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5.1Construction of Tenant Improvements..................................................................3
5.2Prevailing Wages...................................................................................................4
5.3Requirements for Certificate of Occupancy..........................................................4
5.4Construction Contracts..........................................................................................4
5.5Landlord Has No Responsibility...........................................................................5
5.6Compliance with Law and Quality........................................................................5
5.7Notices of Non-responsibility ...............................................................................5
5.8Mechanics’ Liens ..................................................................................................5
5.9Notice of Completion............................................................................................5
5.10Title of Improvements...........................................................................................6 ARTICLE 6 RENT AND TAXES................................................................................................6
6.1Rent .......................................................................................................................6
6.2Late Payments .......................................................................................................6
6.3Place of Payment...................................................................................................7
6.4Possessory Interest Taxes and Utilities .................................................................7
6.5Other Tenant Property Taxes ................................................................................7 ARTICLE 7 SECURITY DEPOSIT.............................................................................................7 ARTICLE 8 TENANT’S CONDUCT OF BUSINESS ................................................................8
8.1Permitted Use ........................................................................................................8
8.2Covenant to Operate..............................................................................................8
8.3Tenant’s Signs.......................................................................................................8 ARTICLE 9 MAINTENANCE, REPAIRS AND ALTERATIONS............................................9
9.1 Tenant’s Maintenance Obligations........................................................................9
9.2 Landlord’s Maintenance Obligations....................................................................9
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9.3 Landlord’s Right of Entry .....................................................................................9
9.4 Alterations .............................................................................................................9 ARTICLE 10 PARKING ............................................................................................................10 ARTICLE 11 DAMAGE TO TENANT’S PROPERTY; WAIVER..........................................11 ARTICLE 12 INSURANCE .......................................................................................................11
12.1Tenant’s Insurance ..............................................................................................11
12.2Restrictions on Use..............................................................................................12
12.3Additional Insureds .............................................................................................13
12.4Certificate(s) of Insurance...................................................................................13
12.5Landlord Cure Right............................................................................................13
12.6Waiver of Subrogation ........................................................................................13
12.7Indemnity ............................................................................................................13 ARTICLE 13 DAMAGE ............................................................................................................13
13.1Insured Casualty..................................................................................................13
13.2Uninsured Casualty .............................................................................................14
13.3Abatement ...........................................................................................................14
13.4Waiver of Termination........................................................................................14 ARTICLE 14 EMINENT DOMAIN...........................................................................................15
14.1Taking..................................................................................................................15
14.2Total Taking ........................................................................................................15
14.3Partial Taking ......................................................................................................15
14.4Award..................................................................................................................15
14.5Continuation of Lease .........................................................................................15 ARTICLE 15 ASSIGNMENT AND SUBLETTING.................................................................15
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15.1Assignment..........................................................................................................15
15.2Procedures ...........................................................................................................16
15.3Standard for Consent After Tenant Event of Default..........................................16
15.4No Release; Form................................................................................................16
15.5Sublease...............................................................................................................16 ARTICLE 16 DEFAULTS..........................................................................................................17
16.1Events of Default.................................................................................................17
16.2Landlord Remedies .............................................................................................17
16.3Default by Landlord ............................................................................................17 ARTICLE 17 SUBORDINATION, ATTORNMENT AND ESTOPPEL
CERTIFICATES .............................................................................................................18
17.1Subordination ......................................................................................................18
17.2Attornment ..........................................................................................................18
17.3Estoppel Certificates ...........................................................................................18
17.4Subordination of Landlord’s Liens .....................................................................18 ARTICLE 18 MATTERS OF RECORD....................................................................................18 ARTICLE 19 UTILITIES AND SERVICES..............................................................................19 ARTICLE 20 MISCELLANEOUS.............................................................................................19
20.1Hazardous Materials............................................................................................19
20.2Notices.................................................................................................................20
20.3Force Majeure .....................................................................................................20
20.4Surrender .............................................................................................................20
20.5Miscellaneous Provisions....................................................................................21
20.6No Relocation Assistance....................................................................................23
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EXHIBITS
EXHIBIT “A” Diagram of Premises
EXHIBIT “B” Initial Tenant Improvements
EXHIBIT “C” Form of Memorandum of Lease
EXHIBIT “D” Notice of Lease Term Dates
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LEASE
This Lease (“Lease”) is entered into as of the “Effective Date” (as defined in Section 1.1 below) by and between “Landlord” and “Tenant” (each as defined in Sections 1.2 and 1.3 below).
ARTICLE 1
BASIC LEASE PROVISIONS
1.1 Effective Date. March _____, 2022
1.2 Landlord. City of Indio, a California municipal corporation.
1.3 Tenant. Avenida Music, LLC, a California limited liability company.
1.4 Premises. The land described on Exhibit “A” attached hereto, which has a street address of 82707 Miles Avenue and all improvements thereon.
1.5 Term. The term of this Lease is for three (3) years, commencing on the Term Commencement Date described in Section 1.6, and ending three (3) calendar years thereafter.
1.6 Term Commencement Date. The Term Commencement Date shall be date on which the Landlord tenders delivery of keys to the Premises to Tenant. The Term Commencement Date shall be memorialized by a letter from the Landlord to Tenant in notice in the form attached hereto as Exhibit D.
1.7 Conditional Base Rent. The rent shall be $1,767.81 per calendar month during the Term, prorated for any partial calendar month in the Term; however for so long as Tenant operates its business in the Premises, the rent shall be forgiven. As used in this Lease, the phrase “operates its business in the Premises” means diligently proceeding with the construction of the Improvements as described in Article 5 in addition to operating the business at the Premises in the manner described in Section 8.2.
1.8 Security Deposit. $3,000, which shall be subject to Article 7. Tenant shall pay the Security Deposit to Landlord on the date Tenant signs and delivers a counterpart of this Lease to Landlord.
1.9 Use of Premises. The Premises shall open and be used solely for the operation of a tap- room, coffee shop and to provide live music entertainment and programming and associated pop-up food vendors and merchandise. Tenant may sublease portions but not all of the Premises for the operation of a tap-room, coffee shop and office space for entertainment and production businesses.
1.10 Parking. Tenant shall have the right to use the general surface parking adjacent to the Building in the same manner as the general public.
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1.11 Notices.
To Landlord: City of Indio
100 Civic Center Mall,
Indio, CA 92201
Attn: City Manager
To Tenant:
Avenida Music, LLC
82848 Jamestown Avenue
Indio, California 92201
Attention: Josiah Gonzalez
1.12 Broker(s). Not Applicable.
ARTICLE 2
PREMISES
2.1 Lease of Premises. Landlord leases to Tenant and Tenant leases from Landlord, for the “Term” (as defined in Article 3) and upon the covenants and conditions set forth in this Lease, the premises described in Section 1.4 (“Premises”).
ARTICLE 3
TERM
3.1 Term. The term of this Lease shall commence upon the Term Commencement Date, and shall end on the date described in Section 1.5. Such term is referred to in this Lease as the “Term”.
3.2 Extension Term(s). Not Applicable.
ARTICLE 4
POSSESSION AND INITIAL IMPROVEMENTS
4.1 Delivery of Possession. Landlord shall deliver possession of the Premises on the Term Commencement Date.
4.2 Tenant’s Initial Improvements. Tenant shall diligently prosecute submission of each of the following to Landlord, and in all events shall deliver each of the following to Landlord prior to the commencement of Tenant’s Initial Improvements (as defined in Exhibit “B”: (a) “Final Approved Plans” (as defined in Exhibit “B”) (b) a copy of Tenant’s building permit, if issued by such date; and (c) executed copies of policies of insurance or certificates thereof (as required under Article 12). Tenant shall diligently prosecute Tenant’s Initial Improvements to completion. Tenant shall deliver to Landlord a copy of the certificate of occupancy for the
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Premises issued by the appropriate governmental agency upon completion of Tenant’s Initial Improvements. Unless identified as by Landlord as having to be removed prior to Lease termination pursuant to Section 20.4, all of Tenant’s Initial Improvements including, but not limited to, light fixtures, floor coverings and partitions, but excluding trade fixtures and signs, shall be deemed to be the property of Landlord upon installation thereof
4.3 Condition of Premises. Tenant acknowledges that: (i) neither Landlord nor any employee, representative or agent of Landlord has made any representation or warranty (express or implied) with respect to the Premises or any other portion of the Premises, and (ii) Landlord shall have no obligation to improve or alter the Premises or the Premises for the benefit of Tenant. Tenant acknowledges that Tenant has thoroughly inspected the Premises and Tenant shall accept the Premises in their current “AS-IS” condition, without representation or warranty, express or implied. Notwithstanding, Landlord shall perform an inspection of the Premises prior to Tenant’s commencement of the Improvements to confirm that the building is free of leaks, structural damage, mold and infestation (rodent, termites) and if necessary shall remedy such issues as long as the cost for such remediation does not exceed $50,000. If the costs exceed such amount, Landlord may elect to terminate this Lease by giving notice to Tenant within fifteen (15) days following Landlord’s determination; provided however, Tenant may rescind Landlord’s election to so terminate this Lease by paying to Landlord the difference between the amount and the actual costs for remediation within thirty (30) days from the date Landlord gives such termination notice to Tenant. In such event, the Lease shall not terminate and Landlord shall prosecute the required work to completion. Any work performed by Landlord under this Section shall be completed within 60 days of the inspection.
4.4 Construction-Related Accessibility Standards. The Premises have not been inspected by a Certified Access Specialist (CASp). A Certified Access Specialist (CASp) can inspect the Premises and determine whether the Premises comply with all of the applicable construction- related accessibility standards under state law. Although state law does not require a CASp inspection of the Premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the Premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises. In that regard, the parties agree that in the event Tenant requests a CASp inspection, Tenant shall pay any such inspection fees and the cost of making any such repairs.
ARTICLE 5
CONSTRUCTION OF IMPROVEMENTS
5.1 Construction of Tenant Improvements. Tenant shall, at its sole cost and expense, promptly after the Commencement Date commence and diligently pursue the obtaining of all necessary licenses and permits for, and the completion of the work described in Scope of Improvements attached hereto as Exhibit “B” (the “Improvements”) all in accordance with all the terms and conditions of this Article 5, provided, however, that Tenant must first deliver preliminary plans and specifications for such Improvements to Landlord for Landlord’s approval.
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Landlord shall have the sole discretion to approve or disapprove such plans and specifications within 10 business days from receipt. Any other improvements or alterations (including deviations from the approved plans) shall require Landlord’s prior written consent. In addition, the list of Improvements shall be sufficiently detailed (manufacturer, quantity, etc.) so that Landlord can approve the exact Improvements that will be installed to undertake the evaluation set forth in Section 5.10. Once the final list of Improvements is approved by the City, that list shall be incorporated herein as Exhibit B. Tenant’s failure to complete, or delay in completing, any such improvements shall not extend the Improvement Completion Date as defined herein.
All Improvements shall be subject to obtaining all required governmental permit and approvals.
Tenant shall diligently prosecute such construction to completion no later than three months after the Term Commencement Date (“Improvement Completion Date”) and shall open the Premises for business no later than the Improvement Completion Date, unless the Improvement Completion Date is extended by the City Manager in his discretion.
5.2 Prevailing Wages. In making any approved Improvements or alterations, Tenant shall comply with all applicable laws, including prevailing wage laws (California Labor Code Sections 1720 et seq.) and shall defend, indemnify and hold Landlord harmless from and against any and all claims by any third parties, including but not limited to, contractors and subcontractors for prevailing wages.
5.3 Requirements for Certificate of Occupancy. Tenant shall comply with the following requirements prior to obtaining a Certificate of Occupancy and the following shall be additional conditions to the issuance thereof:
(a) All building permits for the applicable Improvements have been issued by the applicable governmental authorities and copies of such building permits (except those issued by Landlord) have been delivered to Landlord;
(b) All required inspections of the Improvements by the applicable governmental agencies have taken place and the completed work have passed all such inspections; (c) Tenant has submitted to Landlord (i) all invoices and proof of payment for the Improvements; and (ii) appropriate final lien releases and waivers, conditioned only upon final payment of the applicable sum specified therein, from any and all contractors and materialmen which provided services or installed supplies to or for the account of Tenant with respect to the Improvement;
(d) Tenant has completed the Improvements described on the invoices submitted; and (e) Tenant has provided to Landlord two (2) sets of as-built plans and a disk with an electronic file (including both PDF and Computer Aided Design [“CAD”] electronic versions) of all the Improvements.
