Agenda — Indian Wells City Council, November 3, 2022 (part 3 of 3)

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21.85.010 21.85.010 Purpose.

The purpose of this Chapter is to allow and regulate accessory dwelling units (ADUs) and junior accessory dwelling units (JADUs) in compliance with California Government Code Sections 65852.2 and 65852.22. (Ord. 738 § 4, 2022)

21.85.020 21.85.020 Effect of conforming.

An ADU or JADU that conforms to the standards in this Chapter will not be:
(a)(a) Deemed to be inconsistent with the City’s General Plan and zoning designation for the lot on which the ADU or JADU is located.
(b)(b) Deemed to exceed the allowable density for the lot on which the ADU or JADU is located.
(c)(c) Considered in the application of any local ordinance, policy, or program to limit residential growth.
(d)(d) Required to correct a nonconforming zoning condition, as defined in Section

21.85.030(g) below. This does not prevent the City from enforcing compliance with applicable building standards in accordance with Health and Safety Code Section 17980.12. (Ord. 738 § 4, 2022)

21.85.030 21.85.030 Definitions.

As used in this Chapter, terms are defined as follows:
(a)(a) “Accessory dwelling unit” or “ADU” means an attached or a detached residential dwelling unit that provides complete independent living facilities for one (1) or more persons and is located on a lot with a proposed or existing primary residence. An accessory dwelling unit also includes the following:
(1)(1) An efficiency unit, as defined by Section 17958.1 of the California Health and Safety Code; and
(2)(2) A manufactured home, as defined by Section 18007 of the California Health and Safety Code.
(b)(b) “Accessory structure” means a structure that is accessory and incidental to a dwelling located on the same lot.
(c)(c) “Complete independent living facilities” means permanent provisions for living, sleeping, eating, cooking, and sanitation on the same parcel as the single-family or multifamily dwelling is or will be situated.
(d)(d) “Efficiency kitchen” means a kitchen that includes all of the following:
(1)(1) A cooking facility with appliances.

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(2) (2) A food preparation counter and storage cabinets that are of a reasonable size in relation to the size of the JADU.
(e) (e) “Junior accessory dwelling unit” or “JADU” means a residential unit that satisfies all of the following:
(1) (1) IsIt is no more than five hundred (500) square feet in size,. (2) (2) IsIt is contained entirely within an existing or proposed single-family structure,. An enclosed use within the residence, such as an attached garage, is considered to be a part of and contained within the single-family structure. (3) (3) IncludesIt includes its own separate sanitation facilities or shares sanitation facilities with the existing or proposed single-family structure, and. (4) If the unit does not include its own separate bathroom, then it contains an interior entrance to the main living area of the existing or proposed single-family structure in addition to an exterior entrance that is separate from the main entrance to the primary dwelling.
(5) (4) IncludesIt includes an efficiency kitchen, as defined in Section

21.85.030(d) above.
(f) (f) “Living area” means the interior habitable area of a dwelling unit, including basements and attics, but does not include a garage or any accessory structure. (g) (g) “Nonconforming zoning condition” means a physical improvement on a property that does not conform with current zoning standards.
(h) (h) “Passageway” means a pathway that is unobstructed clear to the sky and extends from a street to one (1) entrance of the ADU or JADU.
(i) (i) “Proposed dwelling” means a dwelling that is the subject of a permit application and that meets the requirements for permitting.
(j) (j) “Public transit” means a location, including, but not limited to, a bus stop or train station, where the public may access buses, trains, subways, and other forms of transportation that charge set fares, run on fixed routes, and are available to the public. (k) (k) “Tandem parking” means that two (2) or more automobiles are parked on a driveway or in any other location on a lot, lined up behind one another. (Ord. 738 § 4, 2022)

21.85.040 21.85.040 Approvals.

The following approvals apply to ADUs and JADUs under this Chapter:

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(a) (a) Building-Permit Only. If an ADU or JADU complies with each of the general requirements in Section 21.85.050 below, it is allowed with only a building permit in the following scenarios:
(1) (1) Converted on Single-Family Lot.: One (1) ADU as described in this subsection (a)(1) and one (1) JADU on a lot with a proposed or existing single- family dwelling on it, where the ADU or JADU:
(i) (i) Is either: within the space of a proposed single-family dwelling; within the existing space of an existing single-family dwelling; or (in the case of an ADU only) within the existing space of an accessory structure, plus up to one hundred fifty (150) additional square feet if the expansion is limited to accommodating ingress and egress; and
(ii) (ii) Has exterior access that is independent of that for the single- family dwelling; and
(iii) (iii) Has side and rear setbacks sufficient for fire and safety, as dictated by applicable building and fire codes.
(iv) The JADU complies with the requirements of Government Code Section 65852.22.
(2) (2) Limited Detached on Single-Family Lot.: One (1) detached, new- construction ADU on a lot with a proposed or existing single-family dwelling (in addition to any JADU that might otherwise be established on the lot under subsection (a)(1) above), if the detached ADU satisfies each of the following limitations:
(i) (i) The side- and rear-yard setbacks are at least four (4) feet. (ii) (ii) The total floor area is eight hundred (800) square feet or smaller. (iii) (iii) The peak height above grade is sixteen does not exceed the applicable height limit in subsection 21.85.050(16b) feet or lessbelow. (3) (3) Converted on Multifamily Lot.: One (1) or more ADUs within portions of existing multifamily dwelling structures that are not used as livable space, including, but not limited to, storage rooms, boiler rooms, passageways, attics, basements, or garages, if each converted ADU complies with state building standards for dwellings. Under subsection (a)(3) of this Section, at least one (1) converted ADU is allowed within an existing multifamily dwelling, up to a quantity equal to twenty-five25 percent (25%) of the existing multifamily dwelling units.
(4) (4) Limited Detached on Multifamily Lot.: No more than two (2) detached ADUs on a lot that has an existing or proposed multifamily dwelling if each detached ADU satisfies both of the following limitations:

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(i) (i) The side- and rear-yard setbacks are at least four (4) feet. If the existing multifamily dwelling has a rear or side yard setback of less than four feet, the City will not require any modification to the multifamily dwelling as a condition of approving the ADU.
(ii) (ii) The peak height above grade is sixteen does not exceed the applicable height limit provided in Section 21.85.050(16b) feet or lessbelow.
(b) (b) ADU Permit.
(1) (1) Except as allowed under subsection (a) above, no ADU may be created without a building permit and an ADU permit in compliance with the standards set forth in Sections 21.85.050 and 21.85.060 below.
(2) (2) The City may charge a fee to reimburse it for costs incurred in processing ADU permits, including the costs of adopting or amending the City’s ADU ordinance. The ADU-permit processing fee is determined by the Community Development Director and approved by the City Council by resolution. (c) (c) Process and Timing.
(1) (1) An ADU permit is considered and approved ministerially, without discretionary review or a hearing.
(2) (2) The City must act onapprove or deny an application to create an ADU or JADU within sixty (60) days from the date that the City receives a completed application. If the City doeshas not act uponapproved or denied the completed application within sixty (60) days, the application is deemed approved unless either:
(i) (i) The applicant requests a delay, in which case the sixty (60) -day time period is tolled for the period of the requested delay, or (ii) (ii) When an application to create an ADU or JADU is submitted with a permit application to create a new single-family or multifamily dwelling on the lot, the City may delay acting on the permit application for the ADU or JADU until the City acts on the permit application to create the new single-family or multifamily dwelling, but the application to create the ADU or JADU will still be considered ministerially without discretionary review or a hearing. (Ord. 738 § 4, 2022) (3) If the City denies an application to create an ADU or JADU, the City must provide the applicant with comments that include, among other things, a list of all the defective or deficient items and a description of how the application may be remedied by the applicant. Notice of the denial and corresponding comments must be provided to the applicant within the 60-day time period established by subsection (c)(2) above.

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(3)(4) A demolition permit for a detached garage that is to be replaced with an ADU is reviewed with the application for the ADU and issued at the same time.

21.85.050 21.85.050 General ADU and JADU requirements.

The following requirements apply to all ADUs and JADUs that are approved under SectionSections 21.85.040(a) or (b) above:
(a) (a) Zoning.
(1) (1) An ADU or JADU subject only to a building permit under Section

21.85.040(a) above may be created on a lot in a residential or mixed-use zone. (2) (2) An ADU or JADU subject to an ADU permit under Section 21.85.040(b) above may be created on a lot that is zoned to allow single-family dwelling residential use or multifamily dwelling residential use. (b) Height.
(1) Except as otherwise provided by subsections (b)(2) and (3) below, a detached ADU created on a lot with an existing or proposed single family or multifamily dwelling unit may not exceed 16 feet in height.
(2) A detached ADU may be up to 18 feet in height if it is created on a lot with an existing or proposed single family or multifamily dwelling unit that is located within one-half mile walking distance of a major transit stop or a high quality transit corridor, as those terms are defined in Section 21155 of the Public Resources Code, and the ADU may be up to two additional feet in height (for a maximum of 20 feet) if necessary to accommodate a roof pitch on the ADU that is aligned with the roof pitch of the primary dwelling unit.
(3) A detached ADU created on a lot with an existing or proposed multifamily dwelling that has more than one story above grade may not exceed 18 feet in height.
(4) An ADU that is attached to the primary dwelling may not exceed 25 feet in height or the height limitation imposed by the underlying zone that applies to the primary dwelling, whichever is lower. Notwithstanding the foregoing, ADUs subject to this subsection 21.85.050(b)(4) may not exceed two stories. (5) For purposes of this subsection 21.85.050(b), height is measured above existing legal grade to the peak of the structure.
(c) (b) Fire Sprinklers.
(1) Fire sprinklers are required in an ADU if sprinklers are required in the primary residence.

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(2) The construction of an ADU does not trigger a requirement for fire sprinklers to be installed in the existing primary dwelling.
(d) (c) Rental Term. No ADU or JADU may be rented for a term that is shorter than thirty (30) days. This prohibition applies regardless of when the ADU or JADU was created.
(e) (d) No Separate Conveyance. An ADU or JADU may be rented, but, except as otherwise provided in Government Code Section 65852.26, no ADU or JADU may be sold or otherwise conveyed separately from the lot and the primary dwelling (in the case of a single-family lot) or from the lot and all of the dwellings (in the case of a multifamily lot).
(f) (e) Septic System. If the ADU or JADU will connect to an on-site wastewater- treatment system, the owner must include with the application a percolation test completed within the last five (5) years or, if the percolation test has been recertified, within the last ten (10) years.
(g) (f) Owner Occupancy.
(1) All ADUs permitted before January 1, 2020 are subject to the owner-occupancy requirement that was in place when the ADU was created. (1) (2) An ADU that is permitted after that dateJanuary 1, 2020, but before January 1, 2025, is not subject to any owner-occupancy requirement. (2) (3) AllUnless applicable law requires otherwise, all ADUs that are permitted on or after January 1, 2025 are subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property as the person’s legal domicile and permanent residence. (3) (4) AllAs required by state law, all JADUs are subject to an owner-occupancy requirement. A natural person with legal or equitable title to the property must reside on the property, in either the primary dwelling or JADU, as the person’s legal domicile and permanent residence. However, the owner-occupancy requirement in this subsection (fg)(43) of this Section does not apply if the property is entirely owned by another governmental agency, land trust, or housing organization.
(h) (g) Deed Restriction. Prior to issuance of a building permit for an ADU or JADU, a deed restriction must be recorded against the title of the property in the County Recorder’s office and a copy filed with the Community Development Director. The deed restriction must run with the land and bind all future owners. The form of the deed restriction will be provided by the City and must provide that:
(1) (1) Except as otherwise provided in Government Code Section 65852.26, the ADU or JADU may not be sold separately from the primary dwelling.

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(2) (2) The ADU or JADU is restricted to the approved size and to other attributes allowed by this Section.
(3) (3) The deed restriction runs with the land and may be enforced against future property owners.
(4) (4) The deed restriction may be removed if the owner eliminates the ADU or JADU, as evidenced by, for example, removal of the kitchen facilities. To remove the deed restriction, an owner may make a written request of the Director, providing evidence that the ADU or JADU has in fact been eliminated. The Director may then determine whether the evidence supports the claim that the ADU or JADU has been eliminated. Appeal may be taken from the Director’s determination consistent with other provisions of this Code. If the ADU or JADU is not entirely physically removed, but is only eliminated by virtue of having a necessary component of an ADU or JADU removed, the remaining structure and improvements must otherwise comply with applicable provisions of this Code. (5) (5) The deed restriction is enforceable by the Director or his or her designee for the benefit of the City. Failure of the property owner to comply with the deed restriction may result in legal action against the property owner, and the City is authorized to obtain any remedy available to it at law or equity, including, but not limited to, obtaining an injunction enjoining the use of the ADU or JADU in violation of the recorded restrictions or abatement of the illegal unit. (i) (h) Income Reporting. In order to facilitate the City’s obligation to identify adequate sites for housing in accordance with Government Code Sections 65583.1 and 65852.2, the following requirements must be satisfied:
(1) (1) With the building-permit application, the applicant must provide the City with an estimate of the projected annualized rent that will be charged for the ADU or JADU.
(2) (2) Within ninety (90) days after each yearly anniversary of the issuance of the building permit, the owner must report the actual rent charged for the ADU or JADU during the prior year. If the City does not receive the report within the ninety (90) -day period, the owner is in violation of this Code, and the City may send the owner a notice of violation and allow the owner another thirty (30) days to submit the report. If the owner fails to submit the report within the thirty (30)- day period, the City may enforce this provision in accordance with applicable law. (i) Notice of Construction.
(1) At least ten (10) business days before starting any construction of an ADU or JADU, the property owner must give written notice to all the owners of record of each of the adjacent residential parcels, which notice must include the following information:
(i) Notice that construction has been authorized,

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(ii) The anticipated start and end dates for construction, (iii) The hours of construction,
(iv) Contact information for the project manager (for construction-related complaints), and
(j) (v) Contact information for the Building and& Safety Department. (2) This notice requirement does not confer a right on the noticed persons or on anyone else to comment on the project before permits are issued. Approval is ministerial. Under State law, the City has no discretion in approving or denying a particular ADU project under this Section. This notice requirement is purely to promote neighborhood awareness and expectation. (1) (j) Building and Safety. AllMust comply with building code. Subject to subsection (j)(2) below, all ADUs and JADUs must comply with all local building code requirements. (Ord. 738 § 4, 2022)
(2) No change of occupancy. Construction of an ADU does not constitute a Group R occupancy change under the local building code, as described in Section 310 of the California Building Code, unless the building official or Code Enforcement Division officer makes a written finding based on substantial evidence in the record that the construction of the ADU could have a specific, adverse impact on public health and safety. Nothing in this subsection (j)(2) prevents the City from changing the occupancy code of a space that was uninhabitable space or that was only permitted for nonresidential use and was subsequently converted for residential use in accordance with this section.

21.85.060 21.85.060 Specific ADU requirements.

The following requirements apply only to ADUs that require an ADU permit under Section

21.85.040(b) above.
(a) (a) Maximum Size.
(1) (1) The maximum size of a detached or attached ADU subject to this Section is eight hundred fifty (21.85.060 is 850) square feet for a studio or one (1)- bedroomone-bedroom unit and one thousand (1,000) square feet for a unit with two (2) or more bedrooms.
(2) (2) An attached ADU that is created on a lot with an existing primary dwelling is further limited to fifty50 percent (50%) of the floor area of the existing primary dwelling.
(3) (3) Application of other development standards in this Section 21.85.060, such as FAR or lot coverage, might further limit the size of the ADU, but no application of the percent-based size limit in subsection (a)(2) above or of an FAR

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or, front setback, lot coverage limit, or open-space requirement may require the ADU to be less than eight hundred (800) square feet.
(b) (b) Floor Area Ratio (FAR). No ADU subject to this Section 21.85.060 may cause the total FAR of the lot to exceed forty-five45 percent (45%), subject to subsection (a)(3) above.
(c) (c) Setbacks.
(1) (1) An ADU that is subject to this Section 21.85.060 must conform to a twenty-five (25) -foot front-yard setback, subject to subsection (a)(3) above. (2) (2) An ADU that is subject to this Section 21.85.060 must conform to four (4) -foot side- and rear-yard setbacks.
(3) (3) No setback is required for an ADU that is subject to this Section

21.85.060 if the ADU is constructed in the same location and to the same dimensions as an existing structure.
(d) (d) Lot Coverage. No ADU subject to this Section 21.85.060 may cause the total lot coverage of the lot to exceed fifty50 percent (50%), subject to subsection (a)(3) above. (e) (e) Minimum Open Space. No ADU subject to this Section 21.85.060 may cause the total percentage of open space of the lot to fall below fifty50 percent (50%), subject to subsection (a)(3) above.
(f) Height. No ADU subject to this Section may exceed sixteen (16) feet in height above grade, measured to the peak of the structure.
(f) (g) Passageway. No passageway, as defined by Section 21.85.030(h) above, is required for an ADU.
(g) (h) Parking.
(1) (1) Generally. One off-street parking space is required for each ADU. The parking space may be provided in setback areas or as tandem parking, as defined by Section 21.85.030(k) above.
(2) (2) Exceptions. No parking under subsection (hg)(1) of this Section is required in the following situations:
(i) (i) The ADU is located within one-half (½) mile walking distance of public transit, as defined in Section 21.85.030(j) above. (ii) (ii) The ADU is located within an architecturally and historically significant historic district.

