as relevant, the City shall resume processing the Proposed Project, Project Approvals, and all negotiations in connection with any proposed Development Agreement. Developer further covenants and agrees that if City ceases processing the Project Approvals for any of the foregoing reasons, Developer shall not directly or indirectly initiate any litigation against City or its employees, agents, or volunteer for the failure to process or for delay in processing such applications that resulted from or were due to that cessation of processing.
10. Attorneys’ Fees. If any legal action is brought by either party to interpret or enforce any terms or provisions of this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and costs.
11. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the matters set forth herein. Any amendments, modifications, or changes to this Agreement shall be in writing and signed by both parties.
12. Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
13. Severability. If any provision of this Agreement or the application of any such provision shall be held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions of this Agreement and the application thereof shall remain in full force and effect and shall not be affected, impaired or invalidated.
14. CEQA Processing. Developer acknowledges and agrees that the City is the lead agency under CEQA, that the environmental review document(s), including but not limited to, an Initial Study, Environmental Impact Report (including project or program level review, supplemental EIR, subsequent EIR, or addendum), mitigated negative declaration, negative declaration, and/or notice of exemption, must reflect City’s independent judgment and that City retains full discretion with respect to all findings to be made in connection therewith.
15. Successors and Assigns. This Agreement shall be binding upon the parties hereto and their respective heirs, legal representatives, successors and assigns.
16. Jurisdiction. This Agreement shall be administered and interpreted under the laws of the State of California without regard to its choice of law rules. Jurisdiction and venue of litigation arising from this Agreement shall be in the County of Santa Cruz, State of California.
17. Notices. Notices required by this Agreement shall be personally delivered, mailed, postage prepaid, or mailed via nationally recognized overnight courier as follows:
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6 To the Developer: William Messenger, Jr.
Managing Member
NPH Estates, LLC
with a copy to:
To the City: Charles McClendon
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
with a copy to: Tracey R. Hermosillo, City Clerk
68-700 Avenida Lalo Guerrero
Cathedral City, CA 9223
Notices given by personal delivery shall be deemed received and effective immediately. Notices given by overnight courier shall be deemed received and effective upon the date of delivery. Notices given by mail shall be deemed to have been received five days after having been deposited in the United States mail. Any party may change its address for notice by written notice to the other party in the manner provided in this paragraph 17.
18. Interpretation. The titles to the sections of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part of this Agreement. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation.” This Agreement is the product of negotiations among the parties, and it shall not be construed as if it had been prepared by one of the parties, but rather as if all of the parties have prepared the same. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement.
19. Authority. Each person executing this Agreement covenants and warrants that (i) the party on whose behalf he or she is signing is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (ii) the party has and is duly qualified to do business in California, (iii) the party has full corporate, partnership, trust, association or other power and authority to enter into this Agreement and to perform all of its obligations hereunder, and (iv) each person (and all of the persons if more than one signs) signing this Agreement is duly and validly authorized to do so.
20. Counterparts. This Agreement may be executed in counterparts.
21. Assignment of Claims. To the extent City determines that it may have Claims against any Project Consultant in connection with the Proposed Project, City may, upon written request by Developer,
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7 assign such Claims to Developer. As used herein, “Project Consultant” means any consultant, contractor, or other third party whose work product gives rise to any Eligible Cost or who is hired by City in connection with the Project Approvals; and “Claims” means any and all claims, potential claims, causes of action, and potential causes of action for breach of contract and/or professional negligence, regardless of whether such claims or causes of action accrue prior to or after the effective date of this Agreement.
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8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
CITY:
CITY OF CATHEDRAL CITY],
a municipal corporation
Charles McClendon, City Manager
APPROVED AS TO FORM:
Eric Vail, City Attorney
ATTEST:
Tracey Hermosillo, City Clerk
DEVELOPER:
By:
(Signature) (Date)
(Print name and title)
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ATTACHMENT A
PROPERTY DESCRIPTION OF SPECIFIC PLAN AREA
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ATTACHMENT B
GOOD FAITH ESTIMATE OF PROJECT EXPENSES
Planning and Environmental Consultant Services $346,190.00
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Attachment: CON - Cost Recovery Reimbursement Agmt Form_(2-21_v.2) [Revision 1] (4113 : Professional Services Contract - Messenger