5.4 Construction Contracts. All Improvements and any alterations thereto shall be performed only by competent and qualified contractors duly licensed under the laws of the State of California pursuant to written contracts with such contractors.
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5.5 Landlord Has No Responsibility. It is expressly acknowledged and agreed that Landlord shall have no responsibility for performing any work in connection with processing of necessary approvals or for performing any work to the Premises in order to prepare the Premises for construction by Tenant, and that all work shall be performed by Tenant at Tenant’s sole cost and expense. Notwithstanding the foregoing, Landlord agrees to provide reasonable cooperation with Tenant’s processing of necessary approvals for the work in the Premises, including by signing documents as the owner of the Premises or by participating in meetings with governmental officials if required by such officials.
5.6 Compliance with Law and Quality. Tenant shall cause all Work (a) in a workmanlike manner with only new and high quality building materials, (b) in compliance with all applicable building codes and other applicable laws, ordinances, regulations, and orders of all federal, state, county, and local governmental agencies or entities having jurisdiction over the Property, and (c) in compliance with all applicable insurance requirements. Without limiting the generality of the foregoing provisions, Tenant shall not permit any component of any Work to be commenced until all building permits and other governmental permits, licenses and approvals required in connection with such component of the Work have been issued.
5.7 Notices of Non-responsibility. Landlord shall, at any and all times during the Term, have the right to post and maintain on the Premises and to record as required by law any notice or notices of non-responsibility provided for by the mechanics’ lien laws of the State of California. Tenant shall give Landlord not less than thirty (30) days’ written notice prior to the commencement of any work (including site preparation work) or the delivery of building materials to the Premises.
5.8 Mechanics’ Liens. At all times during the Term, Tenant shall keep the Premises and all building and improvements now or hereafter located on the Premises free and clear of all liens and claims of liens for labor, services, materials, supplies, or equipment performed on or furnished to the Premises. In case of any such lien attaching or notice of any lien, the Tenant covenants and agrees to cause it to be immediately released and removed of record or the Landlord, at its sole option, may immediately take all action necessary to release and remove such lien and the Tenant shall upon demand reimburse the Landlord for all costs involved therewith. Should Tenant fail to pay and discharge or cause the Premises to be released from any such lien or claim of lien within thirty (30) days after service on Tenant of written request from Landlord to do so, Landlord may pay, adjust, compromise and discharge any such lien or claim of lien on such terms and manner as Landlord may deem appropriate. In such event, Tenant shall, on or before the first day of the next calendar month following any such payment by Landlord, reimburse Landlord for the full amount paid by Landlord in paying, adjusting, comprising, and discharging such lien or claim of lien, including any attorneys’ fees and other costs expended by Landlord, together with interest as provided in Section 20.5 from the date of payment by Landlord to the date of repayment by Tenant.
5.9 Notice of Completion. Upon completion of the Improvements, the Tenant agrees to cause a Notice of Completion to be recorded in the Riverside County Recorder’s Office in accordance with Section 3093 of the California Civil Code or any successor statute, and the Tenant shall deliver to the Landlord a reproducible copy of the “as built” drawings of the
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Improvements accompanied by a certificate signed by Tenant’s architect and a Certificate of Occupancy from the applicable public authority.
5.10 Title of Improvements.
(a) Any and all improvements placed or erected on the Premises as well as any and all other alterations, additions, improvements and fixtures (except for improvements that are excluded from the Premises and also except for Tenant’s furniture and trade fixtures) made or placed in or on the Premises by Tenant shall be considered part of Premises, and shall remain on the Premises and on the expiration or any earlier termination of this Lease shall become the sole property of Landlord subject to paragraph (b) below or, if Landlord so elects and upon written notice to Tenant, shall be demolished and removed by Tenant from the Premises at Tenant’s sole expense. Tenant shall not remove any improvements from the Premises, commit or permit any waste, or destroy or modify any improvements on the Premises except as expressly permitted by this Lease.
(b) Upon the expiration or earlier termination of this Lease, Landlord shall pay to Tenant the unamortized cost of the Improvements made by Tenant to the Premises and which shall have been approved by Landlord; such unamortized portion shall be determined by amortizing the cost of such Improvements, on a straight line basis, over the period from their completion to the end of the period of their reasonably estimated useful life, as determined in good faith by Landlord (the unamortized portion of the costs would be the portion of such costs allocable to the period from the expiration or earlier termination of this Lease, to the end of the period of estimated useful life). No approval by Landlord of any plans or specifications shall constitute (i) approval of architectural or engineering sufficiency or representation, or (ii) warranty by Landlord as to the adequacy or sufficiency of the plans and specifications or the improvements contemplated for Tenant’s use or purpose. Landlord, by approving the plans and specifications, assumes no responsibility or liability for any defect in any improvements constructed on the basis of the plans and specifications.
ARTICLE 6
RENT AND TAXES
6.1 Rent. Tenant shall pay the Rent specified in Section 1.7 in monthly installments, on or before the last day of each month, without prior demand and without offset, abatement or deduction, commencing on the Term Commencement Date as defined in Section 1.6. Should the date on which rent commences be a day other than the first (1st) day of a calendar month, then the monthly installment of Rent for the first partial month shall be prorated based on a 30-day month.
6.2 Late Payments. If any rent, or any other sum due, is not received by Landlord from Tenant within ten (10) business days after the date when due, Tenant shall immediately pay to Landlord a late charge equal to five percent (5%) of such sum due, and Landlord and Tenant agree that this late charge represents a reasonable estimate of the direct and indirect costs, expenses and damages Landlord will incur as a result of Tenant’s late payment (which damages
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would be impractical and extremely difficult to calculate accurately) and is therefore fair compensation to Landlord for its loss suffered by reason of late payment by Tenant.
6.3 Place of Payment. Tenant shall make all payments to Landlord at the first address for Landlord specified in Section 1.11, but with the addition of “Attn: Finance Department”, or to such other address and/or person as Landlord may from time to time designate in writing to Tenant.
6.4 Possessory Interest Taxes and Utilities. Tenant shall be responsible for g the payment when and as due of all real property taxes on Tenant’s possessory interest, and all charges for gas, electricity, telephone service, water, sewer service, trash removal and other utilities and services furnished to the Property during the Term.
LANDLORD HEREBY GIVES TENANT NOTICE, AND TENANT ACKNOWLEDGES
RECEIPT OF SUCH NOTICE, AS REQUIRED PURSUANT TO CALIFORNIA REVENUE AND TAXATION CODE SECTION 107.6, THAT THE LEASEHOLD INTEREST CREATED
BY THIS LEASE MAY CONSTITUTE A POSSESSORY INTEREST SUBJECT TO
PROPERTY TAXATION AND AS A RESULT TENANT MAY BE SUBJECT TO A
POSSESSORY INTEREST TAX BEING LEVIED AGAINST THE PROPERTY AND/OR TENANT’S LEASEHOLD INTEREST, AND THAT TENANT SHALL BE OBLIGATED TO PAY SUCH TAX WHEN DUE TO THE LEVYING AUTHORITY.
6.5 Other Tenant Property Taxes. Tenant shall pay, prior to delinquency, all taxes, assessments, license fees and public charges levied, assessed or imposed upon its business operation, trade fixtures, merchandise and other personal properly in, on or upon the Premises.
If any such items of property are assessed with property of Landlord, then the assessment shall be equitably divided by Landlord between Landlord and Tenant. If any such taxes on Tenant’s personal property or trade fixtures are levied against Landlord or Landlord’s property or if the assessed value of the Premises or the Premises is increased by Tenant’s construction of any alterations inclusion therein of a value placed upon such personal property or trade fixtures, Tenant shall pay the amount thereof as invoiced to Tenant by Landlord within thirty (30) days following Landlord’s delivery of such invoice together with reasonable evidence of such allocation.
ARTICLE 7
SECURITY DEPOSIT
Concurrently with Tenant’s execution of this Lease, Tenant shall deposit with Landlord the sum specified in Section 1.8 (“Security Deposit”), in cash. If Tenant defaults with respect to any provision of this Lease, including, but not limited to the provisions relating to the payment of rent, Landlord may (but shall not be required to) use, apply or retain all or any part of this Security Deposit for the payment of any rent or any other sum in default, or for the payment of any amount which Landlord may spend or become obligated to spend by reason of Tenant’s default, or to compensate Landlord for any other loss or damage which Landlord may suffer by reason of Tenant’s default. If any portion of the Security Deposit is so used or applied Tenant shall, within five (5) business days after written demand therefor, deposit cash with Landlord in
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an amount sufficient to restore the Security Deposit to its original amount and Tenant’s failure to do so shall be a default under this Lease. Landlord shall not be required to keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to interest on the Security Deposit. If Tenant shall fully and faithfully perform every provision of this Lease to be performed by it, the Security Deposit or any balance thereof shall be returned to Tenant (or, at Landlord’s option, to the last assignee of Tenant’s interest hereunder) within ninety (90) days following expiration of the Term. If Landlord transfers its interest in the Premises, Landlord shall transfer the cash Security Deposit to Landlord’s successor in interest. TENANT HEREBY WAIVES THE PROVISIONS OF SECTION 1950.7 OF THE CALIFORNIA CIVIL CODE AND AGREES THAT THE FOREGOING PROVISIONS OF THIS ARTICLE 7 SHALL GOVERN LANDLORD’S USE AND RETURN OF THE SECURITY DEPOSIT.
ARTICLE 8
TENANT’S CONDUCT OF BUSINESS
8.1 Permitted Use. Tenant shall use the Premises solely for the use specified in Section 1.9 and for no other use or purpose. Tenant shall conduct its operations in a manner that shall not disturb other tenants or create a nuisance.
8.2 Covenant to Operate. From and after the date Tenant opens for business from the Premises, and except for closures beyond the Tenant’s control (such as damage/destruction), Tenant shall keep the entire Premises continuously open for business no less than five (5) days a week and hours of operation to correspond with the uses at the Premises. For example, for the coffee shop use, hours of operation shall be during the mornings whereas for the operation of the tap-room, hours of operation shall be during the afternoon and evenings. Tenant shall make its best efforts towards providing music offerings (live bands, disc jockeys, etc.) at the Premises at least five days per week within three months after the start of Tenant’s operation of the Premises.
Tenant shall have its exterior signs adequately illuminated continuously during at least those hours and days that the Premises are required to be open for business to the public.
Notwithstanding, Tenant, at its discretion, may close for up to five days per calendar year, however, Tenant shall provide written notice of any such closure to the City at least seven days in advance.
8.3 Tenant’s Signs. Tenant shall not affix upon the exterior (or interior windows or doors) of the Premises any sign, advertising placard, name, insignia, trademark, descriptive material or other like item (collectively, the “Exterior Signs”), unless the Exterior Signs: (i) comply with all governmental requirements, and (ii) are approved by Landlord, in its proprietary capacity (and not as a part of governmental approval), in its sole and absolute discretion. All of the Exterior Signs shall be erected by Tenant at its sole cost and expense, shall be professionally prepared, and Tenant shall maintain all of its Exterior Signs in good condition and repair during the Term.
Prior to the expiration, or upon earlier termination of this Lease, as applicable, Tenant shall remove all of its Exterior Signs and restore the areas on which the Exterior Signs were located to their condition prior to the installation of the Exterior Signs, all at Tenant’s sole cost and expense.
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ARTICLE 9
MAINTENANCE, REPAIRS AND ALTERATIONS
9.1 Tenant’s Maintenance Obligations. Tenant shall maintain in good condition and repair, the entirety of the Premises (except that portion of Premises to be maintained by Landlord), including the Improvements and all Fixtures, and the HVAC systems (collectively, the "Premises Systems") (collectively, the “Premises Systems”).
9.2 Landlord’s Maintenance Obligations. Landlord shall repair, maintain in good and tenantable condition and replace, as necessary, the roof, exterior walls and structural components of the Premises (including the structural floor) and all meters, pipes, conduits, equipment (excluding heating, ventilation and air conditioning equipment), components and facilities that supply the Premises with utilities (except as the appropriate utility company has assumed these duties); provided however that Landlord shall not be required to make repairs necessitated by reason of any acts or omissions of Tenant, including negligence or willful misconduct of Tenant or anyone claiming under Tenant, by reason of the failure of Tenant to perform or observe any conditions or agreements of this Lease, or by reason of Improvements made by Tenant or anyone claiming under Tenant.