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(iii) (iii) The ADU is part of the proposed or existing primary residence or an accessory structure under Section 21.85.040(a)(1) above. (iv) (iv) When on-street parking permits are required but not offered to the occupant of the ADU.
(v) (v) When there is an established car share vehicle stop located within one (1) block of the ADU.
(vi) When the permit application to create an ADU is submitted with an application to create a new single-family or new multifamily dwelling on the same lot, provided that the ADU or the lot satisfies any other criteria listed in subsections (g)(2)(i) through (v) above.
(3) (3) No Replacement. When a garage, carport, or covered parking structure is demolished in conjunction with the construction of an ADU or converted to an ADU, those off-street parking spaces are not required to be replaced. (h) (i) Architectural Requirements.
(1) (1) The materials and colors of the exterior walls, roof, and windows and doors must match the appearance and architectural design of those of the primary dwelling.
(2) (2) The roof slope must match that of the dominant roof slope of the primary dwelling. The dominant roof slope is the slope shared by the largest portion of the roof.
(3) (3) The exterior lighting must be limited to down-lights or as otherwise required by the building or fire code.
(4) (4) The ADU must have an independent exterior entrance, apart from that of the primary dwelling.
(5) (5) The interior horizontal dimensions of an ADU must be at least ten (10) feet wide in every direction, with a minimum interior wall height of seven (7) feet.
(6) (6) Windows and doors of the ADU may not have a direct line of sight to an adjoining residential property. Fencing, landscaping, or privacy glass may be used to provide screening and prevent a direct line of sight. (7) (7) All windows and doors in an ADU are less than thirty (30) feet from a property line that is not a public right-of-way line must either be (for windows) clerestory with the bottom of the glass at least six (6) feet above the finished floor, or (for windows and for doors) utilize frosted or obscure glass.

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(i) (j) Landscape Requirements. Evergreen landscape screening must be planted and maintained between the ADU and adjacent parcels as follows:
(1) (1) At least one fifteen (15) -gallon size plant shall be provided for every five (5) linear feet of exterior wall. Alternatively, at least one twenty-four (24) inch box size-inch-box sized plant shall be provided for every ten (10) linear feet of exterior wall.
(2) (2) Plant specimens must be at least six (6) feet tall when installed. As an alternative, a solid fence of at least six (6) feet in height may be installed. (3) (3) All landscaping must be drought-tolerant. (4) (4) All landscaping must be from the City’s approved plant list. (j) (k) Historical Protections. An ADU that is on or within six hundred (600) feet of real property that is listed in the California Register of Historic Resources must do both of the following:
be (1) Comply with the Secretary of the Interior’s Objective Standards for Preservation, Rehabilitation, Restoration, or Reconstruction the Treatment of Historic Properties, as applicable.
(2) Be located so as to not be visible from any public right-of-way. (Ord. 738 § 4, 2022)

21.85.070 21.85.070 Fees.

The following requirements apply to all ADUs and JADUs that are approved under Section

21.85.040(a) or 21.85.040(b) above.
(a) (a) Impact Fees.
(1) (1) No impact fee is required for an ADU or JADU that is less than seven hundred fifty (750) square feet in size. For purposes of this Sectionsubsection (a), “impact fee” means a “fee” under the Mitigation Fee Act (GovernmentGov. Code Section§ 66000(b)) and a fee under the Quimby Act (GovernmentGov. Code Section§ 66477). “Impact fee” here does not include any connection fee or capacity charge for water or sewer service.
(2) (2) Any impact fee that is required for an ADU that is seven hundred fifty (750) square feet or larger in size must be charged proportionately in relation to the square footage of the primary dwelling unit. (E.g., the floor area of the ADU, divided by the floor area of the primary dwelling, times the typical fee amount charged for a new dwelling.)
(b) (b) Utility Fees.

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(1) (1) If an ADU is constructed with a new single-family home, a separate utility connection directly between the ADU and the utility and payment of the normal connection fee and capacity charge for a new dwelling are required. (2) (2) Except as described in subsection (b)(1) of this Section, converted ADUs on a single-family lot that are created under Section 21.85.040(a)(1) above are not required to have a new or separate utility connection directly between the ADU or JADU and the utility. Nor is a connection fee or capacity charge required. (3) (3) Except as described in subsection (b)(1) of this Section, all ADUs that are not covered by subsection (b)(2) of this Section require a new, separate utility connection directly between the ADU and the utility.
(i) (i) The connection is subject to a connection fee or capacity charge that is proportionate to the burden created by the ADU, based on either the floor area or the number of drainage-fixture units (DFU) values, as defined by the Uniform Plumbing Code, upon the water or sewer system. (ii) (ii) The portion of the fee or charge that is charged by the City may not exceed the reasonable cost of providing this service. (Ord. 738 § 4, 2022)

21.85.080 Nonconforming Zoning Code Conditions, Building Code Violations, and Unpermitted Structures.
(a) Generally. The City will not deny an ADU or JADU application due to a nonconforming zoning condition, building code violation, or unpermitted structure on the lot that does not present a threat to the public health and safety and that is not affected by the construction of the ADU or JADU.
(b) Unpermitted ADUs constructed before 2018.
(1) Permit to Legalize. As required by state law, the City may not deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if denial is based on either of the following grounds:
(i) The ADU violates applicable building standards, or
(ii) The ADU does not comply with the state ADU law (Gov. Code § 65852.2) or this ADU ordinance (Chapter 21.85).
(4)(2) Exceptions:
(i) Notwithstanding subsection 21.85.080(b)(1) above, the City may deny a permit to legalize an existing but unpermitted ADU that was constructed before January 1, 2018, if the City makes a finding that correcting a violation is necessary to protect the health and safety of the public or of occupants of the structure.

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(ii) Subsection 21.85.080(b)(1) above does not apply to a building that is deemed to be substandard in accordance with California Health and Safety Code section 17920.3.

21.85.08021.85.090 21.85.080 Nonconforming ADUs and discretionary approval.

Any proposed ADU or JADU that does not conform to the objective standards set forth in Sections 21.85.010 through 21.85.07021.85.080 of this Chapter may be allowed by the City with a conditional use permit, in accordance with the other provisions of this title. (Ord. 738 § 4, 2022)

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INDIAN WELLS CITY COUNCIL
November 3, 2022

To: City Council
From: Human Resources Department
Prepared by: Peter Castro, Deputy City Manager
Subject: Amendment to Employment Agreement for City
Manager

RECOMMENDED ACTIONS:

Council APPROVES Fourth Amendment to the Employment Agreement for City Manager Christopher Freeland.

DISCUSSION:

On May 2, 2019, the City Council entered into an Employment Agreement (Attachment # 1) with Chris Freeland to serve as City Manager, effective May 13, 2019. The Council adopted the First Amendment to the Employment Agreement on June 4, 2020, a Second Amendment on December 17, 2020, and the Third Amendment on December 16, 2021.

Annually, the City Council evaluates the City Manager’s performance and determines if any changes to salary and benefits are merited. The Council met individually with the City Manager to review his performance over the past year. The consensus is that the City Manager has done an excellent job managing the City's day-to-day operations.

The Council Personnel Committee consisting of the Mayor and the Mayor Pro Tem, are recommending that the Council approve the Fourth Amendment to Employment Agreement for City Manager. The terms of the Amendment to the Employment Agreement are as follows:

 Extension of Employment Agreement through December 31, 2029.  Salary increase from $250,000 to $262,000 a year retroactive to July 1, 2022 , consistent with increases afforded other City staff.
 One-Time Vacation Bank of 40 hours.

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FISCAL IMPACT:

The fiscal impact of the Third Amendment to the Employment Agreement is $12,000, shared between the City’s General Fund, Fire Services Fund, Golf Resort Fund, and the Housing Authority Fund. The cost to the General Fund is $6,000, Fire Services Fund is $600, Golf Resort Fund is $2,400, and Housing Authority Fund is $3,000.

ATTACHMENTS:

1. Employment Agreement

2. First Amendment

3. Second Amendment

4. Third Amendment

5. Fourth Amendment

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INDIAN WELLS
26529.000 17\3 1968746.1

CALIFORNIA

EMPLOYMENT AGREEMENT

CITY MANAGER
May 2, 2 01 9
ATTACHMENT #1

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1. Employment:

EMPLOYMENT AGREEMENT BETWEEN

THE CITY OF INDIAN WELLS

AND CHRIS FREELAND
This City Manager Employment Agreement (Agreement) is entered into by and between the CITY OF INDIAN WELLS (City) and CHRIS FREELAND(Manager). Under this Agreement, the City offers, and Manager accepts, employment as City Manager of City of Indian Wells. Manager, in his capacity as City Manager, is a contracted employee serving at the will and pleasure of the City Council, subject to termination pursuant to the terms of this Agreement, and with no right to any hearing or appeal, including any so- called Skelly conference, other than the rights expressly provided in this Agreement.

2. Duties:

Manager shall perform those duties and have those responsibilities that are commonly assigned to a city manager of a city in California, and as may be further set forth in the City's Charter or Municipal Code at sections 2.04.080 and 2.040.090.

Manager represents that he has the requisite education, experience, skills and expertise to serve as city manager. Manager shall perform such other legally permissible and proper duties and functions consistent with the office of City Manager, as the City Council shall from time to time assign.

During the Term of this Agreement or any subsequent term, the City Council will not change any provisions in the City Council Policy Manual relating the duties and responsibilities of the city manager position without meeting and conferring with the Manager at least once in an attempt to agree on the changes proposed. After one meeting with the Manager over the proposed changes, the City Council is free to make its proposed changes regardless of whether it reached any agreement on those changes with the Manager. It is understood that all other provisions of the City Council Policy Manual can be changed by the City Council at its discretion. 1 26529.00017\31968746.1

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3. Devotion to City Business:

Manager's position is full-time. Manager shall not engage in any business, educational, professional, charitable, or other activities that would conflict or materially interfere with performance of his Manager duties, except as may be specifically authorized by the c.ity Council. City Council Authorization will not be unreasonably withheld. The Manager shall regulate his own work schedule provided he accommodates a normal business schedule and remains accessible, recognizing the Manager's need for flexibility. It is understood that the Manager shall be available 24 hours a day and 7 days a week and is required to meet all the needs of the City regardless of City operating hours or any regular or normal work schedule.

4. Term:

The term of this Agreement will commence on May 13, 2019, and shall continue until May 13, 2024, or the date of earlier termination in accordance with provisions in this Agreement. In the event that the City Council determines that the Manager is not to be reemployed upon expiration of this Agreement, he shall be given written notice thereof by the City Council at least one hundred and twenty (120) days in advance of the final year of this Agreement. Failure to provide timely written notice provided for in this Section shall result in the Agreement being be extended on the same terms for additional periods of one (1) year on each occasion. This renewal clause and its notice provision shall apply to all subsequent terms under this Agreement.
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5. City Council Commitments:

A. Except for the purpose of inquiry, the City Council and its members shall deal with all subordinate City employees, officers, contractors, and consultants solely through the Manager or the Manager's designee, and neither the City Council nor any member thereof shall give direction to any subordinate of the Manager, either publicly or privately.

B. No member of the City Council will order the appointment or removal of any person to any office or employment under the supervision and control of the Manager.

C. Neither the City Council nor any of its members shall interfere with the execution of the powers and duties of the Manager, as specified in the City Charter, the Municipal Code, this Agreement, or any other lawfully adopted and authorized document.

6. Termination of Employment and this Agreement; Severance:

A. If City terminates this Agreement (thereby terminating Manager's employment) without cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, and if Manager signs, delivers to the City Council, and does not revoke, the General Release Agreement ("Release Agreement") in the form attached hereto as Exhibit A, City shall pay Manager a lump sum benefit equal to (1) payment equal to nine (9) months of Manager's Base Salary; or (2) payment equal to the unexpired Term of this Agreement as described in Section 4 above. In addition to the Severance pay, Manager shall receive continuation of his health benefits for nine (9) months or until finds other employment that provides health benefits, whichever occurs first. (The foregoing salary and health benefits shall be referred to collectively as "Severance.")
B. If City terminates this Agreement (thereby terminating Manager's employment) with Cause, as determined by the affirmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, Manager shall not be entitled to any additional compensation or payment, including Severance, but shall be 3 26529.00017\31968746.1

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entitled only to accrued Base Salary and vacation pay, and any other accrued and unused benefit allowances according to their terms ("Accrued Salary and Benefits"). As used in this Agreement, Cause shall only mean any of the following:

1. Conviction of, or no contest plea to, a felony;

2. Conviction of, or not contest plea to, any illegal act involving moral turpitude or personal gain;

3. Continued abuse of non-prescription drugs or alcohol that materially affects the performance of the Manager's duties;

4. Any act constituting a knowing and intentional violation of the City's conflict of interest code;

5. Repeated and protracted unexcused absences from the City Manager's office and duties;

6. Conviction of any crime involving an "abuse of office or position," as that term is defined in Government Code Section 53243.4; or

7. Repeated failure to carry out a directive or directives of the City Council made by the City Council as a body at a Brown Act-compliant meeting.

C. In no event may Manager be terminated within ninety (90) days before or after any municipal election for the selection or recall of one or more of the members of the City Council.

D. If, during the Term or any extended Term, Manager dies, Manager's estate shall receive Accrued Salary and Benefits, but shall not be entitled to any additional compensation or payment, including Severance.

E. In the event Manager is permanently disabled or is otherwise unable to perform his duties because of sickness, accident, injury, or mental incapacity for a period of three consecutive months beyond any provided sick leave, the City may terminate Manager's employment and this Agreement.
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F. Manager may resign from his employment at any time, upon giving forty- five (45) days written notice to the City Council.

7. Compensation and Annual Evaluation:

A. Manager's initial annual Base Salary shall be Two Hundred and Thirty Thousand Dollars ($230,000.00). Said amount shall be payable in monthly or bi-weekly installments at the same time and in the same manner as other employees of the City are paid. Increases in Managers Base Salary may be effective at any time in the sole discretion of the City Council.

B. The City, by the City Council, and Manager shall set mutually agreed-upon objectives for each year under this Agreement. The City Council shall evaluate the Manager's performance at least once a year. Following the annual evaluation, the Council may consider whether increased compensation is warranted. Any increase to salary will be memorialized in a written amendment to this Agreement.

C. The City Council and the Manager shall define such goals and performance objectives as they mutually determine are necessary for the proper operation of the City for the attainment of the City Council's policy objectives, and the City Council and the Manager shall further establish a relative priority among those goals and performance objectives. Such goals, objectives and priorities are subject to adjustment by the Parties at any time. Within six months of hire, the Council shall review and evaluate the Manager in accordance with the specific criteria developed jointly by the Council and Manager.

8. Benefits:

A. Vacation. Manager will be provided forty (40) hours of banked vacation time upon the commencement of this Agreement. Manager shall also be entitled to and accrue paid vacation consistent with the City Resolution and policies applicable to executive level employees with fifteen (15) years of service. Currently employees with such seniority are provided twenty five (25) vacation days per year. Accrual 5 26529.00017\31968746. I

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rates, caps and limits, application, and usage are governed by the City's policies and practices.

B. Sick Leave. Manager shall accrue ninety six (96) hours of paid sick leave per year, with sick leave accruing on a pro rata basis per pay period. To the extent permissible by state law, accrued sick leave may be used in the event of retirement as a credit towards PERS service. Accrual rates, caps and limits, application, and usage are governed by the City's policies and practices.

C. Administrative Leave. Manager will be provided forty (40) hours of banked administrative leave upon the commencement of this Agreement.

Manager shall also be entitled to and accrue administrative leave consistent with City policies and practices on an annual basis. Accrual rates, caps and limits, application, and usage are governed by the City's policies and practices.

D. Deferred Compensation. The City will adopt and establish a qualified deferred compensation plan pursuant to Section 457 of the Internal Revenue Code for the benefit of the Manager and will annually contribute into the qualified 457 account, the Manager's name, the amount of Seven Thousand and Five Hundred Dollars ($7,500).

Such contributions will be made in January of each year of this Agreement, except that the initial payment shall be prorated for the 2019 calendar year and made as soon as practicable. The City shall be responsible for all expenses associated with the 457 account during the remaining term of this Agreement, including but not limited to administrative services fees and commissions.

E. Automobile Allowance. The City shall pay Manager an automobile allowance in exchange for the Manager securing a personal vehicle to be used for City business or functions during, before, and after normal work hours. The automobile allowance shall be $500 per month. Manager shall be responsible for the costs of operation, repair, maintenance, and liability, property damage and comprehensive insurance for such personal vehicle. By the Manager making the Manager's personal 6 26529.00017\31968746.1

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automobile available for use, the Manager is not precluded from using City vehicles for City business during, before, and after the normal workday on occasion, when appropriate.

F. ICMA/ CCMF Dues and Other Professional Development. The City agrees to budget and pay the Manager's annual dues for membership in ICMA and CCMF. In addition, the City agrees, subject to the City's budget constraints and advance approval of Council, to pay expenses and allow City time for the following: (1) conference and meeting attendance and selected training opportunities, including, but not limited to, those associated with ICMA, CCMF, the League of California Cities, and other national, state, regional and/or local associations and organizations necessary and desirable for the good of the City and for the Manager's continued professional development; (2) professional dues and subscriptions on behalf of the Manager which are necessary for the Manager's continuation and full participation in national, state, regional or local associations and organizations, including civic clubs or organization, necessary and desirable for the good of the City and for the Manager's continued professional development; and (3) travel and subsistence expenses of the Manager to pursue official and other functions for the City, including, but not limited to, national, state, regional and/or local associations and organizations necessary and desirable for the good of the City and for the Manager's continued professional development.

G. Business Expenses. Within the City's budget constraints and subject to adopted City policies, the City shall pay for or provide the Manager reasonable reimbursement for all actual and necessary business expenses.

H. Relocation Reimbursement. As an incentive to relocating to a primary residence located within forty (40) miles of the City of Indian Wells City Hall, the City agrees to reimburse Manager up to Twelve Thousand Dollars ($12,000) in moving expenses. For the purpose of this Agreement, "moving expenses" shall include travel and lodging for no more than two (2) trips for the purpose of searching for a personal residence; one or more moving van for personal and practice-related possessions; 7 26529.00017\31968746. l

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packing of personal and practice-related possessions (including packaging materials); loading and unloading of personal and practice-related possessions; and relocation travel expenses for airfare or mileage.