9.3 Landlord’s Right of Entry. Landlord, its agents, contractors, servants and employees may enter the Premises following not less than twenty-four (24) hours prior written notice to Tenant (except in the event of an emergency, in which case no notice shall be required) and Landlord’s good faith efforts to coordinate such entry with Tenant’s on-site management so as to minimize interference with Tenant’s business operations (except in a case of emergency, in which case no notice shall be required): (a) to examine the Premises; (b) to perform any obligation or exercise any right or remedy of Landlord under this Lease; and (c) to cure Tenant’s failure to perform its obligations under this Lease, including work necessary to comply with laws, ordinances, rules or regulations of any public authority.
9.4 Alterations. After initially opening the Premises for business, Tenant shall not make or cause to be made to the Premises any addition, renovation, alteration, or reconstruction without Landlords prior written consent, which includes alterations that (i) affect the exterior appearance of the Premises, fire sprinkler systems, exterior walls, the floor slab, or roof of the Premises, (ii) require or result in any penetration of the roof, demising walls or floor slab of the Premises, (iii) involve structural changes or additions, (iv) increase the level of services or utilities supplied, or (v) alterations to the building. Alterations to address normal wear and tear, alterations to comply with Section 9.1 above or alterations that do not require a building permit or other city permit are permitted without Landlord’s consent. except for normal wear and tear and alterations to comply with Section 9.1 above). Any request for consent to Alterations requiring consent shall be accompanied by two (2) complete sets of plans and specifications for the proposed Alterations suitable for submission to Landlord for evaluation and a statement of the identity of the contractor who will perform such Alterations. Tenant shall pay all reasonable out-of-pocket costs incurred by Landlord in the evaluation, as applicable, of the plans and specifications. In addition, as a condition to Landlord’s granting of its consent to any Alterations, Landlord shall have the right to approve the architect, contractors, subcontractors designing or performing such
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Alterations, which approval shall not be unreasonably delayed, withheld or conditioned and shall be granted or denied within fifteen (15) business days (provided that in any event Premises standard subcontractors shall be used for work affecting structural portions, or base building mechanical and fire and life safety systems and utility systems so long as such subcontractors are competitively priced and reasonably available). All Alterations to be performed by Tenant in the Premises, including the delivery, storage and removal of materials, shall be reasonably scheduled through Landlord, and shall be performed in accordance with regulations imposed in good faith by Landlord. All Alterations (whether or not Landlord’s consent is required therefor) shall be completed in a good and workmanlike manner and in accordance with all applicable Laws. All Alterations requiring Landlord’s consent shall be completed in accordance with the approved plans and specifications therefor. Promptly following the completion of any Alterations where the preparation of “as-built” plans would be customary for the particular Alterations performed, Tenant shall deliver to Landlord both a “hard” copy and a copy on CAD diskette of the “as-built” plans and specifications (including all working drawings) for such Alterations. Promptly following the completion of any Alterations for which any governmental permit, approval or sign-off is required under applicable Laws, Tenant shall deliver to Landlord a copy of signed-off permits, inspection cards or other documentation evidencing governmental approval of completion of the work. Unless identified as by Landlord as having to be removed prior to Lease termination pursuant to Section 20.4, all of Tenant’s Alterations including, but not limited to, light fixtures, floor coverings and partitions, but excluding trade fixtures and signs, shall be deemed to be the property of Landlord upon installation thereof. Within thirty (30) days after the completion of any Alterations, Tenant shall deliver to Landlord a set of “as built” plans depicting the Alterations as actually constructed or installed. If Tenant shall make any permitted Alterations, Tenant shall carry “Builder’s All Risk” insurance in an amount reasonably determined by Landlord covering the construction of such Alterations and such other insurance as Landlord may reasonably require. Any Alterations to the Premises which are required by reason of any future law, ordinance, rule, regulation or order of any governmental authority having jurisdiction over the Premises, or any future change in any such existing law, ordinance, rule, regulation or order, and which does not pertain to the structural portions of the Premises, shall be at the sole cost of Tenant. Any inspection by Landlord of such Alterations shall in no event constitute Landlord’s approval of the work so performed, nor shall Landlord be responsible for or have any liability with respect to such inspections. If Tenant’s Alterations trigger: (i) required improvements for disabled access, or (ii) any other legally required improvements to the Premises, then such improvements shall be at Tenant’s sole cost.
ARTICLE 10
PARKING
It is understood that rules and regulations with respect to the general parking area adjacent to the Premises(“Parking Area”) may be established and amended by Landlord, in Landlord’s reasonable discretion, from time to time. If Landlord utilizes the Parking Area for special events (i.e. tamale festival, concerts, etc.) whereby the Parking Area is not available for general parking or the Parking Area is closed to the general public including Tenant, Landlord agrees to reserve
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three parking spaces for Tenant’s use during such closure unless otherwise agreed to by the Parties.
ARTICLE 11
DAMAGE TO TENANT’S PROPERTY; WAIVER
Notwithstanding anything contained in this Lease to the contrary, Landlord or its agents and employees shall not be liable for (a) loss or damage to any property by theft or otherwise, or (b) any injury or damage to person or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water or rain which may leak from any part of the Premises or from pipes, appliances or plumbing work therein or from the roof, street, sub-surface or from any other place or resulting from dampness or any other cause whatsoever, except to the extent (i) resulting from the gross negligence or willful misconduct of Landlord or its contractors, agents, servants or employees or breach of this Lease by Landlord and (ii) not covered by the insurance maintained by Tenant (or which would not have been so covered if Tenant had maintained the insurance required to be maintained by Tenant pursuant to this Lease). Landlord or its agents shall not be liable for interference with light or other similar intangible property interests. Tenant shall give prompt notice to Landlord in case of fire or accidents in the Premises and of defects therein or in the fixtures or equipment located therein.
ARTICLE 12
INSURANCE
12.1 Tenant’s Insurance. Tenant, at its sole cost and expense, commencing on the date Tenant is given access to the Premises, and continuing during the Term, shall procure, pay for and thereafter keep in full force and effect the following types of insurance, in at least the amounts and in the forms specified below:
(a)Commercial General Liability (CGL) with limits no less than Two Million Dollars ($2,000,000.00) per occurrence basis including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than Two Million Dollars ($2,000,000) per occurrence. Tenant shall maintain in force liability insurance, at all times during the term of this Lease and any renewal or extension thereof, which shall insure and indemnify Landlord, the City Council and each member thereof, and every officer and employee of Landlord against liability or financial loss resulting from any suits, claims or actions brought by any person or persons and from all costs and expense of litigation brought against Landlord, the City Council and every member thereof for any injury to persons and/or damage to property in, on or about the Premises by reason of the use or occupation by Tenant or by any other person or persons of the Premises and the activities of Tenant. (b) A policy or policies of Workers’ Compensation insurance in the amount required by the State of California.
(c)Property Insurance against all risk of loss at full replacement cost with no coinsurance penalty provision at Tenant’s cost and expense, shall be obtained and at all times during the term hereof maintain in effect covering (1) all improvements included in the Premises;
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(ii) Tenant’s trade fixtures, furnishings, equipment, and inventory of merchandise located in the Premises; and (2) all alterations, additions, and changes made in or to the Premises during the term of this Lease at Tenant’s expense, providing protection to the extent of not less than one hundred percent (100%) of the insurable value of all said items against any peril included under insurance industry practices in the jurisdiction of the Premises within the classification “fire and extended coverage,” together with insurance against vandalism, malicious mischief, and sprinkler leakage or other sprinkler damage, if sprinklers are installed, and including “use and occupancy” and/or “business interruption” coverage. Tenant hereby waives any and all rights of recovery against Landlord for any loss occurring to such items on account of fire or other casualty, and the aforesaid policies of insurance shall contain appropriate provision recognizing this release by Tenant and waiving all right of subrogation by the insurance carrier. The proceeds of such insurance, so long as this Lease remains in effect, shall be used to repair or replace the items so insured in the event of loss on account of fire or other casualty. (d)Automobile Liability: Covering any auto, or if Tenant has no owned autos, hired, and non-owned autos, with limits no less than the amount required by law per accident for bodily injury and property damage.
(e)Plate Glass Insurance: Plate glass insurance covering all plate glass on the Premises at full replacement value; provided that Tenant shall be permitted to self-insure plate glass insurance.
(f)Insurance covering all of Tenant’s Improvements and Tenant’s Alterations, in an amount not less than their full replacement value from time to time, including replacement cost endorsement, providing protection against any peril included within the classification Fire and Extended Coverage, sprinkler damage, vandalism, malicious mischief and such other additional perils as covered in an “all risks” standard insurance policy. Any policy proceeds shall be used for the repair or replacement of the property damaged or destroyed unless this Lease shall cease and terminate under the provisions of Article 14. (g)Business Interruption Insurance: Commercially reasonable business interruption insurance.
12.2 Restrictions on Use. Tenant shall not use or permit the Premises to be used, nor do or permit any act to be done, which may increase the existing rates of insurance upon the building in which the Premises are located, or which may cause the cancellation of any insurance policy covering the Premises. If any act on the part of Tenant or use of the Premises by Tenant shall cause directly or indirectly any increase of Landlord’s insurance expense, the additional expense shall be paid by Tenant to Landlord upon demand. Such payment by Tenant shall not limit Landlord in the exercise of any other rights or remedies. Tenant shall not sell or permit to be kept, used or sold in or about the Premises any article which may be prohibited by California Standard Forms of fire insurance policies. Tenant, at Tenant’s sole expense, shall comply with any and all requirements pertaining to the use of the Premises, of any insurance organization or company, which compliance may be necessary for maintenance of reasonable fire, extended coverage, public liability, and other insurance upon the Premises.
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12.3 Additional Insureds. Landlord shall be named as an additional insured on Tenant’s liability and property policies. Said policies shall be issued by an insurer rated in Best’s Insurance Guide with a financial rating of A+ VII or better. If commercially available, said policies shall provide that the insurance coverage shall not be cancelled or reduced by the insurance carrier without Landlord having been given thirty (30) days’ prior written notice thereof by such carrier. Tenant shall not cancel or reduce said insurance coverage.
12.4 Certificate(s) of Insurance. At all times during the term of this Lease and prior to taking possession of the Premises, Tenant shall maintain on file with Landlord a certificate of insurance issued by the insurance carrier or carriers and showing that the aforesaid insurance policies are in effect in the amounts above provided and if requested by Landlord, a copy of each insurance policy. Notwithstanding any other provision to the contrary contained in this Lease, Tenant shall not have the right to take possession of the Premises until such certificate or certificates and insurance policies are filed with the City.
12.5 Landlord Cure Right. If Tenant does not keep the insurance required by this Lease in full force and effect, Landlord may obtain the necessary insurance and pay the premium thereon, and the repayment thereof shall be paid by Tenant as additional rent within ten (10) days after written demand by Landlord.
12.6 Waiver of Subrogation. Tenant’s insurance shall be primary to coverage available to Landlord. Tenant hereby waives any rights of subrogation against the Landlord.
12.7 Indemnity. “Landlord” for the purposes of this Article 12 shall mean and include Landlord, and its councilmembers, officers, agents and employees. To the fullest extent permitted by law, Tenant covenants with Landlord that Landlord shall not be liable for any damage or liability of any kind or for any injury to or death of persons or damage to property of Tenant or any other person from any cause whatsoever related to the use, occupancy or enjoyment of the Premises by Tenant or any person thereon or holding under Tenant. Tenant shall pay for, defend (with an attorney reasonably approved by Landlord), indemnify, and save Landlord harmless against and from any real or alleged damage or injury and from all claims, judgments, liabilities, losses, costs and expenses, including reasonable attorneys’ fees and costs, arising out of or connected with Tenant’s use of the Premises and its facilities, or any repairs, Alterations or improvements (including original improvements and fixtures specified as Tenant’s Initial Improvements) which Tenant may make or cause to be made upon the Premises, any breach of this Lease by Tenant. The obligations to indemnify set forth in this Article shall include all reasonable attorneys’ fees, litigation costs, investigation costs and court costs and all other costs, expenses and liabilities incurred by the indemnified party from the first notice that any claim or demand is to be made or may be made. All obligations under this Article shall survive the expiration or termination of this Lease.
ARTICLE 13
DAMAGE
13.1 Insured Casualty. In the case of damage by fire or other perils covered by insurance, the following provisions shall apply:
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(a) Within a period of sixty (60) days after all applicable permits have been obtained (which permits Landlord shall promptly apply for and diligently seek) and delivery of insurance proceeds to Landlord, Landlord shall commence such repair, reconstruction and restoration of the Premises to the extent they have been affected by fire or other casualty, and shall diligently prosecute the same to completion; provided, however, that Tenant, at its cost, shall repair and restore all items of Tenant’s Initial Improvements and Tenant’s Alterations and replace its stock in trade, trade fixtures, furniture, furnishings and equipment. Tenant shall commence this work promptly upon delivery of possession of the Premises to Tenant and shall diligently prosecute same to completion.
(b) Notwithstanding the foregoing, if destruction of the Premises occurs the Term and the estimated time to repair the Premise is more than 90 days, Landlord and Tenant shall each have the right to terminate this Lease. In each case of a termination under this Article, the termination right shall be exercised by the terminating party giving written notice to the other party within thirty (30) days after the date of destruction, provided that Tenant shall not have the right to terminate unless all insurance proceeds are delivered to Landlord. (c) If, prior to the commencement of any repair or restoration work, it is estimated (which estimate shall be delivered to both Landlord and Tenant in a written notice) by an independent and reputable contractor selected by Landlord that the damage to the Premises cannot reasonably be completed within 90 days after the date of damage and delivery of insurance proceeds, then each party shall have the right to terminate the Lease within thirty (30) days after receiving such written estimate provided that such party (and its agents, employees and contractors) did not cause the damage.
13.2 Uninsured Casualty. If the Premises or the Premises is materially damaged as a result of any casualty not covered by the insurance specified in Section 12.4 and not caused by Landlord, then Tenant shall, within ninety (90) days following the date of such damage, commence repair, reconstruction or restoration of the Premises and shall diligently prosecute the same to completion, or Landlord may elect within said ninety (90) days not to so repair, reconstruct or restore the damaged property, in which event, at Landlord’s option, this Lease shall cease and terminate upon the expiration of such ninety (90) day period. In the event Landlord elects to restore the Premises, Tenant shall have the same repair, restoration and replacement obligations as to its improvements and Alterations as it has pursuant to Section 13.1.
13.3 Abatement. Rent payable hereunder shall be abated (i) to the extent it is not payable by Tenant’s insurance (such as Business Interruption insurance); and then (ii) proportionately with the degree to which Tenant’s use of the Premises is impaired from the time of the occurrence of the casualty until the date on which Tenant again operates its business in the Premises provided however that neither Tenant nor its agents, employees or contractors caused the damage.
13.4 Waiver of Termination. Tenant waives any statutory rights of termination which may arise by reason of any partial or total destruction of the Premises.
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ARTICLE 14
EMINENT DOMAIN
14.1 Taking. The term “Taking”, as used in this Article 14, shall mean an appropriation or taking under the power of eminent domain by any public or quasi-public authority or a voluntary sale or conveyance in lieu of condemnation but under threat of condemnation.
14.2 Total Taking. In the event of a Taking of the entire Premises, this Lease shall terminate and expire as of the date possession is delivered to the condemning authority and Landlord and Tenant shall each be released from any liability accruing pursuant to this Lease after the date of such termination.
14.3 Partial Taking. If there is a Taking of a material portion of the Premises and, regardless of the amount taken, the Premises is not, in Tenant’s sole but reasonable business judgment, suitable for the continued operation of Tenant’s business, then Tenant may terminate this Lease, upon giving notice in writing of such election to Landlord within thirty (30) days after receipt by Tenant from Landlord of written notice that a portion of the Premises has been so appropriated or taken. In each case, the termination of this Lease shall be effective as of the date Tenant is required to vacate all or a portion of the Premises.
14.4 Award. The entire award or compensation in any such condemnation proceeding, whether for a total or partial Taking, or for diminution in the value of the leasehold or for the fee, shall belong to and be the property of Landlord. Without derogating the rights of Landlord under the preceding sentence, Tenant shall be entitled to recover from the condemning authority such compensation as may be separately awarded by the condemning authority to Tenant or recoverable from the condemning authority by Tenant in its own right and separately allocated to the taking of trade fixtures and equipment owned by Tenant, the expense of removing and relocating Tenant’s trade fixtures and equipment, interruption or damage to Tenants’ business, the value of Tenant’s leasehold estate, or the unamortized cost of Tenant improvements paid for by Tenant.
14.5 Continuation of Lease. In the event of a Taking, if Landlord and Tenant elect not to terminate this Lease as provided above (or have no right to so terminate), Landlord agrees, at Landlord’s cost and expense as soon as reasonably possible after the Taking, to restore the Premises necessary for Tenant to reasonably operate from the Premises (to the extent of the condemnation proceeds) on the land remaining to a complete unit of like quality and character as existed prior to the Taking and, thereafter, Rent payable by Tenant hereunder shall be reduced on an equitable basis, taking into account the relative value of the portion taken as compared to the portion remaining, and Landlord shall be entitled to receive the total award or compensation in such proceedings.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
15.1 Assignment. Tenant shall not assign, change ownership or voting control, mortgage, encumber, pledge, hypothecate or otherwise transfer (including any transfer by operation of law)
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all or any part of this Lease or the Premises (collectively “Transfer”) without first procuring the written consent of Landlord in Landlord’s sole and absolute discretion. A sale of twenty-five percent (25%) or more of the ownership interests in Tenant, whether in one transaction or a related series of transactions, shall constitute an assignment of this Lease. If Tenant requests Landlord’s consent to an assignment of this Lease, Tenant shall submit to Landlord, in writing, the name of the proposed assignee.
15.2 Procedures. Should Tenant desire to enter into a Transfer, Tenant shall request, in writing, Landlord’s consent to the proposed Transfer at least forty-five (45) days before the intended effective date of the proposed Transfer, which request shall include any information reasonably requested by Landlord to evaluate the proposed Transfer. A consent to one (1) Transfer by Landlord shall not be deemed to be a consent to any subsequent Transfer to any other party.
15.3 Standard for Consent After Tenant Event of Default. For purposes of Landlord’s consent after an Event of Default by Tenant and Landlord’s election to keep this Lease in effect, Tenant agrees that Landlord may only refuse its consent to the proposed transfer on reasonable grounds, and (by way of example and without limitation) Tenant agrees that it shall be reasonable for Landlord to withhold its consent if any of the following situations exist or may exist: (a) the proposed transferee’s financial condition, net worth or liquidity is less than the financial condition, net worth or liquidity of Tenant as of the date of the request for transfer or is inadequate to support all of the financial and other obligations of Tenant under this Lease; (b) the business reputation or character of the proposed transferee is not reasonably acceptable to Landlord; or (c) the proposed transferee is not likely to conduct on the Premises a business of a quality commensurate with the neighborhood.
15.4 No Release; Form. No Transfer whether with or without Landlord’s consent, shall relieve Tenant from its covenants and obligations under this Lease. Any Transfer shall be evidenced by an instrument in form and content satisfactory to Landlord and executed by Tenant and the Transferee.
15.5 Sublease. Tenant may sublease portions of the Premises (but not the entirety of the Premises) and may grant licenses and concessions, all subject to Landlord’s consent, as long as the any use or occupancy of the Premises is in accordance with Section 1.9. No sublease, license or concession whether with or without Landlord’s consent, shall relieve Tenant from its covenants and obligations under this Lease. Any sublease, license or concession shall be evidenced by an instrument signed by the Parties. If Tenant requests Landlord’s consent to subletting of all or part of the Premises, Tenant shall submit to Landlord, in writing, the name of the proposed subtenant. If for any reason this Lease is terminated, the Parties agree the termination will result in a termination of any sublet, license or concession within the Premises authorized by Landlord and Tenant shall include such a provision in any agreement with a subleasee licensee or concessionaire.
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ARTICLE 16
DEFAULTS
16.1 Events of Default. The occurrence of any one or more of the following events shall constitute an “Event of Default” by Tenant under this Lease:
(i) failure to make any payment to Landlord required hereunder, , or failure to deliver the Security Deposit within five (5) days after written notice from Landlord to Tenant; (ii) failure to perform any other of the promises, covenants or agreements of Tenant contained in this Lease for more than thirty (30) days after written notice from Landlord (provided, however, if the default cannot be rectified or cured within such thirty (30) day period, the default shall be deemed to be rectified or cured if Tenant, within such thirty (30) day period, shall have commenced to rectify or cure the default and shall thereafter diligently and continuously prosecute same to completion);
(iii) an assignment or subletting by Tenant without Landlord’s prior written consent when such consent is required by this Lease; or (iv) failure to maintain the insurance required of Tenant under this Lease.
16.2 Landlord Remedies. Any notice required to be given by Landlord above shall be in lieu of, and not in addition to, any notice required under Section 1161 of the Code of Civil Procedure of California or any similar, superseding statute. Upon the occurrence of an Event of Default by Tenant, Landlord may elect to terminate this Lease and to re-enter and take possession of the Premises and remove all persons therefrom, and/or exercise all or any of the rights and remedies afforded Landlord by California law including, but not limited to, the remedies provided under California Civil Code Sections 1951.2 or 1951.4. Pursuant to California Civil Code Section 1951.2, the damages Landlord may recover against Tenant include, but are not limited to, the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award, exceeds the amount of such rental loss for the same period that the Tenant proves could be reasonably avoided. Pursuant to California Civil Code Section 1951.4, Landlord may continue this Lease in effect after Tenant’s breach of this Lease and abandonment of the Premises and recover rent as it becomes due, if Tenant has the right to sublet the Premises or assign this Lease, subject only to reasonable limitations. Landlord hereby agrees that in the event Landlord elects the remedy under California Civil Code Section 1951.4, Landlord will not unreasonably withhold its consent to assignment and subletting by Tenant, and Article 15.3 shall apply.
16.3 Default by Landlord. Landlord shall not be in default hereunder unless Landlord fails to perform the obligations required of Landlord within thirty (30) days after written notice by Tenant to Landlord specifying wherein Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord’s obligation is such that more than thirty (30) days are required for performance, then Landlord shall not be in default if Landlord commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. Notwithstanding any contrary provision contained in this Lease, Landlord shall not be liable under any circumstances for any indirect or consequential damages or any injury or
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damage to, or interference with, Tenant’s business, including, but not limited to, loss of profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use; provided, that the foregoing is not intended to be a waiver by Tenant of any rights it may have to condemnation awards in the event of a condemnation by Landlord of Tenant’s interest under this Lease or Tenant’s business.
ARTICLE 17
SUBORDINATION, ATTORNMENT AND ESTOPPEL CERTIFICATES
17.1 Subordination. So long as the lienholder agrees in writing to be bound by the obligations of the Landlord arising after the lienholder acquires title to the Premises, and provided such lienholder also executes a commercially reasonable non-disturbance agreement in favor of the Tenant, then upon written request of Landlord, Landlord’s mortgagee, or the beneficiary of a deed of trust of Landlord or a lessor of Landlord, Tenant will subordinate its rights pursuant to this Lease in writing to the lien of any mortgage, deed of trust or the interest of any lease in which Landlord is the lessee and to all advances made or hereafter to be made upon the security thereof.
17.2 Attornment. In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any mortgage or deed of trust made by Landlord encumbering the Premises, or should a lease in which Landlord is the lessee be terminated, Tenant shall upon the request of the purchaser or lessor attorn to the purchaser or lessor under such lease upon any foreclosure, sale or lease termination and recognize the purchaser or lessor as Landlord under this Lease, provided that the purchaser or lessor shall acquire and accept the Premises subject to this Lease.
17.3 Estoppel Certificates. Upon not less than ten (10) days prior notice from Landlord or Tenant to the other, Landlord or Tenant, as the case maybe shall execute, acknowledge and deliver to the requesting party, a reasonable estoppel certificate certifying that this Lease is unmodified and in full force and effect and that the other party is not in default (or stating how any of the foregoing is not true) and certifying the dates to which rental or other sums due hereunder have been paid in advance (“Estoppel Certificate”).