I. All Other Benefits. With the exception of such benefits as outlined specifically in this Section, the City shall provide the Manager with other benefits, including but not limited to health, disability, and retirement benefits, consistent with those benefits provided to the City's other executive-level employees.

9. Abuse of Office or Position:

If Manager is convicted of a crime involving an abuse of his office or position, all of the following shall apply: (a) if Manager is provided with administrative leave pay pending an investigation, Manager shall be required to fully reimburse City such amounts paid; (b) if City pays for the criminal legal defense of Manager (which would be in its sole discretion, as it is generally not obligated to pay for a criminal defense), Manager shall be required to fully reimburse City such amounts paid; and (c) if this Agreement is terminated, any Severance Pay and Severance Benefits related to the termination that Manager may receive from City shall be fully reimbursed to City or shall be void if not yet paid to Manager. For purposes of this Section, abuse of office or position means either: (x) an abuse of public authority, including waste, fraud, and violation of the law under color of authority; or (y) a crime against public justice.

10. Enforcement of this Agreement:

The prevailing party in any action brought to enforce this Agreement or to resolve any dispute or controversy arising under its terms and conditions, shall be entitled to payment of his/her/its reasonable attorneys' fees and costs.

11. Communications Upon Manager's Separation:

In the event the City terminates the Manager for any reason or no reason, the City and the Manager agree that no member of the City Council, the City staff, nor the 8 26529.00017\31968746. I

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Manager, shall make any written, oral or electronic statement to any member of the public, the press, or any city employee concerning the Manager's termination except in the form of a joint press release or statement, the content of which is mutually agreeable to the City and the Manager. The joint press release or statement shall not contain any text or information that is disparaging to either party. Either party may verbally repeat the substance of the joint press release or statement in response to any inquiry.

12. Indemnification:

Consistent with the California Government Code, City shall defend, hold harmless, and indemnify Manager using legal counsel of City's choosing, against expense or legal liability for acts or omissions by Manager occurring within the course and scope of Manager's employment under this Agreement. Legal representation, provided by City for Manager, shall extend until a final determination of the issues including any and all losses, damages, judgments, interest, settlements, fines, court costs, and the reasonable costs and expenses of legal proceedings, including appeals, and including attorneys' fees, and expert witness fees and all other trial and appellate costs, and other liabilities incurred, imposed upon, or suffered by Manager in connection with or resulting from any claim, action, suit, or proceeding, actual or threatened. In the event there is a conflict of interest between City and Manager such that independent counsel is required for Manager, Manager may engage his/her own legal counsel, in which event City shall indemnify Manager, including direct payment of all such reasonable costs related thereto.

13. Notices:

Any notices to be given hereunder by either party to the other in writing may be effected either by personal delivery, mail, or email. Mailed notices shall be addressed to the parties as set forth below, but each party may change his/her/its address by written notice given in accordance with this Section. Notices delivered personally or by email will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated and received as of three (3) calendar days following the date of mailing. 9 26529.00017\31968746.1

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For the City:

Mayor and City Council
City of Indian Wells
44-950 Eldorado Dr.

Indian Wells, CA 92210
ATTN: Mayor
With copy to:

Jeff Ballinger, City Attorney
Best Best & Krieger LLP
74-760 Highway111, Suite 200
Indian Wells, CA 92210
For the Manager:

Chris Freeland

14. Conflict with City Charter or Municipal Code:

The City personnel ordinances, resolutions, rules and policies shall apply to Manager in the same manner as applied to other management employees, provided, however, in the event of a conflict between the provisions of this Agreement and the City Charter, or this Agreement and the Municipal Code, the City Charter or the Municipal Code shall prevail over this Agreement.

15. Entire Agreement:

This Agreement represents the entire agreement between the parties and supersedes any and all other agreements, either oral or in writing, between the parties with respect to the employment of Manager by City, and contains all of the covenants and agreements between the parties with respect to that employment. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by either party, or by anyone acting on behalf of either party, which are not embodied herein, and that no other employment agreement, statement, or promise not contained in this Agreement shall be valid or binding upon either party.

16. Modifications:

Any modifications to this Agreement shall be effective only if in writing and signed by both of the parties hereto.
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17. Effect of Waiver:

The failure of either party to insist upon strict compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be deemed a waiver of that term, covenant, or condition, nor shall any waiver or relinquishment of any right or power at any one time or times be deemed a waiver or relinquishment of that right or power for all or any other times.

18. Partial Invalidity:

If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

19. Governing Law:

This Agreement shall be governed by and construed in accordance with the laws of the State of California. Venue shall be in Riverside County.

20. Assistance of Counsel:

Each Party to this Agreement warrants to the other Party that it has either had the assistance of counsel in negotiation for, and preparation of, this Agreement or could have had such assistance and voluntarily declined to obtain it. [SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF , the Parties have executed this Agreement as of the 2 nd day of May , 2019 .

CITY OF INDIAN WELLS:

Mayor
Attest:
~ndys~
Approved as to Form :
26529.000 17\3 1968746.1
12 CHRIS FREELAND:

By : ______ __.::..__ ___ _
Chris Freeland

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EXHIBIT "A"

CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE
This Agreement is entered into on [ ] , by and between [ ] (hereinafter "Employee") and the CITY OF INDIAN WELLS (hereinafter "Employer'} Said parties shall be collectively referred to as the "Parties." Employee is currently employed as an L..[ ______ __.] for Employer. During the course of Employee's employment issues arose concerning Employee's continued employment. The Parties mutually desire to settle all of their present and possible future differences, disputes, or claims relating to and arising out of the employment and, therefore, the Parties agree as follows:

1. CONSIDERATION & REVOCATION PERIOD. This Agreement was presented to Employee for consideration on .... [ _________ __.]. From that date, Employee has twenty one days to consider the Agreement, though he is free to execute the Agreement prior to the end of that period if he so chooses. Following the execution of the Agreement, Employee has seven days in which to revoke. Such revocation must be made in writing and be personally delivered to the City Attorney. The effective date of this Agreement ("Effective Date") will be at 5:01 p.m. on the eighth day following Employer's receipt of Employee's signed Agreement.

2. SEPARATION TERMS. Employee agrees not to contest his separation from employment as of[ ] ("Separation Date"). Employee agrees that, as of the Separation Date, he will have already returned any and all equipment or other property belonging to Employer.

In return, Employer agrees to pay Employee severance pay in the total amount equal to [ ] months of his current monthly base salary, subject to all lawful deductions and taxes applicable to wages. This amount is in addition to compensation provided as final wages owed. The severance pay will be paid on Employer's first regular payday following the Effective Date of this Agreement and shall be subject to all regular withholdings and legally required taxes.

3. GENERAL RELEASE. Employee voluntarily and irrevocably releases and discharges Employer and its shareholders, directors, officers, elected or appointed officials, employees, fiduciaries, insurers, agents, successors, and assigns (collectively, "Released Parties") from and against any and all individual relief claims, obligations, debts, demands, judgments, or causes of action of any kind whatsoever, known or unknown, actual or contingent, whether brought at law, in equity or otherwise, based on tort, contract, statute, or on any other basis, which Employee has EXHIBIT A -Page 1
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or may have against any of them or liability they may have to Employee (collectively, "Claims"), which arise from or are related to Employee's employment or relationship with the Employer or any other Released Party, Employee's separation from employment from any of them, or any other matter, cause or thing whatsoever which may have occurred involving Employee and any Released Party prior to the date of Employee's acceptance of this Agreement. This release also includes all Claims for equitable relief, actual, compensatory, consequential, punitive, special, multiple, or other damages, expenses (including without limitation attorneys' fees and court costs. This release includes, without limitation, any and all Claims Employee has or may have against the Employer or any other Released Party arising under any federal, state, local, or foreign statute, common or other law, including without limitation those relating to the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, the Civil Rights Acts of 1866, 1871, 1964 and 1991, the Equal Pay Act of 1963, the Employee Retirement Income Security Act of 1974, the Internal Revenue Code of 1986, the Fair Labor Standards Act of 1938, the Family and Medical Leave Act of 1993, the Labor Management Relations Act of 1947, the National Labor Relations Act, the Rehabilitation Act of 1973, the California Labor Code, the California Fair Employment and Housing Act.

4. CIVIL CODE SECTION 1542 WAIVER. Employee agrees that the Released Claims include not only claims presently known to Employee but also include all unknown or unanticipated claims. Employee understands that he may later discover facts different from what they now believe to be true, which if known, could have materially affected this Agreement, but he · nevertheless waives any claims or rights based on different or additional facts. Employee knowingly and voluntarily waives any and all rights or benefits that he may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code, which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR

OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXISTS IN HIS OR HER

FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY

HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

Notwithstanding the provisions of Section 1542, this Agreement is also intended to include all claims which Employee does not know or suspect to.exist at the time this Agreement's execution.

EXHIBIT A -Page 2
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5. NO ACTIONS. Employee affirms that he currently has no action, charge, or administrative claim pending before any court oflaw, governmental body, or administrative agency, either on the federal or state level. Employee agrees he will not at any time in the future pursue any employment personnel appeal or internal grievance or file any claim for individual relief with any governmental agency or any court arising out of or in any way related to his employment. Employee affirms that he is unaware of any issue relating to Employer's non-compliance with regulatory obligations.

6. RELEASE CARVE OUT. Notwithstanding the provisions of paragraphs 3-5, Employee's released claims shall not include any claims based on obligations created by or reaffirmed in this Agreement, nor shall Employee's released claims include claims which expressly cannot be waived according to California Labor Code Section 2804. Nor shall anything in this Agreement be construed to prohibit Employee from filing a charge with or participating in any investigation or proceeding conducted by the Public Employment Relations Board (PERB), U.S. Equal Employment Opportunity Commission (EEOC), California Department of Fair Employment and Housing (DFEH), or any other governmental agency. Notwithstanding the foregoing, Employee hereby agrees to, and does, waive his right to recover monetary damages in any charge or lawsuit filed by Employee or anyone else on his behalf.

7. NO RE-EMPLOYMENT. As of the date of this Agreement, Employee has not applied for, sought, or accepted re-employment with Employer. Employee knowingly and voluntarily waives all rights he may have under federal or state law to reinstatement and acknowledges that Employer may, in its discretion, refuse to consider any application for re-employment.

8. NO DEFAMATION. The Employee may not disparage customers, suppliers, vendors nor may Employee defame Employer, its management, its employees, agents, officers, elected or appointed officials, shareholders, or affiliates. Employee agrees to refrain from making public statements regarding his subjective opinion regarding Employer or his employment actions. This obligation is not intended to prohibit lawful interactions with governmental agencies as referred to in paragraph 6.

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the terms of this Agreement, or Employee's subjective opinion relating to the negotiations, the Agreement, or his prior employment may be disclosed to anyone, including without limitation, any person, corporation, or other business entity for any purpose. Should any inquiry be made, the Employee may respond only by indicating that the separation was amicable.

If Employee becomes legally compelled by deposition, subpoena, interrogatory, request for documents, or similar legal process, he shall immediately notify the Employer telephonically and confirmed in writing, so that the Employer will have the opportunity to intervene. This obligation is not intended to prohibit lawful interactions with governmental agencies as referred to in paragraph 6.

10. NO ASSIGNMENT. The Parties hereto each warrant that they have made no assignment and will make no assignment of any claim, right of action, or any right of any kind whatsoever embodied in any of the Released Claims and that no other person or entity of any kind had or has any interest in the same.

11. NO ADMISSION OF LIABILITY. This Agreement is solely for the purpose of compromising on the issue of separation of employment. It does not constitute, nor shall it be construed, as an admission of the truth or validity of any claims asserted. All communications made in conjunction with this Agreement shall be governed and protected in accordance with the Federal Rule of Evidence 408 and California Evidence Code sections 1150, et seq.

12. ENTIRE AGREEMENT. This is the entire Agreement between the Parties pertaining to the separation of employment or any disputes or claims arising during the course of employment, and it supersedes all prior or contemporaneous agreements, negotiations, or discussions, whether oral or written, express or implied. No supplements, modifications, or waivers of this Agreement shall be binding unless executed by written amendment.

13. COUNTERPARTS. This Agreement may be executed in any number of counterparts, including those executed by facsimile, each of which shall be deemed an original but all of which taken together shall constitute one Agreement.

14. ATTORNEYS' FEES. In ·the event of legal proceedings to enforce the terms of this Agreement, necessary to declare rights hereunder, or as the result of the breach of this Agreement, the prevailing party in any such proceeding shall be entitled to recover from the losing party reasonable costs and attorneys' fees, including but not limited to the out-of-pocket expenses of attorneys and out-of-pocket expenses of experts.

EXHIBIT A -Page 4
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15. NEGOTIATED AGREEMENT. Employee acknowledges and agrees that Employer has recommended use of independent counsel or labor representation, if relevant, throughout all negotiations that preceded the execution of this Agreement. Any choice to forgo such use is of the Employer's own will. This Agreement is the result of arms-length negotiations and expresses the complete, actual, and intended agreement of the Parties.

16. WAIVER & SEVERABILITY. Failure to insist on compliance with any term, covenant, or condition contained in this Agreement shall not be deemed a waiver of the same. If any provision is held to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances shall remain in full force and effect.

THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.

THE SIGNATORIES FULLY UNDERSTAND THE FINAL AND BINDING EFFECT OF THIS AGREEMENT AND ARE SIGNING VOLUNTARILY.

CITY OF INDIAN WELLS:

By: _________ _
TED J. MERTENS
MAYOR
EMPLOYEE:

By: _________ _

CHRIS FREELAND

EMPLOYEE
EXHIBIT A -Page 5
26529.00017\31968746. I

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CITY OF INDIAN WELLS

FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to the Employment Agreement - City Manager (this "First Amendment") between the City of Indian Wells (the "City') and Chris Freeland (the "Employee" or "Manager") is entered into this 4th day ofJune, 2020.

Except as modified in this First Amendment, the Employment Agreement originally dated May 2, 2019 ('Agreement") between the City and the Employee shall remain in full force and effect.

The parties to this First Amendment agree to the following changes:
l. Section 4 entitled "Term" is hereby amended to renew the Agreement and extend its terms an additional year as follows:
"4. b':

The term of this Agreement will commence on May 13, 2019, and shall continue until Mav 13. 2025, or the date of earlier termination in accordance with provisions in this Agreement. In the event that the City Council determines that the Manager is not to be reemployed upon expiration of this Agreement, he shall be given written notice thereof by the City Council at least one hundred and twenty (120) days in advance of the final year of this Agreement, Failure to provide timely written notice provided for in this Section shall result in the Agreement being extended on the same terms for additional periods of one (l ) year on each occasion. This renewal clause and its notice provision shall apply to all subsequent terms under this Agreement."

2. Section 7 entitled ooCompensation and Annual Evaluation" is hereby amended at subsection A to increase salary by an additional $10,000 per year:
,r7. :

A. Manager's annual Base Salary shall be Two Hundred and Fortv Thousand Dollars ($2400.00.00). Said amount shall be payable in monthly or bi-weekly installments at the same time and in the same manner as other employees of the City are paid. Increases in Manager's Base Salary may be effective at any time in the sole discretion of the City Council." 26529.000 I ?\3297 65 4 6. I
Page I I
ATTACHMENT #2

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3. Section 8 entitled "Benefits" is hereby amended at subsection D to increase defened compensation by $12,000 per year:
"8. @:

D. Deferred Comnensation. The City will adopt and establish a qualified deferred compensation plan pursuant to Section 40la of the Internal Revenue Code for the benefit of Manager and will annually contribute into the qualified 40la account, in the Manager's name, the amount of Nineteen Thousand and Five Hundred Dollars ($19.500.00).

Such contributions will be made in January of each year of this Agreement in addition to the current 2.5Yo 40la benefit provided to all fulltime employees. The City shall be responsible for all expenses associated with the 401a account during the remaining term of this Agreement, including but not limited to administrative services fees and commissions."

4. Section 8 entitled o'Benefits" is hereby amended at subsection I to clarify that Employee is afforded the same level of leave cash out and retiree medical benefits afforded to other City employees:
'08. Benefits:

5. Section 6 entitled "Termination of Employment and this Agreement; Severance" is hereby amended at subsection A, along with its referenced attachment, to clari$ that Employee would be entitled to the continuation of health benefits:
"6. Termination of Emnlovment and this Asreement: Severance:

A. If City terminates this Agreement (thereby terminating Manager's employment) without cause, as determined by the afftrmative votes of a majority of the members of the City Council at a Regular Meeting of the City Council, and if Manager signs, delivers to the City Council, and does not revoke, the General Release Agreement ("Release Agreement") in the form attached hereto as Exhibit A (as attached to the First Amendment to Emnlovment Aqreemen0. City shall pay Manager a lump sum benefit equal to (l) payment equal to nine (9) months of Manager's 26s29.000 I 7\3297 65 4 6. t
Page | 2

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Base Salary; or (2) payrnent equal to the r-urexpired Terrn ol'this Agreement, as described in Sectiorr 4 above. rvhichcver amount is less. In addition to the Severarrce pay, Manager shall receive continuation ol'health benelits, as well as clental, vision. and life insurance bcnefits. lbr rline (9) montlrs or until he finds other employment that provides guch benelils, whichever occul's first. (the foregoillg salary and health benefits shall be rel''erred to collectively as "Sevel?tlce.oo)"
The City and the Emplol,ee have duly executed this First Amerrclment as ol'the date lirst written above.

IN WITNESS WI-IEREOF, the parties have executed this Agreement ou the 4th day ol'.lune 2020.