17.4 Subordination of Landlord’s Liens. Landlord hereby subordinates all statutory and contractual landlord’s liens to any liens or security interests covering Tenant’s inventory, or financed fixtures, furniture or equipment of Tenant in favor of bona-fide third-party lenders providing financing to Tenant (including purchase-money financing). Additionally, Tenant shall be permitted to remove personal property from the Premises without Landlord’s consent (free and clear of any landlord’s liens) whenever Tenant has not previously received from Landlord a written notice of default which remains uncured.
ARTICLE 18
MATTERS OF RECORD
Tenant agrees that it and all persons in possession or holding under it will conform to and will not violate the terms of any covenants, conditions, restrictions, easements and any other
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matters currently of record. Tenant acknowledges that Tenant has had an opportunity to obtain and review a title report and title exception documents from a title insurance company selected by Tenant.
ARTICLE 19
UTILITIES AND SERVICES
Tenant shall pay directly to the appropriate utility company all charges for utility services supplied to Tenant. If no such (sub)meter exists, then Tenant shall reimburse Landlord within ten (10) days after written demand from time to time for Tenant’s share utility charges allocable to the Premises. In that regard, Tenant is responsible for directly contracting utility services including, but not limited to those shown in the table below.
Service Responsible Party for Directly Contracting
Electric Utility Tenant
Water/Sewer Utility Tenant
Gas Utility Tenant
Trash Pickup Services Tenant
Fire and Life Safety Monitoring Tenant
In addition, Tenant, at Tenant’s expense, will cause the Premises to be treated for termites, rodents, and other pests and vermin as often as Landlord considers reasonably necessary.
Regardless of the entity which supplies any of the utility services, Landlord shall not be liable for any failure or interruption of any utility or service. Except as otherwise provided herein, no failure or interruption of any utility or service shall entitle Tenant to terminate this Lease or discontinue making payments of Rent payable by Tenant under this Lease; provided, however, that Landlord shall use good faith efforts to restore such service to the extent the restoration of the same is not the obligation of Tenant, the utility company or other third party.
ARTICLE 20
MISCELLANEOUS
20.1 Hazardous Materials. During the Term of this Lease, Tenant, at its sole cost and expense, shall comply with all laws relating to the storage, use, handling and disposal of hazardous, toxic or radioactive matter, including, without limitation, petroleum products, asbestos, and those materials identified in Sections 66680 and 66685 of Title 22 of the California Administrative Code, Division 4, Chapter 30 (“Title 22”), as amended from time to time (collectively, “Hazardous Materials”); provided, however, that the foregoing shall not apply to Hazardous Materials in, on or surrounding the Premises not released by Tenant or its contractors, employees, agents or customers. Tenant shall notify Landlord and provide to Landlord a copy or copies of any environmental entitlements or inquiries related to the Premises. The clean-up and disposal of any Hazardous Materials released onto or about the Premises by Tenant or its agents,
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contractors or employees shall be performed by Tenant at Tenant’s sole cost and expense and shall be performed in accordance with all applicable laws, rules, regulations and ordinances, pursuant to a site assessment and removal/remediation plan prepared by a licensed and qualified geotechnical engineer and submitted to and approved in writing by Landlord prior to the commencement of any work. The foregoing notwithstanding, Landlord in Landlord’s sole and absolute discretion may elect, by written notice to Tenant, to perform the clean-up and disposal of such Hazardous Materials from the Premises. In such event, Tenant shall pay to Landlord the actual cost of same upon receipt from Landlord of Landlord’s written invoice therefor.
Notwithstanding any other term or provision of this Lease, Tenant shall permit Landlord or Landlord’s agents or employees to enter the Premises at any time, upon at least one (1) business days’ notice, to inspect, monitor and/or take emergency or long-term remedial action with respect to Hazardous Materials on or affecting the Premises or to discharge Tenant’s obligations hereunder with respect to such Hazardous Materials when Tenant has failed, after demand by Landlord, to do so. All costs and expenses incurred by Landlord in connection with performing Tenant’s obligations hereunder shall be reimbursed by Tenant to Landlord within thirty (30) days of Tenant’s receipt of written request therefor.
Tenant shall defend, indemnify, and hold Landlord harmless from and against any and all claims, liabilities, losses, costs, and expenses (including, without limitation reasonable attorneys’ fees) incurred or suffered by Landlord as a result of Tenant’s or its invitees’, licensees’, contractors’, agents’ or employees’ storage, use, handling, disposal or release of Hazardous Materials in or about the Premises or the Premises.
20.2 Notices. Every notice, demand or request (collectively “Notice”) required hereunder or by law to be given by either party to the other shall be in writing. Notices shall be given by United States certified mail, postage prepaid, return receipt requested, or by same-day or overnight private courier, addressed to the party to be served at the address indicated in Section
1.11 or such other address as the party to be served may from time to time designate in a Notice to the other party. The delivery of a Notice shall be deemed made within 3 days after deposit into the U.S. mail with respect to certified mail or within 1 business day after deposit with an overnight private courier for overnight delivery. Copies of any Notice shall be sent to the addresses, if any, designated for service of copies of Notices in Section 1.11.
20.3 Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes therefor, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, and other causes (except financial) beyond the reasonable control of the party obligated to perform, shall excuse the performance by that party for a period equal to the prevention, delay or stoppage; however, this Section shall not be applied to delay the payment by Tenant of payments required of Tenant under this Lease.
20.4 Surrender. At the expiration or any earlier termination of the Term, Tenant shall peaceably and quietly surrender to Landlord the possession of the Premises and all improvements and fixtures installed or constructed by or for Tenant thereon free and clear of all claims to or against them by Tenant or any third person or party. Tenant shall leave the surrendered property in good, safe and broom-clean condition. All property that Tenant is
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required to surrender shall become Landlord’s property at termination of this Lease, or, if Landlord so elects and upon written notice to Tenant, shall be demolished and removed by Tenant at Tenant’s sole expense, and all property that Tenant is not required to surrender but that Tenant does not remove shall become Landlord’s property at termination of this Lease, or, if Landlord so elects and upon written notice to Tenant, shall be demolished and removed by Tenant at Tenant’s sole expense. If Tenant fails to surrender the Property at the expiration or earlier termination of this Lease, Tenant shall defend and indemnify Landlord from all liability and expense resulting from the delay or failure to surrender, including claims made by any succeeding tenant or any purchaser or prospective purchaser founded on or resulting from Tenant’s failure to surrender.
20.5 Miscellaneous Provisions.
(a) It is understood that there are no oral or written agreements or representations between the parties hereto affecting this Lease and this Lease supersedes and cancels any and all previous negotiations, arrangements, representations, brochures, agreements and understandings, if any, between Landlord and Tenant. No provision of this Lease may be amended except by an agreement in writing signed by Landlord and Tenant,
(b) Subject to the terms of this Lease, all rights and obligations of Landlord and Tenant under this Lease shall extend to and bind the respective heirs, executors, administrators and the permitted concessionaires, successors, subtenants and assignees of the parties. (c) Any waiver by either party of a breach by the other party of a covenant of this Lease shall not be construed as a waiver of a subsequent breach of the same covenant. (d) Except where another rate of interest is specifically provided for in this Lease, any amount due from either party to the other under this Lease which is not paid when due, shall bear interest at the rate per annum (“Interest Rate”) equal to the prime interest rate published from time to time by the Wall Street Journal plus two (2) percentage points (but in no event to exceed the maximum lawful rate) from the date such amount was originally due to and including the date of payment.
(e) If Tenant or Landlord is a municipal corporation, corporation, partnership or limited liability company, each individual executing this Lease on behalf of the municipal corporation, corporation, partnership or limited liability company (in his/her representative capacity only) represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of the municipal corporation, corporation, partnership or limited liability company and that this Lease is binding upon the municipal corporation, corporation, partnership or limited liability company.
(f) This Lease shall be governed by and construed in accordance with the laws of the State of California without giving effect to the choice of law provisions thereof. (g) Tenant waives any and all rights of redemption granted under any present and future laws in the event Landlord obtains the right to possession of the Premises by reason of the violation by Tenant of any of the covenants and conditions of this Lease or otherwise.
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(h) In the event that, at any time after the Effective Date of this Lease, either Landlord or Tenant shall institute any action or proceeding against the other relating to the provisions of this Lease or any default hereunder, the party not prevailing in such action or proceeding shall reimburse the prevailing party for its actual attorneys’ fees, and all fees, costs and expenses incurred in connection with such action or proceeding, including, without limitation, any post-judgment fees, costs or expenses incurred on any appeal or in collection of any judgment.
(i) Tenant shall observe faithfully and comply with, and shall cause its employees and invitees to observe faithfully and comply with, reasonable and nondiscriminatory rules and regulations governing the Premises as may from time to time be promulgated by Landlord. (j) Should Landlord sell, exchange or assign this Lease (other than a conditional assignment as security for a loan), then Landlord, as transferor, shall be relieved of any and all obligations on the part of Landlord accruing under this Lease from and after the date of such transfer provided that Landlord’s successor in interest shall assume such obligations from and after such date. Written notice of any such transfer shall be given to Tenant. (k) Notwithstanding anything contained in this Lease to the contrary, it is expressly understood and agreed that any judgment against Landlord resulting from any default or other claim under this Lease shall be satisfied only out of the net rents, issues, profits and other income actually received from the operation or sale of the Premises, and Tenant shall have no claim against Landlord or any of Landlord’s personal assets for satisfaction of any judgment with respect to this Lease.
(l) If any part of the Premises is at any time subject to a first mortgage or a first deed of trust, and this Lease or the rentals due from Tenant hereunder are assigned by Landlord to a mortgagee, trustee or beneficiary (“Assignee” for purposes of this clause (l) only) and Tenant is given written notice of the assignment including the post office address of Assignee, then Tenant shall also give written notice of any default by Landlord to Assignee, specifying the default in reasonable detail and affording Assignee the same amount of time as provided in this Lease for Landlord (starting from the date Assignee receives such notice) to make performance for and on behalf of Landlord. If and when Assignee has made performance on behalf of Landlord, the default shall be deemed cured.
(m) Tenant shall pay all costs for work performed by or on account of it and shall keep the Premises free and clear of mechanics’ liens or any other liens or stop notices. Tenant shall give Landlord immediate notice of any lien or stop notice filed against the Premises as a result of any work of improvement performed by or on behalf of Tenant. Tenant shall immediately cause any lien or stop notice to be discharged or removed of record by either paying the amount thereof or recording a statutory lien release bond in an amount equal to one hundred fifty percent (150%) of the amount of said lien or stop notice, or such other amount as may be adequate to cause the lien or stop notice to be released as an encumbrance against the Premises. (n) Landlord and Tenant each represents and warrants that it has not had any dealings with any realtors, brokers or agents in connection with the negotiation of this Lease. Tenant shall defend, indemnify and hold the other harmless from any claims, costs, expenses or liabilities for
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any compensation, commission or charges to other realtors, brokers or agents claiming by, through or on behalf of Landlord or Tenant, as the case may be, with respect to this Lease and/or the negotiation hereof.
(o) All of the exhibits referenced in this Lease are incorporated herein by this reference.
(p) Notwithstanding anything contained in this Lease to the contrary, Tenant acknowledges that Landlord is acting in its proprietary capacity, is entering into and complying with this Lease, and that nothing contained in this Lease shall require Landlord, in its capacity as a governmental entity, to act in any predetermined manner in connection with its actions as a governmental entity, as opposed to its actions as a contracting party pursuant to this Lease. (q) Provided an Event of Default by Tenant does not occur, Tenant shall have the right of quiet enjoyment of the Premises free from interference by Landlord or by any person or entity claiming rights granted by Landlord.
(r) If any provision of this Lease is held or adjudicated to be invalid or unenforceable for any reason, each such portion or provision shall be severed from the remaining portions or provisions of this Lease and the remaining portions or provisions shall be unaffected and remain in full force and effect.
(s) Concurrently with the execution and delivery of this Lease, Tenant shall also execute, acknowledge and deliver to Landlord a Memorandum of Lease in the form attached hereto as Exhibit “C” for recording. Tenant shall not record this Lease, any notice of other memorandum of this Lease. Upon the expiration or any earlier termination of this Lease, Tenant shall execute, acknowledge and deliver to Landlord a termination of such recorded Memorandum of Lease and/or quitclaim deed in the form prepared by Landlord and submitted to Tenant.