CITY OF INDIAN WELLS CHRISTOPI{I]R.I. FRAELAND
I3y: fy By: Christopher.l. F

AT'TEST
Grandys,C
APPROVED AS TO FORM:

Je n Attorney
26529.000 I 7\3297654(t. I
Page | 3

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EXHIBIT A

CONFIDENTIAL SEPARATION AGREEMENT AND RELEASE
This Agreement is entered into on , by and between
CHRISTOPHER J. FREELAND (hereinafter "Employee") and the CITY OF INDIAN WELLS (hereinafter "Employer"). Said parties shall be collectively referred to as the "Parties." Employee is currently employed as an CITY MANAGER for Employer. During the course of Employee's employment issues arose concerning Employee's continued employment. The Parties mutually desire to settle all of their present and possible future differences, disputes, or claims relating to and arising out of the employment and, therefore, the Parties agree as follows:
l. CONSIDERATION & REVOCATION PEzuOD. This Agreement was presented to Employee for consideration on . From that date, Employee has twenty one days to consider the Agreement, though he is free to execute the Agreement prior to the end of that period if he so chooses. Following the execution of the Agreement, Employee has seven days in which to revoke. Such revocation must be made in writing and be personally delivered to the City Attomey. The effective date of this Agreement ("Effective Date') will be at 5:01 p.m. on the eighth day following Employer's receipt of Employee's signed Agreement. 2, SEPARATION TERMS. Employee agrees not to contest his separation from employment as of ("separation Date"). Employee agrees that, as ofthe Separation Date, he will have already returned any and all equipment or other property belonging to Employer.

In return, Employer agrees to pay Employee severance pay in the total amount equal to nine (9) months' of his current monthly base salary ("severance Pay"), subject to all lawful deductions and taxes applicable to wages. This amount is in addition to compensation provided as final wages owed. The severance pay will be paid on Employer's first regular payday following the Effective Date of this Agreement and shall be subject to all regular withholdings and legally required taxes.

In addition. Emnlover shall nrovide Emnlovee continuation of his health. dental vision. and life insurance benefits for nine (9) months followine the Senaration Date or until he finds other emnloyment that nrovides such benefits. whichever occurs first ("Benefit Continuation"). The Severance Pav and Benefit Continuation shall constitute consideration for this Aqreement and shall be referred to collectivelv as Emnlovee's "Severance."

3. GENERAL RELEASE, Employee voluntarily and inevocably releases and discharges Employer and its shareholders, directors, officers, elected or appointed officials, employees, 26529.000 I 7 V297 65 46. I
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fiduciaries, insurers, agents, successors, and assigns (collectively, "Released Parties") from and against any and all individual relief claims, obligations, debts, demands, judgments, or causes of action of any kind whatsoever, known or unknown, actual or contingent, whether brought at law, in equity or otherwise, based on tort, contract, statute, or on any other basis, which Employee has or may have against any of them or liability they may have to Employee (collectively, "Claims"), which arise from or are related to Employee's employment or relationship with the Employer or any other Released Party, Employee's separation from employment from any of them, or any other matter, cause or thing whatsoever which may have occurred invoiving Employee and any Released Party prior to the date of Employee's acceptance of this Agreement. This release also ineludes all Claims for equitable relie{ actual, compensatory, consequential, punitive, special, multiple, or other damages, expenses (including without limitation attorneys' fees and court costs). This release includes, without limitation, any and all Claims Employee has or may have against the Employer or any other Released Party arising under any federal, state, local, or foreign statute, common or other law, including without limitation those relating to the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, the Civil Rights Acts of 1866, 1871, 1964 and 1991, the Equal Pay Act of 1963, the Employee Retirement Income Security Act of 1974, the Internal Revenue Code of 1986, the Fair Labor Standards Act of 1938, the Family and Medical Leave Act of 1993, the Labor Management Relations Act of 1947,the National Labor Relations Act, the Rehabilitation Act of 1973, the California Labor Code, the California Fair Employment and Housing Act.

4. CIVL CODE SECTION 1542 WAIVER. Employee agrees that the Released Claims include not only claims presently known to Employee but also include all unknown or unanticipated claims. Employee understands that he may later discover facts different from what they now believe to be true, which if known, could have materially affected this Agreement, but he nevertheless waives any claims or rights based on different or additional facts. Employee knowingly and voluntarily waives any and all rights or benefits that he may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code, which provides as follows:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR

OR RELEASINC PARTY DOES NOT KNOW OR SUSPECT TO EXISTS IN HIS OR HER

FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT,IF KNOWN BY 26529.AA0 I 7 \3297 6s 46. t
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HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

Notwithstanding the provisions of Section 1542, this Agreement is also intended to include all claims which Employee does not know or suspect to exist at the time this Agreement's execution.

5. NO ACTIONS. Employee affirms that he currently has no action, charge, or administrative claim pending before any court of law, goverrrmental body, or administrative agency, either on the federal or state level. Employee agrees he will not at any time in the future pursue any employment personnel appeal or internal grievance or file any claim for individual relief with any governmental agency or any court arising out of or in any way related to his employment. Employee affirms that he is unaware of any issue relating to Employer's non-compliance with regulatory obligations.

6. RELEASE CARVE OUT. Notwithstanding the provisions of paragraphs 3-5, Employee's released claims shall not include any claims based on obligations created by or reaffirmed in this Agreement, nor shall Employee's released claims include claims which expressly cannot be waived according to California Labor Code Section2804. Nor shall anything in this Agreement be construed to prohibit Employee from filing a charge with or participating in any investigation or proceeding conducted by the Public Employment Relations Board (PERB), U.S. Equal Employment Opportunity Commission (EEOC), California Department of Fair Employment and Housing (DFEH), or any other govemmental agency. Notwithstanding the foregoing, Employee hereby agrees too and does, waive his right to recover monetary damages in any charge or lawsuit filed by Employee or anyone else on his behalf.

7. RE-EMPLOYMENT. As of the date of this Agreement, Employee has not applied for, sought, or accepted re-employment with Employer. Despite the confidential nature of this Agreement, Employer may review prior performance history in determining whether to consider any future application for re-employment. Nothing about this section shall be interpreted to allow Employer to refuse consideration or rehire on the basis of prior allegations of unlawful conduct.

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9. CONFIDENTIALITY. The Parties acknowledge that they have not discussed or disclosed any of the terms of this Agreement to anyone, except for their attorneys. Except as such disclosure may occur to Employee's attorneys or accountants or as otherwise may be required by law, or in response to any subpoena, Employee agrees the terms of this Agreement and all negotiations between the Parties shall be kept strictly confidential and neither the details of the negotiations, the terms of this Agreement, or Employee's subjective opinion relating to the negotiations, the Agreement, or his prior employment may be disclosed to anyone, including without limitation, any person, corporation, or other business entity for any purpose. Should any inquiry be made, the Employee may respond only by indicating that the separation was amicable.

If Employee becomes legally compelled by deposition, subpoena, intenogatory, request for documents, or similar legal process, he shall immtdiately notify the Employer telephonically and sonfirmed in writing, so that the Employer will have the opportunity to intervene. This obligation is not intended to prohibit lawful interactions with governmental agencies as referred to in paragraph 6.
i0. NO ASSIGNMENT. The Parties hereto each warrant that they have made no assignment and will make no assignment of any claim, right of action, or any right of any kind whatsoever embodied in any of the Released Claims and that no other person or entity of any kind had or has any interest in the same.
ll. NO ADMISSION OF LIABILITY. This Agreement is solely for the purpose of compromising on the issue of separation of employment. It does not constitute, nor shall it be construed, as an admission of the truth or validity of any claims asserted. All communications made in conjunction with this Agreement shall be governed and protected in accordance with the Federal Rule of Evidence 408 and California Evidence Code sections I150, et seq.

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14. ATTORNEYS' FEES. In the event of legal proceedings to enforce the terms of this Agreement, necessary to declare rights hereunder, or as the result of the breach of this Agreement, the prevailing party in any such proceeding shall be entitled to recover from the losing party reasonable costs and attorneys' fees, including but not limited to the out-of-pocket expenses of attorneys and out-of-pocket expenses of experts.

15. NEGOTIATED AGREEMENT. Employee acknowledges and agrees that Employer has recommended use of independent counsel or labor representation, if relevant, throughout all negotiations that preceded the execution of this Agreement. Any choice to forgo such use is of the Employee's own will. This Agreement is the result of armslength negotiations and expresses the complete, actual, and intended agreernent of the Parties.

16. WAMR & SEVERABILITY. Failure to insist on compliance with any term, covenant, or condition contained in this Agreement shall not be deemed a waiver ofthe same. If any provision is held to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places, and circumstances shall remain in full force and effect.

THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.

THE SIGNATORIES FULLY UNDERSTAND THE FINAL AND BINDING EFFECT OF THIS AGREEMENT AND ARE SIGNING VOLI.JNTARILY.

CITY OF INDIAN WELLS:EMPLOYEE:

By:By
Ty Peabody, Mayor Christopher J. Freeland
26529.0A0 I 7V297 6 5 46. I
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ATTACHMENT #3

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CITY OF'INDIAN WELLS

THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
This Third Amendment to the Employment Agreement City Manager (this "Third Amendment") between the City of Indian Wells (the "City") and Chris Freeland (the "Employee" or "Manager") is entered into this 16 day of December 2021.

Except as modified in this Third Amendment and the preceding First and Second Amendments, the Employment Agreement originally dated May 2,2019 ("Agreement") between the City and the Employee shall remain in full force and effect.

The parties to this Third Amendment agree to the following changes:
l. Section 4 entitled "Term" is hereby amended to renew the Agreement and extend its term by an additional one year and seven months as follows:
"4. Term:

The term of this Agreement will commence on May 13, 2019, and shall continue until December 31. 2028, or the date of earlier termination in accordance with provisions in this Agreement. In the event that the City Council determines that the Manager is not to be reemployed upon expiration of this Agreement, he shall be given written notice thereof by the City Council at least one hundred and twenty (120) days in advance of the final year of this Agreement. Failure to provide timely written notice provided for in this Section shall result in the Agreement being extended on the same terms for additional periods of one (1) year on each occasion.

This renewal clause and its notice provision shall apply to all subsequent terms under this Agreement."

2. Section 7 entitled "Compensation and Annual Evaluation" is hereby amended at subsection A to increase the Manager's annual Base Salary by $10,000.00:
"7. Compensation and Annual Evaluation:

A. Effective July l, 2021, Manager's initial annual Base Salary shall be Two Hundred and Fifty Thousand Dollars ($250,000.00).

Said amount shall be payable in monthly or bi-weekly installments at the same time and in the same manner as other employees of the City are paid.

Increases in Manager's Base Salary may be effective at any time in the sole discretion of the City Council."
26s29 00000\3457I 595 4
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ATTACHMENT #4

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3. Section 3 entitled "Bsnefits" is hereby amended at subsection A to provide a one-time addition of 120 hours to the Manager's accrued vacation time bank:
"8. Benefits:

A. Vacation. Manager will be provided one hundred twenty (120) hours of banked vacation time upon the commencement of this Third Amendment. Manager shall also be entitled to and accrue paid vacation consistent with the City Resolution and policies applicable to executive level employees with fifteen (15) years of service. Currently employees with such seniority are provided twenty-five (25) vacation days per year. Accrual rates, caps and limits, application, and usage are governed by the City's policies and practices."
The City and the Employee have duly executed this Third Amendment as of the date first written above.

IN WITNESS WHEREOF, the parties have executed this Agreement on the 16 day of December 2021.

CITY OF INDIAN WELLS CHRIS FREELAND
E-SIGNED by Dana Reed
on 2821-12-17 08.O3:14 PST
E-SIGNED ;by Christopher Freeland
on'2021.12-16 1 5:44:50 PST
By: Dana Reed, Mayor
ATTEST:

By: Chris Freeland
E-SIGNED by Angelica Avila
on 2O21-tr2-17 08:05:02 PST
Angelica Avila, City Clerk
APPROVED AS TO FORM:

E-SIGNEP by Todd Leishman
on 2021-12-1 7 05:50: 1 9 PST
Todd R. Leishman, City Attorney
26529.00000\34s7 I s9s.4
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CITY OF INDIAN WELLS

FOURTH AMENDMENT TO

CITY MANAGER EMPLOYMENT AGREEMENT
This Fourth Amendment to City Manager Employment Agreement (this “Fourth Amendment”), effective November 3, 2022, is between the City of Indian Wells (the “City”) and Chris Freeland (the “Employee” or “Manager”).

Except as modified by this Fourth Amendment and the preceding First, Second, and Third Amendments, the Employment Agreement originally dated May 2, 2019 (“Agreement”) between the City and the Manager remains in full force and effect.

The parties to this Fourth Amendment agree to the following changes:

1.Section 4 entitled “Term” is hereby amended to renew the Agreement and extend its term by an additional one year, to read now as follows:
“4. Term:

The term of this Agreement will commence on May 13, 2019, and shall continue until December 31, 2029, or the date of earlier termination in accordance with provisions in this Agreement. In the event that the City Council determines that the Manager is not to be reemployed upon expiration of this Agreement, he shall be given written notice thereof by the City Council at least one hundred and twenty (120) days in advance of the final year of this Agreement. Failure to provide timely written notice provided for in this Section shall result in the Agreement being extended on the same terms for additional periods of one (1) year on each occasion. This renewal clause and its notice provision shall apply to all subsequent terms under this Agreement.”

2.Section 7 entitled “Compensation and Annual Evaluation,” subsection A, is hereby amended to increase the Manager’s annual Base Salary by $12,000.00, to read now as follows::
“7. Compensation and Annual Evaluation:

A.Effective July 1, 2022, Manager’s initial annual Base Salary shall be Two Hundred and Sixty-two Thousand Dollars ($262,000.00). Said amount shall be payable in monthly or bi-weekly installments at the same time and in the same manner as other employees of the City are paid.

Increases in Manager’s Base Salary may be effective at any time in the sole discretion of the City Council.”
ATTACHMENT #5

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3. Section 3 entitled “Benefits” is hereby amended at subsection A to provide a one-time addition of 40 hours to the Manager’s bank of accrued vacation time, to read as follows:

“8. Benefits:

A. Vacation. Manager will be provided an additional forty (40) hours of banked vacation time upon the commencement of this Fourth Amendment. Manager shall also be entitled to and accrue paid vacation consistent with the City Resolution and policies applicable to executive level employees with fifteen (15) years of service. Currently, employees with such seniority are provided twenty-five (25) vacation days per year.

Accrual rates, caps and limits, application, and usage are governed by the City’s policies and practices.”

IN WITNESS WHEREOF, the parties have executed this Fourth Amendment as indicated below.

CITY OF INDIAN WELLS

____________________________________
By: Dana Reed, Mayor
Date:

CHRIS FREELAND

______________________________________
By: Chris Freeland
Date:

ATTEST:

____________________________________
Angelica Avila, City Clerk

APPROVED AS TO FORM:

______________________________
Todd R. Leishman, City Attorney

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INDIAN WELLS CITY COUNCIL
November 3, 2022

To: City Council
From: Finance Department
Prepared by: Kevin McCarthy, Finance Director
Subject: Recommendation to Approve Resolution Amending the Community Assistance Funding Policy

RECOMMENDED ACTION:

Council APPROVES Amending the Community Assistance Funding Policy.

DISCUSSION:

During the October 3, 2022, City Council Meeting, Council offered direction to amend the Community Assistance Funding Policy to provide the Council an annual source of discretionary funding for Community Assistance not necessarily in the purview of the Grants-in-Aid program.

The City’s Community Assistance Funding Policy is bifurcated into (1) Community Assistance Funding, defined as annually budgeted funding set aside to financial aid- worthy non-profit organizations within the Coachella Valley, and (2) Extraordinary Funding Requests, defined as singular funding requests of $250,000 or more requiring community support. Based on the Council comments at the October 3rd City Council meeting, staff recommends changes to both types of funding requests.

Community Assistance Funding:

The proposed amendment splits Community Assistance Funding into two separate pools.

The Grants-in-Aid program shall receive 80% of the available funding up to $160,000.

The second pool shall operate at the sole discretion of the City Council and will receive the remaining 20% of the funding up to $40,000.

To preserve the existing $160,000 maximum funding level of the Grants-in-Aid program and to fund the new City Council discretionary pool, Staff recommends Council increase the maximum Community Assistance Program funding level to $200,000.

Extraordinary Funding Requests
Under the existing policy, funding for the Community Assistance Funding is subject to a formula based on net surplus and has a maximum funding cap of $160,000. For each

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new budget year, the amount of the community assistance funding budget shall be established by calculating twenty-five percent (25%) of the prior year’s General Fund’s Net Change in Fund Balance (after all capital contributions) using year-end estimates established during the last quarter of each fiscal year.

If funds are insufficient, the amount of community assistance funding shall be reduced or eliminated until all criteria have been met. Unexpended community assistance funds from either pool shall not be carried forward into the next fiscal year. To assist the City in selecting community-based organizations, the City established the Grants-In-Aid committee consisting of residents appointed by the City Council to review, evaluate, and recommend funding to the City Council.

Extraordinary Funding Requests:

Staff recommends Council reduce the funding level for Extraordinary Funding Requests from $250,000 to $200,000. Reducing Extraordinary Funding Requests will accomplish two positive results: (1) it will eliminate the funding gap between regular Community Assistance Funding and Extraordinary Funding Requests, and (2) by lowering the funding to $200,000, the City Council will invite more public engagement opportunities into the community.

The Extraordinary Funding Request is not subject to a funding formula and begins at a minimum of $250,000. However, the Extraordinary Funding Request is subject to the following public engagement procedures:

 Review by the Extraordinary Grants Committee consisting of???.

 A minimum of one public hearing and one public Town Hall event at the applicant’s expense.

 Written communication sent to residents via US Postal Service , which includes summary information on the funding request, the budgetary impact to the City that is funded, and the date, time, and location of the Public Hearing and Town Hall meeting to accept community input on proposed funding. Each mailing shall be at the expense of the Applicant.

 A Community-wide mail survey or cloud-based online civic engagement platform/poll shall be used to provide an additional vehicle to inform and provide community feedback regarding the funding proposal

California Environmental Quality Act (CEQA):

This action has been reviewed per the authority and criteria contained in the California Environmental Quality Act (CEQA), the State and local CEQA Guidelines, and the City's

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environmental regulations. The City, acting as the Lead Agency, determined that the ordinance is not subject to CEQA pursuant to Sections 15060(c)(2), 15060(c)(3), and 15061(b)(3) of the State CEQA Guidelines, because it will not result in a direct or reasonably foreseeable indirect physical change to the environment as there is no possibility that the action would result in a significant environmental impact, and because it does not constitute a “project” as defined in Section 15378 of the State CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3.

FISCAL IMPACT

Implementing a City Council discretionary funding pool will increase the annual Community Assistance Funding budget by a maximum of $40,000 under the formula.

Should the Council decide to implement the amended policy into the Fiscal Year 2022-23, additional funding of $40,000 is required based on the formula. Funding is recommended using the following sources:

 $25,000 from the City’s Community Assistance Program
 $15,000 from the City’s Sponsorship Program

No additional appropriation is being requested.

ATTACHMENTS:

1. Resolution

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RESOLUTION NO. 2022-40

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIAN WELLS,

CALIFORNIA, ADOPTING A COMMUNITY ASSISTANCE FUNDING POLICY

AND RESCINDING PRIOR DISCRETIONARY FUNDING POLICIES
WHEREAS, the City Council of the City of Indian Wells recognizes the importance of a prudent long-term financial plan, as well as the value in providing financial assistance to organizations whose work benefits the City and the Coachella Valley; and WHEREAS, the City desires and intends to adopt a funding plan for community assistance expenditures consistent with a prudent long-term financial plan; and WHEREAS, the City desires and intends to amend the funding plan to make provisions for pledging monies.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIAN WELLS, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:

SECTION 1. The City Council hereby RESCINDS prior resolutions amending or approving the Community Assistance Policy, including Resolution No. 2017-04.

SECTION 2. The City Council hereby ADOPTS that specific Community Assistance Funding Policy set forth in Exhibit “A” attached hereto and incorporated herein by reference.

SECTION 3. This Resolution shall take effect upon adoption.

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Indian Wells, California, at a regular meeting held on this 3rd day of November 2022. _________________________________

DANA REED
MAYOR
ATTACHMENT #1

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City of Indian Wells
Resolution No. 2022-40

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CERTIFICATION FOR RESOLUTION NO. 2022-40

I, Angelica Avila, City Clerk of the City Council of the City of Indian Wells, California, DO HEREBY CERTIFY that the whole number of the members of the City Council is five (5); that the above and foregoing Resolution was duly and regularly passed and adopted at a regular meeting of the City Council of the City of Indian Wells on the 3rd day of November 2022, by the following vote:

AYES:

NOES:

ATTEST: APPROVED AS TO FORM:

___________________________________ _________________________________

ANGELICA AVILA TODD LEISHMAN

CITY CLERK CITY ATTORNEY

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City of Indian Wells
Resolution No. 2022-40

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EXHIBIT “A”

CITY OF INDIAN WELLS

COMMUNITY ASSISTANCE FUNDING POLICY

1. PURPOSE OF THIS POLICY

The Policy's purpose is to establish annual procedures and approvals associated with funding community assistance expenditures during the development of the City budget. In addition, the Policy sets defined processes to ensure the City's financial goals are maintained, and opportunities for public input are available.

The City Council defines community assistance funding as optional expenditures that the City Council can disburse annually to financial aid-worthy non-profit organizations within the Coachella Valley that provide services that the City may not otherwise offer.

Budgetary approval is required for all community assistance funding. The City Council will publicly discuss community assistance funding at budgetary study sessions and council meetings during the review and adoption of the City budget. Public input is essential during these meetings.

2. COMMUNITY ASSISTANCE FUNDING

Community Assistance Funding for each new budget year shall be established as follows:

a) For each new budget year, the amount of the community assistance funding budget shall be established by calculating twenty-five percent (25%) of the prior year’s General Fund’s Net Change in Fund Balance (after all capital contributions) using year-end estimates established during the last quarter of each fiscal year.

b) Maximum funding shall not exceed $200,000 during each budget year.

c) Annual funding shall be split into two separate pools. The Grants-in-Aid program shall receive 80% of the available funding. The second pool shall operate at the sole discretion of the City Council and will receive the remaining 20% of the available funding.

d) The City has qualified its ability to meet its financial obligations under the current General Fund cash flow plan as approved and amended by the Finance Committee and consistent with the adoption of the City’s Annual Budget.

e) If funds are insufficient, the amount of community assistance funding shall be reduced or eliminated until all criteria have been met.

f) Unexpended community assistance funds from either pool shall not be carried forward into the next fiscal year.

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City of Indian Wells
Resolution No. 2022-40

Page 4 ends

3. EXTRAORDINARY FUNDING REQUESTS IN EXCESS OF $200,000

Extraordinary funding requests received by the City of more than $200,000 shall be considered separately from the policy requirements set forth above and shall be subject to the following criteria prior to City Council approval:

A. City staff shall request and require documentation in keeping with Community Assistance Grant Program Requirements. The Extraordinary Grants Committee will review the funding proposal as required for all Community Assistance Grants. The Committee shall make a written recommendation to the City Council of their findings.

B. A staff report summarizing the Committee’s recommendations shall be placed on the City Council agenda for consideration.

C. The Applicant shall have the opportunity to present to the Council when the item is scheduled for Council consideration.

D. If the City Council approves by a majority vote to move the item forward, a Community Involvement component will be required. The Applicant will oversee and direct the Community Involvement component at the Applicant’s own expense. This component shall include a program to inform the public about the long-range financial impact, share the funding proposal, and obtain feedback from the community. This will be accomplished through press releases, distributing informational materials pertinent to the proposal, public hearings, meetings, and surveys. The following steps must be taken and reviewed before a final decision by the City Council regarding the potential funding of a proposal exceeding $200,000:

i. The City will hold a minimum of one Public Hearing and Town Hall meeting to discuss the said proposal with the Applicant present.

ii. A minimum of one written communication shall be sent via U.S. Postal Service to all Indian Wells residents to include summary information on the funding request, the budgetary impact to the City is funded, and the date, time, and location of Public Hearing and Town Hall meeting to accept community input on proposed funding. Each mailing shall be at the expense of the Applicant.

iii. The Applicant shall cause to be submitted to the media no less than one press release announcing the date, time, and location of the public hearing or meeting held to discuss and take testimony regarding the funding proposal.

iv. A Community-wide mail survey or cloud-based online civic engagement platform/poll shall be used to provide an additional vehicle to inform and provide community feedback as it relates to the funding proposal. Each poll shall be at the expense of the Applicant. A subsequent report on the poll

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City of Indian Wells
Resolution No. 2022-40

Page 5 ends

results shall be provided to the City Council.

v. The City Council shall be responsible for ensuring that legal and financial advice has been obtained and must consider whether the scope of the proposed funding request warrants further legal or financial advice from an independent source.

At such a time that all of the above community input methods have been completed, and considering the information obtained, the City Council shall determine the award of any such funding during a regularly scheduled City Council meeting.

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INDIAN WELLS CITY COUNCIL
November 3, 2022

To: City Council
From: City Manager Department
Prepared by: Micaela Wilkey, Senior Management Analyst
Subject: Children’s Discovery Museum of the Desert One- Time Funding Request for Fiscal Year 2022-23

RECOMMENDED ACTION:

Council DISCUSSES the Children’s Discovery Museum of the Desert funding one-time funding request for Fiscal Year 2022-23 and PROVIDES staff direction.

DISCUSSION:

At the October 6, 2022, City Council meeting, the Children’s Discovery Museum of the Desert (CDMoD) provided the City Council with an update on the planned improvements and efforts to reopen the museum in early 2023. To assist in t hese efforts, CDMoD is requesting a one-time contribution of $150,000 to be used towards the new 0-8 year-old exhibit. At the October 6, 2022, City Council meeting the City Council discussed this item and determined they needed to review the City’s Community Assistance Policy before making any determination of funding on CDMoD’s funding request. The Community Assistance Policy is being discussed as a separate item on today’s agenda.

The Children’s Discovery Museum of the Desert is a nonprofit organization founded in 1986. It is a charter member of the Association of Youth Museums, which was established to ensure the highest standards of all aspects of education, discovery, public service, outreach, and operations of youth museums. The CDMoD is where youth, families, teachers, and the community collaborate and participate in joint projects and partnerships in learning and to celebrate the rich cultural diversity of the Coachella Valley. The CDMoD has been a top attraction in the Coachella Valley for 30 years. CDMoD receives approximately 5,000 visitors per year.

In 1991, the Cove Communities of Rancho Mirage, Palm Desert, and Indian Wells established a $1.6 million Building Trust Fund to get the initial building built. Since 1999, the City has awarded CDMoD an additional $423,639 through community assistance and grants to help fund programs at CDMoD.

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CDMod’s funding request of $150,000 will assist in the completion of Phase 1 of the CDMoD upgrades, which includes reimagining Building One (8,500 sq. ft.) to create a brand new space for 0-8-year-olds and will comprise of 40 new exhibits, anticipated to open in early 2023. To date, CDMoD has secured $1.5 million of the $3 million Phase 1 project cost. CDMoD is requesting funding from all Coachella Valley cities to assist the museum complete Phase 1. To date both the cities of Rancho Mirage and Palm Desert have awarded CDMoD funding. A total of $255,000 was raised through Rancho Mirage, part of which was through matching grant funds. $255,000. Palm Desert gave $150,000 for Phase 1.

Long term, CDMoD has developed a Five Phase program to rehabilitate and reinvent the museum. This will include new construction and expansion of all three buildings and the exterior campus of the museum. CDMoD is embarking on a fundraising plan to reopen in 2023 with a reimagined museum with programming to reach a broader audience of ages and members of the community. CDMoD has provided the attached summary of the various improvements being planned in the Five Phase program.,

The Finance Committee met on September 6, 2022, to discuss CDMoD’s funding request.

The Finance Committee recommended that the entire City Council discuss funding at a lower amount than the requested $150,000, possibly between $25,000-$50,000.

FISCAL IMPACT:

Children’s Discovery Museum of the Desert’s funding request of $150,000 is not included in the adopted Operating Budget for Fiscal Year 2022-23. On today’s agenda, the Council considered amending the Community Assistance Funding Policy to provide the Council with up to $40,000 in annual discretionary funding. As developed, the Council’s request for discretionary funding did not appropriate additional funds but reallocated existing funds within the adopted budget.

If the Council voted to adopt the Community Assistance Funding Policy as amended, Staff would recommend Council consider a maximum of $40,000 in available funding should the Council desire to fund the CDMod program.

Considering the National economic outlook and potential impacts on tourism caused by inflation and high fuel prices, City staff is cautious about recommending Council appropriate additional funding at this time. Staff will have better data on any negative economic impacts on Indian Wells as the season unfolds during February 2023 and March 2023.

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ATTACHMENTS:

1. Funding Request Letter

2. Summary of CDMoD’s Five Phase Program

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ATTACHMENT #1

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Summary Children’s Discovery Museum Five Phase
Program
The Children’s Museum (Building One)- Age focus Birth to 8 with Exhibit experiences Engagement Strategies include creative ways to: Experiment (ball fall & ramps, measuring & pouring, cardboard building), Imagine (role play, theater), Move your body (net climb, noodle forest, dancing), Express yourself (making music, building blocks, color mixing), Interact with your child (reading nook, simple building, parent tips & resources), More significant space dedicated to toddlers (3 and under, balance and coordination activities, textures), Dedicated “creative calm” inclusive space that serves as an area for relaxation, reflection, reading etc., which also accommodates special needs.

The Children’s Museum: Visitor Outcomes - Grow great brains, using play to develop thinking and social skills. Develop the 21st century skills that support school readiness.

Reveal new ways for caregivers to interact with their children and extend the power of play to their homes. Strengthen the bonds between caregivers, children and community members of diverse backgrounds through play. Caregivers see children as capable, competent, creative learners from an early age.

The Studio (Building Two) - Age Focus: 5 – 14: Combination of exhibition and flexible activity space Engagement Strategies include creative ways to: Build (Kapla, found-object sculptures, etc.), Experiment and make (kites, roller coaster, racetrack, etc.), Tell stories (animation, poetry, story stations, theater), Express yourself (drawing, painting, etc.), Expansion into picnic area for larger or messier activities and programs (Big Blue Blocks, cardboard city, Paint a Bug, giant checkers, etc.).

The Studio: Visitor Outcomes - Cultivate creativity and innovation to foster flexible, 21st century skills. Build thinking skills by encouraging cross-disciplinary experimentation.

Children feel safe and supported to articulate and express their thoughts and feelings.

Grow communication and collaboration competencies that help children be open and responsive to diverse perspectives.

The Lab (Building Three) - Age Focus 8: Adult Flexible activity and maker space (loose parts, tools, lots of program opportunities) focused on revenue-generating multipurpose uses. Engagement Strategies include creative ways to: Build and make (tools, computers, 3D printers, materials, etc.), Gather (community programs, teen clubs, maker faire, etc.), Celebrate (birthday parties, inclusive prom, ethnic festivals, etc.), Continue learning and skill-building (teen classes, teacher training, adult programming, complimentary programming with other organizations, after school care & camps, etc.) .

The Lab: Visitor Outcomes - Children, teens and adults learn new skills in a wide range of disciplines through hands-on experience. Spark interest in a variety of careers while building the abilities needed in a successful future workforce. Enhance social and cross- ATTACHMENT #2

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cultural understanding and acceptance through family and community celebrations.

Nurture the joy of life-long learning in all members of the Coachella Valley community.

The Oasis (Outdoor space) - Age Focus all ages up to 14: Gross motor experiences within a wide variety of thematic spaces. Engagement Strategies include creative way to: Move (climbing & scrambling, trike path, tunnels, zip line, etc.), Gather (community programs, STEAM programming, Sunset Stage, etc.), Express yourself (water painting, Music Garden, etc.), Explore nature ( The Oasis water play, The Garden, etc.)

The Oasis: Visitor Outcomes - Connect children and their families with the natural world of the Coachella Valley. Increase physical well-being and self-confidence through outdoor play, active exploration and safe risk-taking. Strengthen community connections through a delightful variety of outdoor performances and programming.

Future Expansion: Larger lobby and museum store, Toddler Room, Two Special Functions Rooms, Two Program Rooms, Dedicated School Group Entrance, 4,200 Sq. Ft. Exhibition gallery, and Expanded Administrative Offices.

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INDIAN WELLS CITY COUNCIL
November 3, 2022

To: City Council
From: City Attorney
Prepared by: Todd Leishman, City Attorney
Subject: Adopting an EIR Addendum for the Proposed
Resolution of Necessity and Acquisition of a Fee
Interest in Certain Real Property, by Eminent
Domain, located on the Northeast corner of Miles
Avenue and Warner Trail in the City of Indian Wells,
More Particularly Described as Assessor Parcel No.
633-360-002, in Riverside County, California, for an
Affordable Housing, Public Parking, Recreation
Facilities and Open Space Project

RECOMMENDED ACTIONS:

Council CONDUCTS a hearing to consider the adoption of two resolutions: (1) a resolution adopting an Addendum to the Certified EIR for the 1996 Update to the City’s General Plan and (2) a Resolution of Necessity for the acquisition of real property (APN 633-360-000); and
MAKES the following findings, as hereinafter described in this report:
a) The public interest and necessity require the proposed project; b) The project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury;
c) The real property to be acquired is necessary for the project; and d) The offer of just compensation has been made to the owner; and

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ADOPTS Resolution No. 2022-41 Adopting an Addendum to the Certified EIR for the 1996 Update to the City of Indian Wells General Plan (SCH# 94092037) regarding the Proposed Resolution of Necessity for the Acquisition of APN 633-360-002; and ADOPTS Resolution of Necessity No. 2022-42 for the Acquisition of a Fee Interest in Certain Real Property, by Eminent Domain, located on the Northeast corner of Miles Avenue and Warner Trail in the City of Indian Wells, More Particularly Described as Assessor Parcel No. 633-360-002, in Riverside County, California, for an Affordable Housing, Public Parking, Recreation Facilities and Open Space Project REPORT IN BRIEF:

The City Council is asked to consider the adoption of a resolution of necessity for the fee interest in the parcel listed below. This interest is required for an Affordable Housing, Public Parking, Recreation Facilities, and Open Space Project (“Project”) that the City wishes to undertake for public benefit. The Project will include the construction of approximately 223 units of affordable housing and associated recreational amenities and open space consistent with the maximum amount of development allowed under the existing Residential, Medium Density Residential land use designation and zoning for the site. Specifically, the City proposes to develop 5 to 10 acres of the site at a location to be determined based on the results of discussions with those Native American tribes who are consulting with the City regarding the final disposition of cultural resources at the site.

The City obtained an appraisal of the affected property from John G. Ellis, MAI, CRE, FRICS and William Larsen, SR/WA of Integra Realty Recourses – Los Angeles. The appraisal was reviewed by City staff and discussed with the Council before the Council authorized staff to make an offer of just compensation to the property owner in accordance with California Government Code section 7267.2. Property profiles were ordered to determine the identity of the record owner. Following standard public records and due diligence searches for ownership information, a notice of this public hearing was mailed to the property owner.

The power of eminent domain is used by the City only as a last resort to obtain interests necessary for projects after (1) negotiations have stalled; or (2) the owner has requested that the City proceed directly to eminent domain for tax or other advantages; or (3) the eminent domain process is necessary to clear the title to the property. In this case, an offer of just compensation has been made to the owners for the full Fair Market Value as determined by the appraisal. City staff attempted to negotiate a voluntary acquisition in good faith, and will continue to do so throughout the process. California’s definition of

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Fair Market Value is one of the most inclusive definitions in the United States and requires the appraiser to consider the highest and best use of the property and the appraiser to consider the highest price a willing buyer and seller would agree to. The City’s appraisals must use this definition of Fair Market Value.