20.6 No Relocation Assistance. Tenant acknowledges that Tenant may be displaced from the Premises, but Tenant hereby agrees that Landlord shall have no obligation to Tenant under the California Relocation Assistance and Real Premises Acquisition statutes and guidelines. Tenant, after diligent review and consideration of possible impacts, hereby waives and forever releases Landlord, including its successors, officers, employees, attorneys, agents, representatives and anyone else acting on Landlord’s behalf, of and from any and all claims, demands, actions or causes of action, obligations, liabilities, or claims for further compensation, known or unknown, based upon or relating to the California Relocation Assistance and Real Premises Acquisition statutes and guidelines and Landlord’s subsequent use and development of the Premises, or Tenant’s displacement therefrom. By such release, Tenant expressly waives its rights, if any, under California Civil Code Section 1542 which provides:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” Tenant’s Initials:
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease on the day and year first above written.
LANDLORD:
CITY OF INDIO
By:
Bryan H. Montgomery, City Manager
ATTEST:
Cynthia Hernandez, City Clerk
APPROVED AS TO FORM:
_____________________________________
Roxanne Diaz, City Attorney
TENANT:
AVENIDA MUSIC, LLC, a California limited
liability company____________________________,
By: _____________________________
Print Name: ________________________
Title: _____________________________
Email address: ___________________________
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EXHIBIT “A”
LEGAL DESCRIPTION OR DIAGRAM OF LAND
APN 611-172-001
(Attached.)
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EXHIBIT “B”
SCOPE OF TENANT IMPROVEMENTS
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EXHIBIT “C”
FORM OF MEMORANDUM OF LEASE
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RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
City of Indio
100 Civic Center Mall
Indio, CA 92201
Attn: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER'S USE
The undersigned declare that this Memorandum of Lease is exempt from Recording Fees pursuant to California Government Code Section 27383 and exempt from Documentary Transfer Tax pursuant to California Revenue and Taxation Code Section 11922.
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE (this “Memorandum”) is dated as of January 31, 2022, and is entered into by and between Avenida Music, LLC, a California limited liability company(“Tenant”), and the CITY OF INDIO (“Landlord”).
RECITALS
A. Tenant and Landlord have entered into that certain Building Lease dated March ___, 2022 (the “Lease”), pursuant to which Landlord has agreed to lease and demise to Tenant, and Tenant has agreed to lease and accept from Landlord that certain building located in the City of Indio commonly known as 82-707 Miles Avenue (the “Premises”) . The Premises are more particularly described in the Lease.
B. Landlord and Tenant now desire to enter into this Memorandum to comply with applicable law requiring that municipal leases be recorded.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Tenant and City agree as follows:
1. Lease. Landlord hereby leases and demises the Premises to Tenant, and Tenant hereby leases and accepts the Premises from Landlord for a three year term at the rental rates and upon the other terms and conditions set forth in the Lease, which are incorporated herein by this reference.
2. Purpose. This Memorandum is prepared for the purposes of recordation only and in no way modifies the terms and conditions of the Lease. In the event any provision of this Memorandum is inconsistent with any term or condition of the Lease, the term or condition of the Lease shall prevail.
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3. Counterparts. This Memorandum may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease as of the date first written above.
LANDLORD: TENANT:
CITY OF INDIO
By:
Print Name: Bryan H. Montgomery
Title: City Manager
Avenida Music, LLC, a California limited liability
company
By: ___________________________
Print Name: ___________________
Title: ________________________
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State of California )
County of _________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
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State of California )
County of ______________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
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EXHIBIT “D”
NOTICE OF LEASE TERM DATES
To:
_____________
_____________
Re: Building Lease dated March ___, 2022 between the City of Indio (“Landlord”), and Avenida Music, LLC, a California limited liability company (“Tenant”) for Premises located at 82-707 Miles Avenue, Indio, California.
Ladies and Gentlemen:
In accordance with the above-referenced Building Lease (the “Lease”), we wish to advise you and/or confirm as follows:
1. Landlord delivered possession of the Premises on _______.
2. The Term Commencement Date is _______.
3. The Term shall end on _______.
5. Your rent checks should be made payable to City of Indio at 100 Civic Center Mall, Indio, CA 92201, Attn: Finance Department.
Landlord:
CITY OF INDIO
______________________________
Bryan H. Montgomery, City Manager
Agreed and Accepted as of
____________, 2022
Tenant: Avenida Music, LLC ___________________
By:_______________________
Print Name:_________________
Title:______________________
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Tenant Improvements
Installation of Panic Doors (Front and Back)
- Parts, labor, and installation $20,000
Addition of Second ADA Restroom
- Fixtures, plumbing, and $25,000
Upgrade electrical panels and install new conduit
- parts, labor, and $30,000
Install drains and sinks for Coffee bar and 2nd
Restroom
- Concrete cut, drain install, 3 comp sink install. $35,000 Total $110,000
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City Council
April 6, 2022
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Reymundo Trejo, P.E., IWA General Manager
Subject: Professional Services Agreement with Michael Baker International Inc. in the amount of $312,798 and a 10% contingency in the amount of $31,280 to provide engineering consulting services for design and bid package for the replacement of Plant No. 2 Booster Pump Station.
RECOMMENDATION:
That the City Council/IWA Board approve a Professional Services Agreement with Michael Baker International Inc. in the amount of $312,798 and a 10% contingency in the amount of $31,280 that could be authorized by the City Manager/Executive Director to provide engineering consulting services for design and bid package for the replacement of Plant No. 2 Booster Pump Station.
SUMMARY:
In 2019, IWA completed the City’s Water Master Plan. The Water Master Plan recommended the replacement of Plant No. 2 Booster Pump Station due to facility age and seismic code deficiencies.
In October 2021, IWA released a Request for Proposals for professi onal design services. IWA received two proposals and selected Michael Baker International Inc. based on qualifications and lowest fee proposal to complete the design services. Staff recommends the award of design services contract to Michael Baker International Inc.
BACKGROUND INFORMATION:
In 2019, IWA completed the City’s Water Master Plan that recommended the replacement of Plant No. 2 Booster Pump Station located west of the intersection of Monroe Street and Crown Way. On August 2021, IWA completed a c ondition assessment of the booster pump station, and determined that the facility has reached its useful life and requires seismic code upgrades.
IWA issued a design services Request for Proposals (“RFP”) titled “Consulting Services for Upgrades to IWA Plant No.2”. On December 15, 2021, IWA received two (2) proposals for the project. IWA’s selection committee unanimously selected Michael Baker International Inc. as the most qualified consultant to provide the recommended design services. Staff recommends approval of the services contract with Michael Baker International Inc. for the amount not to exceed $344,078.
FINANCIAL DETAIL:
Current FY Financial
Impact:
$68,000 In current year budget: Yes
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Fund Impact:
0 Budget adjustment: No
Future FY Financial
Impact:
$276,078 For fiscal year: 21/22
Source of funds: Account number: 812-554-002
ALTERNATIVES:
1. Reject all proposals
2. Request additional information
ATTACHMENTS:
Attachment 1 - Professional Services Agreement
APPROVAL(S):
Reymundo Trejo, P.E., IWA General Manager Approved - 23 Mar 2022 Lolly Enriquez, Assistant City Attorney Approved - 23 Mar 2022 Brian Kinder, Finance Manager Approved - 25 Mar 2022
Bryan H. Montgomery, City Manager Approved - 25 Mar 2022
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AGREEMENT FOR PROFESSIONAL SERVICES
Section 2. Term of Agreement . This Agreement shall commence on ___________ and shall terminate on ____________, unless sooner terminated by the Authority.
Section 3. Time of Performance. Consultant shall commence its services under t his Agreement upon receipt of a written notice to proceed from Authority in the manner described in Exhibit A. Consultant shall complete the services in conformance with the timeline set forth in Exhibit A.
Section 4. Compensation.
(a) Authority agrees to compensate Consultant, and Consultant agrees to accept in full satisfaction for the services required by this Agreement, __________________, as more particularly described in Exhibit B (“Consideration”). Said Consideration shall constitute reimbursement of Contactor’s fee for the services as well as the actual cost of any staff time, other direct or indirect costs or fees, including the work of employees, consultants and subcontractors, equipment, materials, and supplies necessary to provide the service (including all labor, materials, delivery, tax, assembly, and installation, as applicable). In no event shall the Consultant be paid more than $___________ (which includes expenses and additional services (if any) during the term of this Agreement.
(b) Unless expressly provided for in Exhibit B, Consultant shall not be entitled to reimbursement for any expenses. Any expenses incurred by Consultant which are not expressly authorized by this Agreement will not be reimbursed by Authority. 6 April
4/06/2022
12/31/2024
THIS AGREEMENT is made and entered into on this ____ day of __________, 2022, by and between the Indio Water Authority, a joint powers authority, (“Authority”) and Michael Baker International Inc. ("Consultant”).
RECITALS
A. Authority desires to obtain services that may be reasonably described as follows:
Plant 2 Booster Pump Station Replacement .
B. Consultant represents that it is qualified by virtue of experience, training, education and expertise to provide these services and is able to perform the Scope of Work.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:
Section 1. Consultant’s Scope of Work. Consultant shall perform the Scope of Work described in Exhibit A in a manner satisfactory to Authority and consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions (“Scope or Work” or services).
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(c) Authority may request additional services under this Agreement. All such work, however, must be authorized in writing by the Authority’s General Manager prior to commencement. Consultant shall perform such services, and Authority shall pay for such additional services in accordance with fee schedule set forth in Exhibit B, or as otherwise agreed upon by the parties. Any work incurred by Consultant which is not expressly authorized by this Agreement will not be reimbursed by Authority.
Section 5. Method of Payment . Authority shall pay C onsultant in accord with the schedule of compensation attached hereto, if any, and/or per monthly invoices submitted by Consultant in a form approved by Authority’s Finance Director (“Invoices”). Authority shall review, approve and pay such undisputed amounts on said Invoices within a reasonable time after Authority’s receipt of same.
Section 6. Independent Consultant. The parties agree, understand and acknowledge that Consultant is not an employee of the Authority, but is solely an independent Consultant.
Consultant expressly acknowledges and agrees that Authority has no obligation to pay or withhold state or federal taxes or to provide workers’ compensation or unemployment insurance or other employee benefits and that any person employed by Consultant shall not be in any way an employee of the Authority. As such, Consultant shall have the sole legal responsibility to remit all federal and state income and social security taxes and to provide for his/her own workers c ompensation and unemployment insurance and that of his/her employees or subcontractors. Neither Authority nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as otherwise provided herein. Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of Authority.
Section 7. Assignment. This Agreement shall not be assigned in whole or in part, by Consultant without the prior written approval of Authority. Any attempt by Consultant to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect.
Section 8. Responsible Principal(s)
(a) Consultant’s responsible principal, Momcilo Savovic, P.E., CCM, shall be principally responsible for Consultant ’s obligations under this Agreement and shall serve as principal liaison between Authority and Consultant. Designation of another Responsible Principal by Consultant shall not be made without prior written consent of Authority. (b) Authority’s Responsible Principal shall be Reymundo Trejo P.E. , General Manager who shall administer the terms of the Agreement on behalf of Authority.
Section 9. Personnel. Consultant represents that it has, or shall secure at its own expense, all personnel required to perform Consultant’s Scope of Work under this Agreement.
All personnel engaged in the work shall be qualified to perform such Scope of Work.
Section 10. Permits and Licenses. Consultant shall obtain and maintain during the Agreement term all necessary licenses, permits and certificates required by law for the provision of services under this Agreement, including a business license.
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Section 11. Interests of Consultant. Consultant affirms that it presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Scope of Work contemplated by this Agreement. No person having any such interest shall be employed by or be associated with Consultant.
Section 12. Insurance.
(a) Consultant shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
(1) A policy or policies of Comprehensive General Liability Insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence, combined single limit, against any personal injury, death, loss or damage resulting from the wrongful or negligent acts by Consultant.
(2) A policy or policies of Comprehensive Vehicle Liability Insurance covering personal injury and property damage, with minimum limits of One Million Dollars ($1,000,000) per occurrence combined single limit, covering any vehicle utilized by Consultant in performing the Scope of Work required by this Agreement.