California eminent domain law provides that a public entity may not commence with eminent domain proceedings until its governing body has adopted a Resolution of Necessity, which may only be adopted after the governing body has given each party with an interest in the affected property, or their representatives, a reasonable opportunity to appear and be heard on the following matters:
1) The public interest and necessity require the proposed project; 2) The project is planned or located in a manner that will be most compatible with the greatest public good and the least private injury; 3) The real property to be acquired is necessary for the project; and 4) The offers of just compensation have been made to the property owner.

Since an agreement has not been reached with the owner of the parcel, acquisition by eminent domain is the City’s last option. The initiation of the eminent domain process is accomplished by the City’s adoption of a resolution of necessity for the affected property.

The record owner must be afforded an opportunity to appear at the hearing and lodge objections. A notice of this hearing was sent by first class mail on October 18, 2022, to each record owner in accordance with Section 1245.235 of the California Code of Civil Procedure. The notice stated the City’s intent to consider the adoption of a resolution, the right of the property owner to appear and be heard on these issues, and that failure to file a written request to appear would result in a waiver of the right to appear and be heard. The City scheduled this hearing at which all persons who filed a written request in compliance with applicable law may appear and be heard.

DESCRIPTION OF PROPERTY TO BE ACQUIRED:

The subject property is a parcel of undeveloped land located at the northeast corner of Miles Avenue and Warner Trail in the city of Indian Wells, and is most commonly identified as Assessor Parcel No. 633-360-002 (“Property”). The gross area of the property is approximately 34 acres.

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The proposed acquisition consists of a full acquisition of the Property to construct the City’s affordable housing, public parking, recreation facilities and open space project. The legal definitions, descriptions and depictions are attached hereto as Exhibit 2.

HEARINGS AND REQUIRED FINDINGS:

The recommended action of the City Council pertains to the acquisition of a fee interest in certain real property known as Assessor Parcel No. 633 -360-002 owned by Albert O.

Lissory, Jill R. Lissoy and Scott R. Lissoy, Trustees of the Lissoy Family Trust (collectively referred to as the “Property Owners”).

The above four required findings are addressed as follows:

Finding 1: Public Interest and Necessity Require the Project The Project and the acquisition of the Property will enable the City to construct approximately 223 units of affordable housing and associated recreational amenities and open space consistent with the maximum amount of development allowed under the existing Residential, Medium Density Residential land use and zoning for the site. Specifically, the City proposes developing 5 to 10 acres of the site at a location to be determined based on the results of discussions with those Native American tribes who are consulting with the City regarding the final disposition of cultural resources at the site.

Finding 2: The Project Is Planned or Located in a Manner Most Compatible with Greatest Public Good and Least Private Injury The Property is currently unimproved and vacant. There is not another parcel in the City suited to convert to Affordable Housing, Public Parking, Recreation Facilities and Open Space on such a large scale.

To move this project elsewhere would cause a greater impact in the new location as well as to nearby residents, and be much more costly at the expense of local taxpayers. Notification of street closures and alternate route alternatives, if any (none are anticipated), will be provided in advance to all residents in close proximity of the project. All efforts will be made to pursue project completion as quickly as possible once work is begun.

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Finding 3: The Real Property to Be Acquired Is Necessary for the Project The Property is a vacant parcel in the City with the capacity for meeting the City’s objectives for the construction of affordable housing, public parking, recreation facilities and open space project.

Finding 4: The Offer of Just Compensation Has Been Made Appropriate sources, including property profiles, were used to confirm and identify the parties with an interest in the property affected by the Project. John G. Ellis, MAI, CRE, FRICS and William Larsen, SR/WA conducted an appraisal for the property and determined the fair market value of the property to be acquired. On September 16, 2022, the City made an offer of just compensation for the amount of $12,140,000.00 to the property owners to purchase the fee interest in certain real property as established by the approved appraisal and as required by Section 7267.2 of the California Government Code.

The Property Owner has not responded to the offer.

Although a negotiated settlement may still be possible for the real property cited above, it would be appropriate to commence the procedures to acquire the property through eminent domain, to ensure that the City has possession of the real property, which is necessary in order for the City to begin construction of the Project.

ENVIRONMENTAL ANALYSIS:

The proposed acquisition would not involve any change to the site’s existing land use and zoning or the associated development potential contemplated by the General Plan and analyzed in the General Plan FEIR, as modified by the 2007 Addendum to FEIR and the 2013 Addendum to FEIR. Consistent with the analysis and conclusions of the General Plan FEIR, future development of the Project site would be required to comply with the applicable General Plan policies and General Plan FEIR mitigation measures specific to biological resources, noise, air quality, public services and utilities, cultural resources, and paleontological resources, ensuring that potential environmental impacts are reduced to a less than significant level, with the exception of short- and long-term air quality impact, which the General Plan FEIR found would be significant even after the implementation of General Plan policies as mitigation.

A Historical/Archaeological Resources Survey Report (Phase I) and a Phase II Archaeological Testing have been prepared specific to the site. During the preliminary

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research conducted for the Phase I, researchers found that two archaeological sites were previously recorded as lying within or partially within the site (Recorded Sites). Due to the possibility of buried cultural remains, further investigations, including test excavations were recommended to assess the archaeological data potential and the historic significance of the Recorded Sites. Phase II archaeological testing was conducted in June 2022 and identified significant cultural resources on the Recorded Sites.

These steps were taken consistent with the General Plan FEIR, which includes mitigation to reduce potential significant impacts to cultural resources by requiring that sites proposed for future development be evaluated for archaeological resources either through a literature search or by a certified archaeologist in accordance with CEQA. To the extent that the General Plan FEIR recommends avoiding potential impacts to cultural resources by requiring sites proposed for future development be evaluated for archaeological resources in accordance with CEQA, this mitigation measure has been complied with through preparation of these studies. The specific location for future development of affordable housing within the site will be determined based on the results of ongoing discussions with consulting Native American tribes regarding the final disposition of cultural resources.

The environmental effects of the acquisition of the subject site for purposes of affordable housing and associated recreational amenities and open space consistent with the land use and zoning for the site were contemplated and analyzed in the General Plan FEIR, as modified by the 2007 Addendum to FEIR and the 2013 Addendum to FEIR. Acc ordingly, and pursuant to the criteria of Section 15162 of the CEQA Guidelines and Section 21166 of the Public Resources Code, and based on assessment of the site, no substantial changes have occurred in the site, no substantial changes have occurred in th e circumstances under which the proposed development would be undertaken, and the City has obtained no new information of substantial importance that would require further environmental analysis. Thus, no further CEQA review is required. The General Plan FEIR, as modified by the 2007 Addendum to FEIR and the 2013 Addendum to FEIR, is adequate to satisfy the requirements of CEQA for the proposed acquisition of the subject site.

FISCAL IMPACT:

The associated cost for said acquisition to the City is the appraised value of the Property, which presently is $12,140,000.00. The City has the funds to pay for the acquisition, but the Indian Wells Housing Authority is going to either pay for the acquisition directly or reimburse the City for the acquisition in exchange for a binding commitment by the City

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to develop the Property for affordable housing. The Housing Authority also has the funds to pay for the acquisition.

ACTION REQUESTED BY THE CITY COUNCIL:

ADOPT Resolution of the City Council of the City of Indian Wells, California, Adopting an Addendum to the Certified EIR for the 1996 Update to the City of Indian Wells General Plan (SCH# 94092037) with Regard to the Proposed Resolution of Necessity for the Acquisition of APN 633-360-002; and
ADOPT Resolution of Necessity for the Acquisition of Fee Interest in Certain Real Property, by Eminent Domain, located on the Northeast corner of Miles Avenue and Warner Trail in the City of Indian Wells, More Particularly Described as Assessor Parcel No. 633-360-002, in Riverside County, California, for an Affordable Housing, Public Parking, Recreation Facilities and Open Space Project.

ATTACHMENTS:

1. Resolution Adopting an Addendum to the Certified EIR

2. Resolution Necessity for the Acquisition of Fee Interest

3. Legal Definitions, Description and Map

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Public Comment: City Council
November 3, 2022 Item #I.5

Michael H. Leifer
Direct Dial: (949) 851-7294
E-mail: [email protected]
File No.: -
November 3, 2022
3 Park Plaza, Suite 19 50, Irvine, CA 92614-2518
(949 ) 8 51 -7388 | www.palmierilawgroup.com

VIA E-MAIL
City of Indian Wells City Council
c/o Christopher Freeland, City Manager
[email protected]
Angelica Avila, City Clerk
[email protected]
44-950 Eldorado Drive
Indian Wells, CA 92210
Re: City of Indian Wells adv. Lissoy Family Trust -- Objection to Resolution of Necessity [Riverside County APN 633-360-002]
Dear Honorable Mayor and Council Members:

On behalf of our client, the Lissoy Family Trust U/D/O June 17, 1996 (“LFT”), we object to the City’s proposed adoption of a resolution of necessity to condemn the LFT property, Riverside County APN 633-360-002 which consists of approximately 34.18 acres at Miles Avenue and Warner Trail adjacent to the Indian Wells Tennis Garden (the “property”).

LFT and its affiliates are experienced in real estate ownership and management of numerous properties of a broad spectrum of property type. LFT has over the last many decades employed a buy, hold and strategically develop course of business relating to real estate assets.

Its affiliates have developed many properties throughout the Coachella Valley and other areas throughout Southern California (and out of state) for sale and/or for rent. The developments have involved many types of residential products and other types of development. It is known by the City that this property has been in the development process.

To the extent that the City ultimately decides it has a vision for the property that is not market-based, LFT, based on an appropriate agreement, is highly qualified and competent to participate in the implementation of the City’s non-market based use and improvements on the property. Yet, to be sure, those conversations concerning the City’s demands for improvements and uses it may want for the property have not occurred. The City has not disclosed what it wants for the entirety of the property. It certainly has not disclosed what it “needs” on the entirety of the property.

In this proposed resolution, the City proposes a purposefully vague, improper and misguided eminent domain attempt to wrest ownership of the LFT property.

PUBLIC COMMENT: City Council
Meeting November 3, 2022
General Business Item #I.5

City of Indian Wells City Council
November 3, 2022

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The City’s Government Code Violation. Pursuant to the Government Code Section 7260, et seq. and applicable authority the City is obligated to act in good faith and not take coercive action. The City is taking coercive action. LFT has sought information, informally and formally, from the City about the City’s desired proposed improvements on the LFT property.

The City refused all the requests. LFT has requested that this improperly rushed resolution hearing be postponed; the City refused this request. The City is improperly seeking to withhold information and proceed nonetheless while cloaking its conduct in vagueness. Additional time and documents backing up the City’s purported project were appropriately requested.

LFT received neither.

The City refused to provide documents or its so-called administrative record to date. It refused to continue this hearing. It seeks to prevent the receipt, consideration and response to the City’s purported documentary support for this resolution. In fact, in response to LFT’s request for public records on this “project,” the City extended its own time to respond. “[T]the City is taking an extension of the standard 10 day time period for providing its determination on your request. City staff members will notify you in writing with a determination on your request no later than November 14, 2022.” (City Clerk Ltr, 11/2/2022, p. 2.)
While improperly jamming LFT for time, the City gives itself an extension.

The City’s timing and refusals are coercive.

Bereft of documentation, the City staff report states that City is in “ongoing discussions” regarding the asserted project development with Native American tribes regarding cultural resources. Since such discussions are ongoing, this hearing is premature—other than for the City to take advantage of LFT. In the short period following the City’s scheduling of this hearing, with the City’s refusal to provide documents, LFT has attempted to investigate the City’s “project” for the LFT Property by its review of the City’s website and its attempt to locate other publicly disclosed information. An in-person visit to City Hall was undertaken. Little to no information is publicly accessible on the City of Indian Wells’ website or readily available planning files relating to this proposed City action concerning the LFT property. There is no evidence of timing requirement or urgency.

The City seeks to disadvantage LFT and obtain advantage for itself. It will demand that all objections are made at the time of the hearing and at the same time has prevented and limited making of objections. The City refuses to provide documents to give itself maximum flexibility

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to, later in litigation, create an after-the-fact expanding or shrinking “administrative record,” whichever later best suits the City’s litigation position. Such conduct is fundamentally unfair.

LFT objects to every aspect and component of the proposed resolution of necessity to condemn. LFT also objects on CEQA grounds as LFT is not aware of any adequate environmental review that has been conducted.

The proposed action lacks an adequate description of the City’s Project for the LFT property acquisition. The City either has no project or it has a secret project. In either case, the attempt to acquire is improper. The City’s acquisition appraisal references the City’s plans for the acquisition, but fails to mention the City’s plan. The City environmental “addendum,” dated just three weeks ago, states the project is “223 affordable housing units.” But then states as follows: “Specifically, the City proposes developing 5 to 10 acres of the site at a location to be determined…”
“5 to 10 acres?” LFT justifiably objects to the City then seeking to take the entirety of the 34.18 acres for an uncertain, undetermined, unsized and unlocated Project.

The City is impermissibly land-banking based on phony and vague “project” language.

The City’s vague staff report recites a number of vague land uses. Parking, recreation, and open space are not projects. They are also uncertain, undetermined, unsized and unlocated.

Reference to these other potential uses renders the reference to the possible residential component even further undetermined. To the extent the City has somehow already set limits on its asserted residential project, LFT believes the City has size-limited its project to five acres, far less than LFT’s 34.18 acre property. The City’s “affordable housing” project is not within field artillery range of needing 34.18 acres.

The City’s attempt to land grab for acreage next to the Indian Wells Tennis Garden is not compliant with the Eminent Domain Law particularly under these circumstances.

Further, where is the evidence of need of the vague project or secret project in the City’s staff report? For affordable housing, for open space (the City is already blessed with ample open space)? The answer is that there is no evidence, much less substantial evidence, for asserted need of the vague or secret project in the City’s staff report.

As to this hearing and the proposed resolution, where is the project on the LFT property? What other sites were considered? How about the other site condemned by the City from LFT years ago on Highway 111? That site has never been fully built out for affordable housing after decades. After all these years, it still has capacity and remains mostly vacant. How were other

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sites considered? Were they considered? When? What happened? What are the so-called Project components? What analysis was undertaken? When? What planning was done? When? What are the size of the Project components? What analysis was undertaken by the City for the need for any of the components? When will such analysis be implemented? What is the type and density of “affordable housing”? What is the anticipated cost and does the City have the funding? These are all fundamental issues. It is not meant to be an exclusive list. These issues amply illustrate that there is nowhere near sufficient specificity for any meaningful determination of the issues for this hearing and this resolution in which the City Council purports to “find” to use condemnation for a land-grab of LFT’s property or undertake a good faith CEQA determination.

The City either knows the details and deliberately obfuscates because the information undermines the City’s attempted condemnation. Alternatively, the City does not know, which also undermines and prevents the asserted condemnation.

The City project violates CEQA. Without an adequate project description, the City cannot satisfy CEQA. Without an adequate project description, it is very likely that it is going to piecemeal some sort of implementation to avoid environmental compliance. Aware it is not subject to zoning, the City falsely suggests that compliance with zoning satisfies CEQA. The City mentions a proposed “5 to 10 acres” development of 223 units. Such density far outstrips the allowed density under the City’s General Plan and zoning. The acreage range suggested is a 100 percent variance. At 5 acres, 223 units is 44.6 units per acre. Yet there was no CEQA analysis of the intensified density. The City asserts public parking, recreational facility and open space. Yet again the City zoning has the property zoned for medium density residential. The property is not zoned public parking, recreational facility or open space.

The lack of adequate project description and/or reference to an approved project plan infects and invalidates the City’s resolution of necessity and CEQA determination. The City cannot make the required findings to adopt a resolution of necessity if there is no defined and discernable project. The City has confused and conflates its assertions of public use with the public project. The City’s inability to distinguish between the asserted public use and the public project will necessarily lead to a faulty analysis. The failure to fully disclose the public project, denies the public of its right to understand the reasons why its government is attempting to take private property.

As noted in City of Stockton v. Marina Towers, LLC (2009) 171 Cal.App.4th 93, the “Eminent Domain Law requires that the local governing entity identify a ‘project’ with a public purpose before it undertakes to condemn private property.” (Id. at p. 107 [emphasis added], citing Code Civ. Proc., §§ 1240.010, 1240.030.)

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There are many reasons why a failure to identify sufficiently the proposed project in a resolution of necessity must have fatal consequences to a public entity’s right to take. First, section 1240.030, subdivision (a) “prevents the taking of property by eminent domain unless the public interest and necessity require the project. . .

The governing body must therefor review the evidence at a public hearing and make the essential findings set forth in section 1240.030. . . . It is both a physical and legal impossibility for the legislators to make a determination that the public interest and necessity require “the project,” that “the project” is located or planned in a manner consistent with the greatest public good and least private injury, and that the property sought to be acquired is necessary for “the project” . . . if the resolution contains no intelligible description of what the project is. (Id. at p. 108 [internal citations omitted].)
Statewide acquisition direction is also illustrative of the requirement. Caltrans Right of Way manual section 7.01.01.02 provides that the agency’s appraisal “shall contain information about the properties and the general aspects of the entire project.” Here, the Integra Realty appraisal provides no discussion, general or otherwise, about the project. It does generally mention that the appraisers were informed of the City’s plan, but not what the plan is.

Either the City is aware and is hiding its project or it is unaware of its own project. The end result is designed vagueness. All are fatal to the asserted condemnation.

As in Marina Towers, the City here has failed to identify any project in its proposed resolution of necessity. The City’s explanation of the “project” has strung together buzz-words to make it sound like there is a specific project—yet, there is no evidence available on any City- related website, City Council agenda, City Council meeting minutes or resolutions, City planning files or a Google search demonstrating that a project exists that justifies taking 34.18 acres for a “5 to 10 acre” development.

The City staff report asserts environmental analysis based on an outdated EIR is improper and invalid. Again, the nonexistent project definition is an improper attempt to evade CEQA review. As noted by the Court in Marina Towers, “compliance with CEQA is mandatory before a public entity may condemn property for a proposed project . . . A municipality could evade all of these environmental protections by deliberately failing to define ‘the project’ or couching the resolution in such vague language that no one could definitively determine what use the legislative body had in mind for the property.” (City of Stockton v. Marina Towers, LLC, supra, 171 Cal.App.4th at p. 108.) That is precisely what the City is doing here.

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The City’s taking is pretextual. The City’s amorphous “public use” assertions and nonexistent/inadequate “project” description demonstrates that the City’s taking is pretextual.

The City does not intend to put the property to the public uses the City asserts. Instead, LFT believes that the City is likely improperly attempting to take the property then transfer to another private developer(s) or use the property to only benefit private developers, such as the next door commercial tennis center. Such conduct is a gross abuse of discretion.1 The City is likely not announcing its dealings with the other private developer in an attempt to legitimize its acquisition of the Properties as being for a “public use.” The City cannot properly make the required necessity findings. As discussed above, due to the absence of an actual project, the City cannot find that the public interest and necessity require the project, that the project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury, or that the property sought to be acquired by eminent domain is necessary for the project. (See, Code Civ. Proc., § 1245.235, subd. (a).) The City’s failure to identify an intelligible project or project plan are designed to disadvantage LFT’s ability to object to the showing for the findings that are statutorily required.

The City cannot support a finding that the public interest and necessity require the project when there is no public information about such project. Where is the evidence of various needs in the City’s staff report? The City’s report fails to so demonstrate.

The City and its officials “should exemplify equitable conduct. A public office is a public trust created in the interest and for the benefit of the people. As trustees for and representatives of the public, local public officials are required to discharge their responsibilities with the utmost fidelity and integrity. They should be ‘standard-bearers of public virtue.’” (City of Palm Springs v. Living Desert Reserve (1999) 70 Cal.App.4th 613, 630 [internal citations omitted].) There is no showing by the City here or evidence presented here that the asserted affordable housing could not be done elsewhere. There is a conclusion stated in a staff report but no evidence of other locations considered. As mentioned, in fact, the City previously condemned land from LFT for affordable housing. That was years ago. Yet, the City has failed to fully develop land it already has for the asserted “need” demonstrating that falsity of the City’s asserted “need” to take more.

1 Substitute condemnation or condemnation for exchange purposes are limited by statute to specific situations, none of which exist here. (See Code Civ. Proc., § 1240.310, et seq.) The City’s attempt here equates to an invalid and unauthorized substitute condemnation.

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Likewise, why cannot the owner implement an affordable housing component on 5 acres and retain the rest? The City must demonstrate not only the land needed, but also the interest sought, here fee simple absolute, is not necessary for the project. (Code Civ. Proc., § 1240.030; see also City of Los Angeles v. Keck (1971) 14 Cal.App.3d 920.) There are less impactful possible takes than fee simple. If the acquisition interest is genuinely for housing, condemning a restrictive right on 5 acres together with appropriate compensation would be a less injurious take while accomplishing the purported same public good.

The City is attempting improper excess taking. The Legislature has greatly restricted “excess” condemnation to very narrow circumstances, none of which are applicable here. A condemnor cannot take more than it needs to avoid compensating for severance damages, to avoid litigation, to coerce the property owner’s acceptance, or to speculate on future development:

Section 1240.410 does not authorize a taking of excess property (1) to avoid the cost and inconvenience of litigating the issue of damages, (2) to preclude the payment of damages, including damages substantial in amount in appropriate cases, (3) to coerce the condemnee to accept whatever price the condemnor offers for the property actually needed for the public project, or (4) to afford the condemnor an opportunity to “recoup” damages or unrecognized benefits by speculating as to the future market for the property not actually devoted to the public project.
(West’s Ann. Code, Law Rev. Comm. comm. foll. Code Civ. Proc., § 1240.410.) In this matter, all of the above prohibitions apply. As the California Supreme Court has held, the City and its counsel are charged under the law “to seek justice and to develop a full and fair record.” (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871.) Here, the City has refused to develop a record. The Supreme Court has made clear that the City and its counsel are prohibited from using the power of eminent domain and “the economic power of the government to harass parties or to bring about unjust settlements or results.” (Ibid.) To the contrary, “[t]he condemnor acts in a quasi-judicial capacity and should be encouraged to exercise his tremendous power fairly, equitably and with a deep understanding of the theory and practice of just compensation.” (Ibid.)
The City cannot vaguely assert it will develop “5 to 10 acres” but then not locate its project in order to take a massively excess amount of acreage, 24 to 29 acres of land, that is as much as six times the land area of its asserted “project.” Such a taking implicates all of the impermissible motivations that are an abuse of the condemnation power. The City seeks to coerce an acceptance by LFT, to avoid compensating fairly, to recoup by speculating on clearly

City of Indian Wells City Council
November 3, 2022

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excess land by its own admission. Such conduct is the very government abuse of the tremendous condemnation and economic power of the City which the Supreme Court so forcefully held to be improper.

The City will not put the property to the purported use within seven years. Project implementation is time-limited under California law. Based in part on the City’s noted history in failing to develop affordable housing on land it already has and the excess attempted taking, LFT further objects as the City will not devote the property to the stated purpose within seven years.

The City has not made a valid offer to purchase. The appraisal and offer is old, stale and vague. The Government Code Section 7267.2 offer requirement is not a quasi-legislative determination subject to Code of Civil Procedure Section 1245.235—thus LFT is not legally required to raise such an objection prior to the City’s adoption of the resolution of necessity.

Even so, the City’s offer does not comply with Government Code Section 7267.2. The proffered offer is invalid. LFT asserts that the offers made were not based on a valid and approved appraisal by the City Council. Making a valid precondemnation offer is a mandatory prerequisite to condemnation. (Gov. Code §7267.2; City of San Jose v. Great Oaks Water Co. (1987) 192 Cal.App.3d 1005,1011.) Government Code Section 7267.2 provides that “Prior to adopting a resolution of necessity . . . the public entity shall establish an amount it believes to be just compensation therefor, and shall make an offer to the owner or owners of record to acquire the property for the full amount so established . . .” (Gov. Code §7267.2, subd. (a)(1), emphasis added.) The Government Code, of course, directs that the appraisal and offer shall be based on the principles of just compensation. (Gov. Code §7267.2, subds. (a) and (b).) Here, the offer is invalid because it is outdated and based on a stale appraisal. Public agencies seeking to utilize eminent domain are required to use every effort to acquire property expeditiously by negotiation. (Gov. Code, §§ 7267.1, 7267.2, 7267.5; 25 CCR 6182.) The California Code of Regulations instructs that “if a significant delay has occurred since the determination of just compensation, the public entity shall have its appraisal updated. If a modification in the public entity’s determination of just compensation is warranted, an appropriate price adjustment shall be made and the new amount determined to be just compensation shall be promptly offered in writing to the owner.” (25 CCR 6182, subd. (i)(2).) The City’s “offer” was made almost nine months ago—the offer letter is dated February 25, 2022. However, the market data relied upon by the appraiser dates back to 2018. So, the City is improperly attempting to rely on an offer made and appraisal performed almost a year ago, utilizing market data nearly four years old, where real estate market conditions are trending upwards significantly. A purported determination by the City that stale is not stale receives no deference.

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November 3, 2022

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There is also no evidence of the City Council’s review and approval of the appraisal that was the basis of the precondemnation offer. The City has, thus, not made valid precondemnation offer.

LFT is entitled to a fair, legal and impartial hearing on the proposed resolution of necessity. As a condition precedent to the exercise of the power of eminent domain, a public entity must hold a public hearing to determine whether a particularly taking meets the three public interest and necessity criteria articulated in Code of Civil Procedure Section 1240.030. (Code Civ. Proc., § 1245.235.) If, after such public hearing, the public entity determines that the proposed taking meets that criteria, then it must adopt a resolution of necessity before proceeding to condemn. (Code Civ. Proc., §§1240.040, 1245.220.)
Implicit in this requirement of a hearing and the adoption of a resolution of necessity is the concept that, in arriving at its decision to take, the public entity engages in a good faith and judicious consideration of the pros and cons of the issue and that the decision to take be buttressed by substantial evidence of the existence of the three basic requirements set forth in Code of Civil Procedure Section 1240.030. (Redevelopment Agency v. Norm’s Slauson (1985) 173 Cal.App.3d 1121, 1125-1126.) In the absence of a fair and impartial hearing, the resolution of necessity is void. Courts have characterized such hearings and alleged deliberations as a "sham." LFT believes that the City has already entered into undisclosed agreement (whether in writing or orally) to transfer the Property, after taking Property from LFT, to another private owner for such other owner’s private use or benefit. Those deals or agreements have precommitted the City to the taking of the Properties well in advance of the City Council meeting. Additionally, the City Council is conducting this “hearing” to further the election of various council members. In short, the City is precommitted, further evidenced by its feigned “urgency” that is no such thing. Such precommitment deprives LFT of a fair hearing before the Property is condemned. Adoption of the resolution of necessity under these facts would be a gross abuse of discretion.

The City’s actions and efforts to take the Properties are improper. They violate LFT’s constitutional rights. They do not comply with law. LFT intends to vigorously defend its property rights.

LFT reserves all rights.

City of Indian Wells City Council
November 3, 2022

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Very truly yours,

Michael H. Leifer
cc: Client
Guillermo Frias (via email)
Todd Leishman (via email)

Acquisition of
Property for
Affordable
Housing and Park

Affordable Housing
•Housing Element
•Eight Year Cycle
•State Required Planning Document for new housing Regional Housing Needs Assessment (RHNA)
•Process (e.g., HCD and SCAG)
•Why go through this process?
•Housing and Park Land (Quimby Act)
•Housing for local employees
•Hotel Partners (City’s Finances)
•Bills to use Municipal Golf Courses for Affordable Housing •Existing Affordable Housing Projects
•Indian Wills Villas (90 Units on 7.3 acres-12 units/acre) •Completed in 1996
•Mountain View Villas (128 Units on 16.2 acres-8 units acre) •Completed in 2004

Affordable Housing
•5th RHNA Cycle (2013-2021)
•Very-low Income: 40 units
•Low Income: 27 units
•Moderate Income: 31 units
•Above-Moderate Income: 60 units (Province Development) Total: 160 units (100 Affordable)
•January 29, 2020 Strategic Planning Session
•Discuss placement of affordable housing on Hwy 111 property adjacent to Mountain View Villas (10 Acres)
•May 21, 2020 Housing Authority Meeting
•Authorize RFQ for development of housing on Hwy 111
•100 Affordable units
•October 8, 2020 Housing Authority Meeting
•Approved ENA with Abode Communities
•ENA expires in April 2023, unless extended

imetommr
1 BD unit
2 BD unit
• 3 BD unit
Total
48 (740 SF)
24 (1,000 SF)
28(1,150 SF)
100 Units
Vie.

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•SCAG Proposed RHNA for 6th Cycle (403 Units)
•6th Housing Cycle (2021-2029)
•Very-low Income: 117 units
•Low Income: 81 units
•Moderate Income: 91 units
•Above-Moderate Income: 93 units (Province Development) Total: 382 units
•222 Total Unit Increase from 5th Cycle
•Total need of 289 Affordable Units in the 6th Cycle
•Community Outreach
•Strategic Planning Sessions (2020-2022)
•Housing Element Meetings
•Community Study Session (April 11, 2022)
•Planning Commission Public Hearing (May 18, 2022)
•City Council Public Hearing (June 2, 2022)
Affordable Housing

City Housing Element Strategy
•City Approved Housing Element Strategy
•HWY 111 Site (100 units-16 units to the acre)
•Very-low Income: 50 units
•Low Income: 36 units
•Moderate Income: 13 units
•Lissoy Opportunity Site (128 units on 8 acres-16 units to the acre) •Very-low Income: 64 units
•Low Income: 46 units
•Moderate Income: 17 units
•Credits for existing and future ADUs
•Huntley Project
•Proposed Surplus
•Very-low Income: 5 units
•Low Income: 10 units
•Moderate Income: 2 units
•Above Moderate 105 units (e.g., Huntley and Province)

Lissoy Opportunity Parcel
•City has been looking at alternative sites in the community for additional affordable housing.
•April 11, 2022 Housing Element Workshop
•Community help to identify this site as one of the last and best sites for the development of affordable housing.
•May 18, 2022 Planning Commission Public Hearing (Approved) •June 2, 2022 City Council Public Hearing (Approved)
•City Council directed to acquire through a negotiated sale •Exploration of Possible Acquisition by eminent domain

Lissoy Opportunity Parcel
•Today’s Actions
•Description of Project
•Makes the necessary findings of public interest and necessity of the required project.
•Resolution Adopting an Addendum to the Certified EIR
•Resolution of Necessity for the fee interest of the property for an Affordable Housing, Public Park, Public Recreation Facilities, Open Space, and Supporting Parking.
•Continues process for the legal acquisition by eminent domain of the property for these purposes.
•Funding for the acquisition is available in the City Housing Fund

26529.00041\40788785.2

1 ATTACHMENT #1
Proposed Resolution Adopting EIR Addendum
for RON
(follows this page)

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City of Indian Wells
Resolution No. 2022-41

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RESOLUTION NO. 2022-41

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIAN

WELLS, CALIFORNIA, ADOPTING AN ADDENDUM TO THE CERTIFIED EIR FOR THE 1996 UPDATE TO THE CITY OF INDIAN WELLS GENERAL PLAN (SCH# 94092037) WITH REGARD TO THE PROPOSED
RESOLUTION OF NECESSITY FOR THE ACQUISITION OF APN 633- 360-002

WHEREAS, the City proposes to acquire the subject site (APN 633-360-002), which comprises approximately 34 acres of undeveloped land located at the northeast corner of Miles Avenue and Warner Trail in the City of Indian Wells (the “Property”); and

WHEREAS, this proposed acquisition of the Property for the development of affordable housing, public parking, recreation facilities and open space constitutes the Project for purposes of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA); and

WHEREAS, on February 1, 1996, the City of Indian Wells City Council adopted the 1996 Update to the City of Indian Wells General Plan (1996 General Plan). At the same time, the City Council certified by Resolution No. 96-9 the City of Indian Wells General Plan Final Environmental Impact Report (SCH No. 94092037) (Certified FEIR) in compliance with the California Environmental Quality Act (CEQA) and CEQA Guidelines; and

WHEREAS, in 1999, the City adopted a Negative Declaration and initiated proceedings to annex the City’s sphere of influence (approximately 400 acres, including APN 633-360-002) consistent with the City’s 1996 General Plan; and

WHEREAS, on December 19, 2002, the City adopted a Negative Declaration and approved a General Plan Amendment, Zoning Map Amendment, and Zoning Text Amendment which included APN 633-360-002; and

WHEREAS, in 2007 the City approved the General Plan Land Use Element Update and adopted an Addendum to the General Plan FEIR (2007 Addendum to FEIR); and

WHEREAS, in 2013, the City updated the Housing Element for the 2014-2021 planning period (5th cycle) and adopted an Addendum to the General Plan FEIR (2013 Addendum to FEIR); and

WHEREAS, pursuant to CEQA, when taking subsequent discretionary actions in furtherance of a project for which an EIR has already been certified, the Council is prohibited from requiring a subsequent or supplemental EIR unless at least one of the circumstances identified in Public Resources Code section 21166 or State CEQA Guidelines section 15162 and the City’s Local CEQA Guidelines, are present; and

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Resolution No. 2022-41

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WHEREAS, an Addendum to the Certified FEIR was prepared for the proposed Project (“Project Addendum”), pursuant to CEQA, the State CEQA Guidelines, and the City’s Local CEQA Guidelines, and a copy of the Project Addendum is attached hereto as Exhibit 1; and

WHEREAS, the Project Addendum finds that Project would not involve any changes to the APN 633-360-002’s existing land use and zoning or the associated development potential contemplated by Certified FEIR, as modified by the 2007 Addendum to FEIR and the 2013 Addendum to FEIR; and

WHEREAS, on November 3, 2022, the City Council of the City of Indian Wells (Council) conducted a duly-noticed public meeting on the proposed Project Addendum, at which time all persons wishing to testify in connection with the proposed Project Addendum were heard and the proposed Project Addendum was comprehensively reviewed; and

WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE CITY COUNCIL OF THE CITY OF INDIAN WELLS AS FOLLOWS:

SECTION 1. Compliance with the California Environmental Quality Act. The Council has reviewed and considered the Certified FEIR, subsequent CEQA documents, and the Project Addendum and finds that these documents taken together contain a complete and accurate reporting of all of the potential environmental impacts associated with the proposed Project. The Council further finds that the Project Addendum has been completed in compliance with CEQA, the State CEQA Guidelines, and the City’s Local CEQA Guidelines and contains a complete, objective, and accurate reporting of the environmental impacts associated with the proposed Project, and reflects the independent judgment and analysis of the Council.

SECTION 2. CEQA Findings. Based on the substantial evidence set forth in the record, including but, not limited to, the Certified FEIR, subsequent CEQA documents, and the Project Addendum, the Council finds that an addendum is the appropriate document for disclosing the changes reflected in the proposed Project, and that none of the conditions identified in Public Resources Code section 21166 and State CEQA Guidelines section 15162 or City’s Local CEQA Guidelines requiring subsequent environmental review have occurred, because:

(a) The Project does not constitute a substantial change that would require major revisions of the due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.

(b) There is not a substantial change with respect to the circumstances under which the Project will be developed that would require major revisions of the Certified FEIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects.

(c) New information of substantial importance has not been presented that was not known and could not have been known with the exercise of reasonable diligence at the time the

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Resolution No. 2022-41

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Certified FEIR was certified or adopted, showing any of the following: (i) that the modifications would have one or more significant effects not discussed in the earlier environmental documentation; (ii) that significant effects previously examined would be substantially more severe than shown in the earlier environmental documentation; (iii) that mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the applicant declined to adopt such measures; or (iv) that mitigation measures or alternatives considerably different from those analyzed previously would substantially reduce one or more significant effects on the environment, but which the applicant declined to adopt.