(3) Workers' compensation insurance as required by the State of California. (4) If this box is checked, a policy or policies of Professional Liability Insurance (errors and omissions) with m inimum limits of Two Million Dollars ($2,000,000) per claim and in the aggregate. Any deductibles or self-insured retentions attached to such policy or policies must be declared to and be approved by Authority. Further, Consultant agrees to maintain in full force and effect such insurance for one year after performance of work under this Agreement is completed.
(b) Consultant shall require each of its sub -contactors (if any) to maintain insurance coverage which meets all of the requirements of this Agreement. (c) The Authority’s Risk Manager may, in writing, amend and/or waive the insurance provisions set forth in paragraph (a) herein. In such case, the Consultant shall comply with the insurance provisions required by the Authority’s Risk Manager. (d) The policy or polices required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least a B+;VII in the latest edition of Best's Insurance Guide or by an insurer acceptable to the Authority’s Risk Manager. (e) Consultant agrees that if it does not keep the aforesaid insurance in full force and effect Authority may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, Authority may take out the necessar y insurance and pay, at Consultant's expense, the premium thereon.
(f) At all times during the term of this Agreement, Consultant shall maintain on file with the Authority Clerk a certificate or certificates of insurance on the form approved by the Authority’s Risk Manager, showing that the aforesaid policies are in effect in the required amounts. Consultant shall, prior to commencement of work under this Agreement, file with the Authority Clerk such certificate or certificates. The general liability in surance and vehicle X
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insurance shall contain an endorsement naming the Authority as an additional insured. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thi rty (30) days prior written notice to Authority, and specifically stating that the coverage contained in the policies affords insurance pursuant to the terms and conditions as set forth in this Agreement.
(g) The insurance provided by Consultant shall be primary to any coverage available to Authority. The policies of insurance required by this Agreement shall include provisions for waiver of subrogation.
(h) Any deductibles or self -insured retentions must be declared to and approved by Authority. At the option of Authority, Consultant shall either reduce or eliminate the deductibles or self -insured retentions with respect to Authority, or Consultant shall procure a bond guaranteeing payment of losses and expenses.
Section 13. Indemnification. I n connection with any and all claims, demands, damages, liabilities, losses, costs or expenses, including attorneys’ fees and costs of defense (collectively, “Claims ” hereinafter), Consultant shall defend, hold harmless and indemnify the Authority, and its elected officials, officers, employees, servants, designated volunteers, and those Authority agents serving as independent Consultants in the role of Authority officials (collectively, “Indemnitees”), Indemnitees with respect to any and all Claims, including but not limited to, Claims relating to death or injury to any person and injury to any property, which arise out of, pertain to, or relate to the acts or omissions of Consultant or any of its officers, employees, subcontractors, or agents in connection with the performance of this Agreement , including without limitation the payment of all consequential damages, attorneys’ fees, and other related costs and expenses. With respect such Claims, Consultant shall defend Authority, with counsel of Authority’s choice, at Consultant’s own cost, expense, and risk and shall pay and satisfy any judgment, award, or decree that may be rendered against Authority. Consultant shall reimburse Authority for any and all legal expenses and costs actually incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant or Authority. All duties of Consultant under this Section shal l survive termination of this Agreement.
Section 14. Termination.
(a) Authority shall have the right to terminate this Agreement for any reason or for no reason upon fifteen calendar days' written notice to Consultant. Consultant agrees to cease all work under this Agreement on or before the effective date of such notice. (b) In the event of termination or cancellation of this Agreement by Authority, due to no fault or failure of performance by Consultant, Consultant shall be paid based on the percentage of work satisfactorily performed at the time of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement. Consultant shall have no other claim against Authority by reason of such termination, including any claim for compensation.
Upon termination, Consultant shall provide to Authority any and all Documents, whether in draft or final form, prepared by Consultant as of the date of termination. Consultant may not terminate this Agreement except for Authority’s non -payment upon an Invoice within sixty (60) days of Authority’s receipt thereof.
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Section 15. Authority’s Responsibility. Authority shall provide Consultant with all pertinent data, documents, and other requested information as is available for the proper performance of Consultant’s Scope of Work.
Section 16. Information and Documents. All documents, data, studies, surveys, drawings, maps, models, photographs, presentations, records and reports prepared for Authority in connection with this Agreement (“Documents”) shall become the property of Authority, and Authority may use all or any portion of the work submitted by Consultant pursuant to this Agreement as Authority deems appropriate. Consultant may, however, make and retain such copies of said Documents, as Consultant may desire.
Section 17. Changes in the Scope of Work. Authority shall have the right to order, in writing, changes in the scope of work or the services to be performed. Any changes in the scope of work requested by Consultant must be made in writing and approved by both parties.
Section 18. Notice. Any notices, bills, invoices, etc. required by this Agreement shall be deemed received on ( a) the day of delivery if delivered by hand during the receiving party's regular business hours or by facsimile before or during the receiving party's regular business hours; or (b) on the second business day following deposit in the United States mail, po stage prepaid to the addresses set forth below, or to such other addresses as the parties may, from time to time, designate in writing pursuant to this section.
If to Authority:
Authority General Manager
83101 Avenue 45
Indio, CA 92201
If to Consultant:
Michael Baker International
Momcilo “Momo” Savovic, P.E., CCM
75-410 Gerald Ford Drive, Suite 100
Palm Desert, CA 92211
[email protected]
Section 19. Attorney's Fees. In the event that either party commences any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees, costs and necessary disbursements, in addition to such other relief as may be sought and awarded.
Section 20. Entire Agreement. This Agreement represents the entire integrated agreement between Authority and Consultant, and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by both Authority and Consultant.
Section 21. Governing Law. The interpretation and implementation of this Agreement shall be governed by the domestic law of the State of California.
Section 22. Authority Not Obligated to Third Parti es. Authority shall not be obligated or liable under this Agreement to any party other than Consultant.
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Section 23. Exhibits; Precedence . All documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail.
Section 24. Equal Employment Opportunity. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, marital status, ancestry or national origin.
Consultant shall ensure that applicants are em ployed, and that employees are treated during their employment, without regard to their race, religion, color, sex, age, marital status, ancestry or national origin. Such actions shall include, but not be limited to, the following: employment, upgrading, d emotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
Section 25. Prevailing Wage and Payroll Records. [Check if Applicable] Notice is hereby given that in accord with California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), Consultant is required to pay not less that the general prevailing rate of per diem wages for work of a similar character in the locality in which Consultant’s Services pursuant to this Agreement are performed, and not less than the general prevailing rate of per diem wages for hol iday and overtime work. In that regard, the Director of the Department of Industrial Relations of the State of California is required to and has determined such general prevailing rates of per diem wages. Copies of the State prevailing wage rates and the latest revisions thereto are available on the Internet at www.dir.ca.gov. (a) Covenant to Comply . Consultant covenants that it shall fully comply with all applicable federal and state labor laws (including, without limitation, if applicable, the Prev ailing Wage Laws). For purposes of this Section 25(a) only, the term “ subcontractors” shall not include suppliers, manufacturers, or distributors. Consultant further covenants that it shall take all practicable steps to ensure that its subcontractors comply with Prevailing Wage Laws if applicable to work performed by subcontractors. References to “Covered Services” hereinafter shall designate such Services as are subject to Prevailing Wage Laws. (b) Payroll Records. Consultant and all subcontractors performing Covered Services shall keep an accurate payroll record, showing the name, address, social security number, job classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyperson, ap prentice, or other employee. All payroll records shall be certified as being true and correct by Consultant or the sub contractors p erforming Covered Services keeping such records; and the payroll records shall be available for inspection at all reasonable hours at Consultant’s principal office.
Section 26. Severability. Invalidation of any provision contained herein or the application thereof to any person or entity by judgment or court order shall in no way affect any of the other covenants, conditions, restrictions, or provisions hereof, or the application thereof to any other person or entity, and the same shall remain in full force and effect.
SIGNATURES ON FOLLOWING PAGE
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EXECUTED this 6 day of April 2022, at Indio, California.
INDIO WATER AUTHORITY
BRYAN H. MONTGOMERY
Executive Director
ATTEST:
CYNTHIA HERNANDEZ, CMC
Secretary
CONSULTANT: MICHAEL BAKER INTERNATIONAL
MOMCILO SAVOVIC
PRINCIPAL-IN-CHARGE
APPROVED AS TO FORM
ROXANNE M. DIAZ
Authority General Counsel
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EXHIBIT A
SCOPE OF WORK AND TIME OF PERFORMANCE
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4. Proposed Scope of Work and Deliverables
Michael Baker has reviewed the RFP in detail. To demonstrate our understanding of the project elements and scope of work, we have provided summary tables outlining the elements included in the RFP. Each item that is included in the scope in specifically identified as “Included”.
Table 3.2: Reservoir Improvements
Recommended Improvement RFP Priority Scope Notes
Provide lock on ball valve and install Immediate Included Will be provided Coat blind flange on tank drain piping Short Term Included Will be provided Provide safety device on ladder (saf-t-climb) Short Term Included Based on manufacturer
recommendations for use in
submerged conditions
Replace 10” gate valve on tank drain piping and 18” gate valve on booster pump station suction piping (in vault) in 5 to 10 years Long Term Excluded
Provide supports as required for the LFMC at the pressure indicating transmitter (PIT) and the high-level switch Immediate Included Will be provided
Bond the rigid metal conduit (RMC) at the bonding conductor termination and replace the missing cover on the conduit body at the bonding connection Immediate Included Will be provided Paint the exposed LFMC to prevent additional UV damage and prolong its service life Short Term Included Will be provided Recoat reservoir in 5 -10 years Long Term Excluded
Grind plate edge smooth and remove surface corrosion. Replace bearing pad with epoxy grout. Short Ter m Included Will be provided Provide rafter lateral bracing during next recoating cycle. Long Term Excluded
Table 3.4: Booster Pump Station Improvements
Recommended Improvement RFP Priority Scope Notes
Replace trench plates. Consider fiberglass grating for visibility. Immediate Included Corrected with new pump station Consider painting berms yellow. Replacement of metal grating with fiberglass grating. Alternatively, hinged grating. Immediate Included Corrected with new pump station Provide double containment piping for tubing (clear PVC Piping) Immediate Included Corrected with new pump station Replace trench cover plates with grating. Alternatively, tank relocation, housekeeping pad, and containment berm (EPA 40 Code of Federal Regulations [CFR] requires 10% of volume) Tank replacement Immediate Included Corrected with new pump station Relocate metering pump to containment ski d. Place on top of fiberglass table/pedestal Short Term Included Corrected with new pump station Replace ball valves and provide locks. Install dielectric unions. Short Term Included Corrected with new pump station Regrade and fill holes around vault Immediate Included Corrected with new pump station Install bollards Immediate Included Corrected with new pump station Replace window and provide security screen Short Term Included Corrected with new pump station
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Replace pump shaft assembly, pump bowls, column pipe and discharge head Short Term Included Corrected with new pump station Perform surge tank inspection of interior. Provide tank name plate. Short Term Limited Limited to visu al interior observations Replace sump pump and remove grit from trench Short Term Included Corrected with new pump station Provide additional stanchion support between ClaVal and isolation valve Short Term Included Corrected with new pump station Replace dismantling joint and pipe spool/flange connection to valve Short Term Included Corrected with new pump station Provide stanchion support for Pump 1 discharge piping assembly Short Term Included Corrected with new pump station Clean swamp cooler units and repaint unit support structure Short Term Included Corrected with new pump station Preform arc flash study and provide equipment specific arc-flash labeling Provide lighting at panel. I mmediate Excluded Requirement for Contractor to provide
based on new equipment provided will
be included in Contract Documents
Clear dust and debris from cabinets. Provide lighting at panel. Short Term Included Corrected with new pump station Replace MSA/MBA (full replacement in 5 to 10 years Long Term Excluded Preform arc-flash study and provide safety information Immediate Excluded Requirement for Contractor to provide
based on new equipment provided will
be included in Contract Documents
Clean accumulated dust and debris. Verify operation of motor space heaters and repair if necessary Imm ediate Included Corrected with new pump station Replace pump motors (Pump 1 & 2) in 5 to 10 years Long Term Limited If new pumps are provided, the reuse of the existing motors will be evaluated.