SECTION 3. The Council adopts the Project Addendum.

SECTION 4. This Resolution takes effect upon adoption.

SECTION 5. The City Clerk shall certify to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Indian Wells, California, at a regular meeting held on this 3rd day of November 2022.

____________________________

DANA REED
MAYOR

CERTIFICATION FOR RESOLUTION NO. 2022-41

I, Angelica Avila, City Clerk of the City of Indian Wells, California, DO HEREBY CERTIFY that the whole number of the members of the City Council is five (5); that the above and foregoing Resolution was duly and regularly passed and adopted at a regular meeting of the City Council of the City of Indian Wells on the 3rd day of November 2022, by the following vote:

AYES:

NOES:

ATTEST: APPROVED AS TO FORM:

______________________________ ____________________________

ANGELICA AVILA TODD LEISHMAN

CITY CLERK CITY ATTORNEY

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EXHIBIT 1

Proposed Project Addendum

(follows this page)

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City of Indian Wells
Resolution No. 2022-41

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City of Indian Wells
Resolution No. 2022-41

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City of Indian Wells
Resolution No. 2022-41

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ATTACHMENT 2
Proposed Resolution of Necessity
(follows this page)

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City of Indian Wells
Resolution No. 2022-42

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RESOLUTION NO. 2022-42

RESOLUTION OF NECESSITY FOR THE ACQUISITION OF A FEE INTEREST

IN CERTAIN REAL PROPERTY, BY EMINENT DOMAIN, LOCATED ON THE

NORTHEAST CORNER OF MILES AVENUE AND WARNER TRAIL, IN THE

CITY OF INDIAN WELLS, MORE PARTICULARLY DESCRIBED AS
ASSESSOR PARCEL NO. 633-360-002, IN RIVERSIDE COUNTY,

CALIFORNIA, FOR AN AFFORDABLE HOUSING, PUBLIC PARKING,

RECREATION FACILITIES AND OPEN SPACE PROJECT
WHEREAS, the City of Indian Wells (“City”) proposes to acquire a fee interest in certain real property, located on the northeast corner of Miles Avenue and Warner Trail, in Indian Wells, California, more particularly described as Assessor Parcel No. 633-360-002, for the City of Indian Wells to undertake an Affordable Housing, Public Parking, Recreation Facilities and Open Space Project, under the authority granted to it by section 37350.5 of the California Government Code; and
WHEREAS, in accordance with section 1245.235 of the California Code of Civil Procedure, the City scheduled a public hearing for November 3, 2022, at 1:30 p.m., at the City of Indian Wells City Council Chambers, located at City Hall, 44950 Eldorado Drive, Indian Wells, California 92210, and gave to each person whose property is to be acquired and whose name and address appeared on the last equalized county assessment roll, notice and a reasonable opportunity to appear at said hearing and be heard on the matters referred to in section 1240.030 of the California Code of Civil Procedure; and
WHEREAS, said hearing has been held by the City, and the affected property owners were afforded an opportunity to be heard on said matters; and WHEREAS, the City may now adopt a Resolution of Necessity in accordance with section 1240.040 of the California Code of Civil Procedure;

NOW, THEREFORE, THE CITY COUNCIL DOES HEREBY RESOLVE AND DECLARE AS FOLLOWS:

Section 1. Compliance with the California Environmental Quality Act. Compliance with California Code of Civil Procedure and California Environmental Quality Act. There has been compliance by the City with the requirements of Section 1245.235 of the California Code of Civil Procedure and the California Environmental Quality Act.

Section 2. Compliance with California Code of Civil Procedure. There has been compliance by the City with the requirements of section 1245.235 of the California Code of Civil Procedure regarding notice and hearing.

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City of Indian Wells
Resolution No. 2022-42

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Section 3. Public Use. The public use for the fee interest in certain real property to be acquired is for
the construction
and development of a new affordable housing development and accompanying amenities known as the City of Indian Wells affordable housing, public parking, recreation facilities and open space Project in the City of Indian Wells, Riverside County, California. Section 37350.5 of the California Government Code authorizes the City to acquire, by eminent domain, property necessary for such purposes.

Section 4. Description of Property. Attached and marked as Exhibit “A” are the legal definitions, and legal description, respectively, of the interest to be acquired by the City, which describe the general location and extent of the property with sufficient detail for reasonable identification.

Section 5. Findings. The City hereby finds and determines each of the following:
(a) The public interest and necessity require the proposed project;
(b) The proposed project is planned or located in the manner that will be most compatible with the greatest public good and least private injury;
(c) The property defined, described and depicted in Exhibit “A” is necessary for the proposed project; and
(d) The offers required by section 7267.2 of the California Government Code was made.

Section 6. Use Not Unreasonably Interfering with Existing Public Use. Some or all of the real property affected by the interest to be acquired is subject to easements and rights- of-way appropriated to existing public uses. The legal descriptions of these easements and rights- of-way are on file with the City and describe the general location and extent of the easements and rights-of-way with sufficient detail for reasonable identification. In the event the herein described use or uses will not unreasonably interfere with or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the future, counsel for the City is authorized to acquire the herein described property subject to such existing public use(s) pursuant to section 1240.510 of the California Code of Civil Procedure.

Section 7. More Necessary Public Use. Some or all of the real property affected by the interest to be acquired is subject to easements and rights-of-way appropriated to existing public uses. To the extent that the herein described use or uses will unreasonably interfere with

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Resolution No. 2022-42

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or impair the continuance of the public use as it now exists or may reasonably be expected to exist in the
future, the City
finds and determines that the herein described use or uses are more necessary than said existing public use. Counsel for the City is authorized to acquire the herein described real property appropriated to such existing public uses pursuant to section 1240.610 of the California Code of Civil Procedure. Staff is further authorized to make such improvements to the affected real property that it determines are reasonably necessary to mitigate any adverse impact upon the existing public use.

Section 8. Further Activities. Counsel for the City is hereby authorized to acquire the hereinabove described real property in the name of and on behalf of the City by eminent domain, and counsel is authorized to institute and prosecute such legal proceedings as may be required in connection therewith. Counsel is further authorized to take such steps as may be authorized and required by law, and to make such security deposits as may be required by order of court, to permit the City to take possession of and use said real property at the earliest possible time.

Counsel is further authorized to correct any errors or to make or agree to non-material changes in the legal description of the real property that are deemed necessary for the conduct of the condemnation action, or other proceedings or transactions required to acquire the subject real property. Counsel is further authorized to reduce or modify the extent of the interests or property to be acquired so as to reduce the compensation payable in the action where such change would not substantially impair the construction and operation for the project for which the real property is being acquired.

Section 9. Effective Date. This Resolution takes effect upon adoption.

PASSED, APPROVED, AND ADOPTED by the City Council of the City of Indian Wells, California, at a regular meeting held on this 3rd day of November 2022.

____________________________

DANA REED
MAYOR

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City of Indian Wells
Resolution No. 2022-42

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CERTIFICATION FOR RESOLUTION NO. 2022-42

AYES:

NOES:

ATTEST: APPROVED AS TO FORM:

______________________________ ____________________________

ANGELICA AVILA TODD LEISHMAN

CITY CLERK CITY ATTORNEY

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Resolution No. 2022-42

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EXHIBIT “A”
Legal Definition

The following is the definition of legal rights to be acquired by the City of Indian Wells:

“Fee” also known as fee simple or fee simple absolute, grants to the City of Indian Wells absolute ownership of the property.

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Resolution No. 2022-42

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Legal Description

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Resolution No. 2022-42

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ATTACHMENT #3
Legal Definition
The following is the definition of legal rights to be acquired by the City of Indian Wells:
“Fee” also known as fee simple or fee simple absolute, granting to the City of Indian Wells absolute ownership of the property.

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Legal Definition Cont’d

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Legal Definition Cont’d

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Legal Definition Cont’d

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INDIAN WELLS SUCCESSOR AGENCY
November 3, 2022

To: City Council
From: Finance Department
Prepared by: Kevin McCarthy, City Finance Director
Subject: Annual Recognized Obligation Payment Schedule 2023-24

RECOMMENDED ACTION:

Successor Agency FINDS that this action is exempt under the California Environmental Quality Act per Section 15061(e) (3) of the guidelines – Review for Exemption; and;

ADOPTS Resolution approving the Recognized Obligation Payment Schedule 23-24 for July 1, 2023, through June 30, 2024

DISCUSSION:

Summary:

The Successor Agency is required to prepare the “Recognized Obligation Payment Schedule” (“ROPS”) listing outstanding obligations of the Agency for the next year. Once the ROPS has been completed, the Successor Agency submits the ROPS to the Oversight Board for approval. Upon Oversight Board approval, the ROPS is submitted to the State Department of Finance for inspection and final review. The State Department of Finance requires submission of the new annual ROPS no later than February 1, prior to the reporting year.

The Successor Agency requests $8,641,602 during the upcoming ROPS cycle as follows:

1. Debt service payments of $5,814,376

2. Loan repayments of $2,587,226 paid to the City (General Fund)

3. Successor Agency Administrative Costs of $240,000

Background:

Pursuant to Assembly Bill No. 1X 26 and the California Supreme Court decision in the Matosantos case challenging the constitutionality of AB 26, all redevelopment agencies in

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the State were dissolved as of February 1, 2012, including the Redevelopment Agency of the City of Indian Wells (the “Redevelopment Agency”). Successor agencies to the former redevelopment agencies were designated to wind down the affairs of the former redevelopment agencies.

The Bill provided that upon dissolution of a redevelopment agency, either the City or another local government unit will agree to serve as the “successor agency” to hold the assets until they are distributed to other state and local government units . On January 12, 2012, the City Council elected to become the Successor Agency for the former redevelopment agency by the Bill as part of City resolution number 2012-03.

AB 26 provides that a successor agency is to be designated as the successor entity to the former Redevelopment Agency, vested with all authority, rights, powers, duties, and obligations previously awarded to the former Agency under the Community Redevelopment Law (Health & Safety Code, § 33000 et seq.), with certain exceptions.

This successor agency is responsible for the wind-down of the Agency's affairs. The City elected to be the Agency's successor agency by Resolution Bill No. 2012 -03 on January 12, 2012.

Recognized Obligation Payment Schedule (“ROPS”)

The activities of the City, as a successor agency, are overseen by an Oversight Board ("Oversight Board") until all the debts of the Agency are paid off, all Agency assets liquidated, and all property taxes previously paid to the Agency are redirecte d to local taxing agencies.

Once the Oversight Board approves, the Successor Agency submits the ROPS to the State Department of Finance for final approval and payment. The State Department of Finance requires submission of the new annual ROPS no later than February 1 before the reporting year.

Outstanding Agency Debt

As of June 30, 2022, the Agency debt was $84.0 million, as described below. The debt service listed below matures in different years and is scheduled to be repaid entirely by 2035. Annual principal retirements range between $10.0 million and $10.8 million.

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Administrative Fees

During the next ROPS cycle, the City (General Fund) will collect $240,000 to administer the Successor Agency. Administrative fees include administrative oversight, legal review and compliance, successor agency audits, bond and trustee costs, arbitrage and continuing disclosure, technology services, and office supplies.

California Environmental Quality Act (CEQA)

This action has been reviewed per the authority and criteria contained in the California Environmental Quality Act (CEQA), the State and local CEQA Guidelines, and the City's environmental regulations. The City, acting as the Lead Agency, determined that the ordinance is not subject to CEQA pursuant to Sections 15060(c)(2), 15060(c)(3), and 15061(b)(3) of the State CEQA Guidelines, because it will not result in a direct or reasonably foreseeable indirect physical change to the environment as there is no possibility that the action would result in a significant environmental impact, and because it does not constitute a “project” as defined in Section 15378 of the State CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3.

Balance at Balance at
Account Number Description 6/30/2021 Additions Deletions 6/30/2022 Balance Sheet Bonds Payable:
453.00.00.02357.000 2014 A-T Tax Allocation Bonds 8,385,000 - (4,110,000) 4,275,000 453.00.00.02358.000 2015 A Tax Allocation Bonds 14,375,000 - (1,615,000) 12,760,000 453.00.00.02360.000 2016 A Tax Allocation Bonds 36,660,000 - (110,000) 36,550,000 453.00.00.023XX.000 2020 A Tax Allocation Bonds 7,220,000 - (450,000) 6,770,000 Subtotal 66,640,000 - (6,285,000) 60,355,000 Add (less) deferred amounts:
453.00.00.02359.000 2015 A Premium 1,512,539 (245,276) 1,267,263 453.00.00.02361.000 2016 A Premium 5,548,954 - (421,440) 5,127,514 Subtotal 7,061,493 - (666,716) 6,394,777 Total bonds payable 73,701,493 - (6,951,716) 66,749,777 Other liabilities:
453.00.00.02225.000 Accrued Interest 1,015,960 874,626 (1,015,960) 874,626 453.00.00.02145.000 Consolidated Loan Payable 16,400,000 16,400,000 453.00.00.02145.001 RDA Operating Loan Payable 1,339,192 (1,339,192) - 453.00.00.02145.008 Interfund Loan Payable-SERAF 1,473,000 (1,473,000) - Subtotal 20,228,152 874,626 (3,828,152) 17,274,626 Total long-term liabilities 93,929,645 874,626 (10,779,868) 84,024,403

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FISCAL IMPACT:

The Successor Agency requests $8,641,602 during the upcoming ROPS cycle as follows:

4. Debt service payments of $5,814,376

5. Loan repayments of $2,587,226 paid to the City (General Fund)

6. Successor Agency Administrative Costs of $240,000

ATTACHMENTS:

1. Resolution

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RESOLUTION SA NO. 2022- 01

A RESOLUTION OF THE SUCCESSOR AGENCY TO THE DISSOLVED

REDEVELOPMENT AGENCY OF THE CITY OF INDIAN WELLS,

CALIFORNIA, APPROVING AND ADOPTING A DRAFT OF THE

RECOGNIZED OBLIGATION PAYMENT SCHEDULE PURSUANT TO
HEALTH AND SAFETY CODE SECTION 34177(l)
WHEREAS, pursuant to Health and Safety Code section 34173(d), the City of Indian Wells (“Successor Agency”) elected to become the successor agency to the Indian Wells Redevelopment Agency by City Council Resolution No. 2012-03 on January 12, 2012; and
WHEREAS, Health and Safety Code section 34177(l)(2) requires the Successor Agency to prepare a draft of the recognized obligation payment schedule (“ROPS”) covering the period from July 1, 2023, to June 30, 2024; and WHEREAS, Health and Safety Code section 34177(l)(2) requires the Successor Agency to submit a copy of the ROPS to the county administrative office, the county auditor-controller, and the Department of Finance at the same time that the Successor Agency submits the ROPS to the oversight board for its approval; and WHEREAS, upon approval by the Oversight Board, the Successor Agency is required to submit a copy of the approved ROPS (“Approved ROPS”) to the Riverside County Auditor-Controller, the California State Controller, and the State of California Department of Finance, and post the Approved ROPS on the Successor Agency’s website; and
WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, the City Council of the City of Indian Wells, serving as the Successor Agency to the dissolved Indian Wells Redevelopment Agency, RESOLVES as follows:

SECTION 1. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.

SECTION 2. The approval of the draft of the ROPS through this Resolution does not commit the Successor Agency to any action that may have a significant effect on the environment. As a result, such action does not constitute a project subject to the requirements of the California Environmental Quality Act. The City Clerk, acting on behalf of the Successor Agency, is authorized and directed to file a Notice of Exemption with the appropriate official of the County of Riverside, California, within five (5) days following the date of adoption of this Resolution.

ATTACHMENT #1

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Successor Agency to the Indian Wells Redevelopment Agency Resolution SA No. 2022-01

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SECTION 3. The Successor Agency APPROVES and ADOPTS the draft of the ROPS, in substantially the form attached to this Resolution as Exhibit “A,” as required by Health and Safety Code Section 34177.

SECTION 4. The City Manager, acting on behalf of the Successor Agency, is hereby authorized and directed to take any action necessary to carry out the purposes of this Resolution and comply with applicable law regarding the draft of the ROPS, including submitting the draft of the ROPS to the Riverside County Auditor-Controller, or its designee, the County Administrative Officer for Riverside County, the Department of Finance, and the Successor Agency’s oversight board, and following approval of the ROPS by the oversight board, submitting the Approved ROPS to the Riverside County Auditor- Controller, the California State Controller, and the State of California Department of Finance, and posting the Approved ROPS on the Successor Agency’s website.

SECTION 5. This Resolution shall take effect immediately upon its adoption.

PASSED, APPROVED, AND ADOPTED by the Successor Agency to the Redevelopment Agency of the City of Indian Wells, California, at a regular meeting held on the 3rd day of November 2022.
________________________________

DANA REED
MAYOR

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Successor Agency to the Indian Wells Redevelopment Agency Resolution SA No. 2022-01

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CERTIFICATION FOR RESOLUTION SA NO. 2022-01
I, Angelica Avila, City Clerk of the City of Indian Wells, California, DO HEREBY CERTIFY that the whole number of the members of the Successor Agency to the Redevelopment Agency of the City of Indian Wells is five (5); that the above and foregoing Resolution was duly and regularly passed and adopted at a regular meeting of the Successor Agency to the Redevelopment Agency of the City of Indian Wells on the 3rd day of November 2022, by the following vote:

AYES:

NOES:

ATTEST: APPROVED AS TO FORM:
_____________________________ ____________________________

ANGELICA AVILA TODD LEISHMAN

CITY CLERK CITY ATTORNEY

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Successor Agency to the Indian Wells Redevelopment Agency Resolution SA No. 2022-01

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EXHIBIT “A”

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Indian Wells City CouncilNovember 3, 2022

Indian Wells City Council
November 3, 2022