Bring starter enclosure up to code by correcting grounding violation in starter enclosure Immediate In cluded New Starters will be provided with new pump station
Complete planned interior lighting repairs Immediate Included New interior lighting will be provided with new pump station
Provide local disconnect switch for the air compressor, or provide means to lock-off the supply breaker at panel LP -1 Immediate Included Corrected with new pump station Correct bonding connection Immediate Included Corrected with new pump station Replace missing cover on the exterior wireway Immediate Included Corrected with new pump station Replace roof structure Short Term Included Corrected with new pump station Fill all open holes in block CMU wall. Seal vertical mortar cracks with epoxy mortar Short Term Included Corrected with new pump station Repair floor slab cracks with epoxy mortar. Repair pit curb cracking and spalling. Anchor trench cover plate. Anchor sodium hypochlorite tank to foundations Short Term Included Corrected with new pump station Replace surge tank pedestals and anchor new pedestals Short Term Included Corrected with new pump station Repair piping thrust blocks Short Term Included Corrected with new pump station
Table 3.5: Well 2C Improvements
Recommended Improvement RFP Priority Scope Notes
Provide complete security enclosure around flow meter Immediate Included Will be provided in Contract Documents
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Provide protective cover over piping on floor Immediate Included Will be provided in Contract Doc uments Provide drainage outlet at base of wall Short Term Included Will be provided in Contract Do cuments Replace pump shaft assembly, and pump bowls. Recoat motor support/discharge head housing Short Term Included Will be provided in Contract Documents Replace swamp cooler and replace support with concrete pad and anchor bolts Short Term Included Will b e provided in Contract Documents Correct the grounding violations in the starter enclosure Immediate Included Will be provided in Contract Doc uments Clean dust and debris from enclosure and perform arc-flash study. Provide safety information on the starter enclosure Immediate Included Will be provided in Contract Doc uments Connect motor space heaters and confirm their operation Immediate Included Will be provided in Contract Doc uments Replace motor in 10 to 15 years Long Term Included Will be provided in Contract Documents Provide signage at the lighting panel and lighting panel transformer that indicate the location of the power supply breaker for the equipment. Update panel schedule information. Immediate Included Will be provided in Contract Doc uments Correct the bonding and grounding at the lighting panel trans former Immediate Included Will be provided in Contract Documents Replace roof structure Short Term Excluded Limited cost-benefit value anticipated.
Included as optional item only.
Fill all open holes in block wall and seal vertical mortar cracks with epoxy repair Short Term Include d Will be provided in Contract Documents Core through base of CMU wall to aid with building drainage. Short Term Included Will be provided in Contract Do cuments Remove existing fan/AC unit supports and construct new concrete equipment pad. Anchor fan/AC unit to new concrete equipment pad Short Term Included Will be provided in Contract Do cuments Replace interior drywall in approximately 5 years. Improve ventilation in building to limit deterioration Long Term Exclude d Repair floor slab cracking by means of epoxy injection and spalling with repair mortar. Replace all floor joint material Short Term Included Will be provided in Contract Do cuments
Table 3.6: Well 2D Improvements
Recommended Improvement RFP Priority Scope Notes
Adjust pipe supports or provide new adjustable pipe stanchion supports Immediate Included Will be provided in Contract Documents Repair or replace ventilation fan Immediate Included Will be provided in Contract Doc uments Install protective bollards around exposed pump discharge piping and overflow piping Immediate Included Will be provided in Contract Documents Replace pump shaft assembly, and pump bowls. Recoat motor support/discharge head housing Short Term Included Will be provided in Contract Documents Replace 8” AWWA gate valve and 10” ClaVal check valve in 5 to 10 years Long Term Excluded Clean accumulated dust from enclosure and electrical components Immediate Included Will be provided in Contract Documents Replace pump motor connection insulating boots Immediate Included Will be provided in Contract Documents Replace pump motor in 5 to 10 years Long Term Excluded
Preform arc -flash study and provide safety information on the starter enclosure Immediate Included Will be provided in Contract Documents Support class 2 wiring to bring up to code Immediate Included Will be provided in Contract Doc uments Repair or replace building interior lighting Short Term Included Will be provided in Contract Do cuments
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Replace the conduit and pipe to the FIT with components that are compatible and sized correctly.
Provide the required supports for the LFMC at the FIT. Short Term Included Will be provided in Contract Do cuments
In addition, Michael Baker has reviewed the Scope of Services will provide the scope of work and deliverables as identified in the RFP for all Tasks. Specific clarifications are listed below.
Task 1 – Project Management. Task 4 – Permits Task 6 – Engineering Support during Construction Phase Task 2 – Preliminary Design Report (PDR) Task 5 – E ngineering Services during Bidding Phase Task 7 – F inal As-Built Drawings Task 3 – Preparation of Plans and Specifications
Specific Clarifications to the Scope of W ork
• Project meetings and workshops have been assumed to resume to in-person meetings at IWA offices for milestone meetings and site meetings. Any interim progress meetings or design clarification meetings will be conducted on Microsoft Teams. • The Arc-Flash analysis of proposed pump station equipment will be specified to be provided by the Contractor, based on the actual facility layout, wiring, and equipment provided for the replacement facility. An ARC flash study on the existing equipment would be of little long-term value if the equipment is to be replaced and is not included for the pump station (arc-flash included for the two well sites only) • At this time Michael Baker cannot guarantee the pump station would qualify for LEED Ratings or receive Envision Sustainability awards. • Michael Baker has assumed that IWA will provide the pressure and head operating points for the propose d pump station, or will provide the hydraulic syste m curve for the distribution system at the pump station, either based on IWAs existing model or SCADA data. • Although not explicit in the scope of work, Michael Baker has included the following services required for the project:
o Topographic ground survey of the facility
o Geotechnical subsurface investigation
o Pothole exploration for five (5) on-site utilities or connection points o Hydraulic Surge Analysis
Scope Item 2f
The RFP Scope item 2f states, “Consultant shall provide preliminary layout for any new facilities that are now required, or could be needed, such as Chromium VI treatment within Plant
2.” Michael Baker’s scope of work and fee includes this item as part of the Preliminary Design Report provided under Task 2. The layouts will consist of a footprint to allow space for future equipment, and will be based on sizes of existing similar facilities or vendor dimensional information. The sizing estimation will be based on contaminate level and flow rates to be provided by IWA.
Hydraulic Model and Surge Analysis
Michael Baker has seasoned, experienced staff who h ave successfully completed hydraulic modelling for similar facilities and have included a hydraulic su rge analysis in our proposal.
Michael Baker will use hydraulic modelling and engi neering analysis to evaluate several options for th e facility before design. Included with the model w ill be a hydraulic transient and surge analysis that will determine which improvements may help to mitigate surge events, and to properly size the hydropneumatics tank. Michael Baker can also use the model to help determine if the replacement pump station would benefit from the use of variable frequency drives for the pumps. The hydraulic analysis will be based on using IWA’s existing hydraulic model as a basis for the surge analysis.
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Excluded Scope Items
The items listed below are excluded from the scope of the fee proposal. These services can be provided by Michael Baker and we welcome discussion with IWA if any of these services are specifically desired. These items have been excluded either because the scope is not yet defined or understood, they were not included in the RFP, or Michael believes they may not bring added cost-benefit value to IWA, without prior discussion of IWAs agency needs and goals. • LEED Rating application package is not included and may require additional fee if a LEED rating is des ired by IWA. Michael Baker will discuss LEED design and building requirements with IWA and determine if the additional engineering and construction costs would provide the value that IWA desires based on budget and expected outcomes. • The Emergency Operations and Server Hot Site will be provided as a “space only” design element. An empty room or area will be provided for the facility equipment to be installed at a later date, by others. Design elements including server equipment wiring, conduits, controls, etc, are not included. • The kitchen and restroom are limited to standard residential-level facilities for city operations staff to use. Large public restrooms and/or a commercially licensed kitchen are not included.
• Architectural renderings are not included. The scope and fee is based on providing elevation drawings of the proposed building. • Mockups and Color/Texture boards are not included. Sample materials can be requested from suppliers on behalf of IWA for evaluation of the color and finish.
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EXHIBIT B
CONSIDERATION
Authority shall pay Consultant the flat rate amounts set forth in Exhibit A for the services requested by the Indio Water Authority. In no event shall the compensation exceed $ 312,798 .
AGENDA ITEM #8.11
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Charge
Project
Manager
QC Reviewer/
Director
Pump Station
Engineer Civil Engineer Project
Designer
Corrosion
Tech.
Sr. Electrical
Manager
Electrical
Engineer
Design
Engineer
Sr. Structural
Manager
Structural
Engineer Architect Architect
Designer HVAC Engineer Mechanical
Designer
Licensed
Surveyor GIS Analyst 2-Person
Survey Crew
1-Person
Survey Crew
Environ.
Specialist
Office
Support/
Clerical
Total Labor Total
Labor Fee
Other Direct
Costs
Pothole
Subconsultant
Geotech
Subconsultant
Structural
Subconsultant
Total
Cost
Billing Rate $290 $231 $267 $195 $195 $134 $180 $258 $225 $164 $258 $211 $21 5 $134 $195 $134 $216 $154 $288 $178 $154 $77
1.0 Project Management
Kick Off Meeting 2 2 2 2 2 10 2,314 $ 500 $ - $ - $ - $ 2,814 $ Design Schedule & Updates 8 1 1 10 2,321 $ - $ - $ - $ - $ 2,321 $ Update Meetings 8 2 2 12 2,794 $ 500 $ - $ - $ - $ 3,294 $ Quarterly Meetings 8 2 2 12 2,794 $ 500 $ - $ - $ - $ 3,294 $ Design Review Meetings & Presentations 8 4 2 4 2 8 28 5,222 $ 1,500 $ - $ - $ - $ 6,722 $ Quality Control / Quality Assurance 2 8 10 2,716 $ - $ - $ - $ - $ 2,716 $ Submittals & Comment Tracking 2 2 4 616 $ - $ - $ - $ - $ 616 $ Subtotal Task 1 2 36 8 6 0 0 0 9 0 0 6 0 9 0 0 0 0 0 0 0 0 10 86 18,777 $ 3,000 $ - $ - $ - $ 21,777 $
2.0 Data Gathering, Site Reconnaissance, and Analysi s
Gather & Review Reference Documents 2 4 4 4 14 2,678 $ 100 $ - $ - $ - $ 2,778 $ Field Visits, Investigations, & Record Review 2 4 4 4 4 18 3,954 $ 500 $ - $ - $ - $ 4,454 $ Acquire Mapping & Record Drawings 2 2 268 $ 200 $ - $ - $ - $ 468 $ Survey and Base Mapping 8 2 8 18 4,340 $ 500 $ - $ - $ - $ 4,840 $ Surge Analysis and Hydraulic Modelling 16 2 40 16 8 82 15,406 $ - $ - $ - $ - $ 15,406 $ Preliminary Design Report 1 16 4 4 2 8 4 4 43 8,855 $ 100 $ - $ - $ - $ 8,955 $ 30% Drawings 1 4 4 30 2 8 8 4 4 65 11,331 $ 200 $ - $ - $ - $ 11,531 $ Subtotal Task 2 0 22 2 68 16 48 4 4 20 16 12 0 4 0 0 0 8 10 8 0 0 0 242 46, 832 $ 1,600 $ - $ - $ - $ 48,432 $
3.0 Preparation of Plans and Specifications
Potholes (5) 2 2 4 8 1,412 $ - $ 6,600 $ - $ - $ 8,012 $ Geotechnical Investigation 1 2 4 7 1,531 $ - $ - $ 12,870 $ - $ 14,401 $ Arc-Flash Study for Well Sites 1 4 44 16 65 13,787 $ - $ - $ - $ - $ 13,787 $ Develop 60% Design Documents 1 16 22 160 8 4 40 80 4 1 16 8 8 8 376 62,060 $ 200 $ - $ - $ 13,603 $ 75,863 $ Develop 90% Design Documents 1 8 16 110 8 4 16 60 4 1 16 8 4 2 258 42,366 $ 200 $ - $ - $ 13,603 $ 56,169 $ Develop 100% Design Documents 1 4 4 40 4 4 4 8 4 1 4 4 4 2 88 14,802 $ 200 $ - $ - $ 13,603 $ 28,605 $ Final Bid Documents & Mylars 1 2 2 4 2 4 2 17 3,083 $ 5,200 $ - $ - $ - $ 8,283 $ Subtotal Task 3 0 6 0 30 44 318 20 16 106 168 16 3 38 20 16 12 2 0 0 4 0 0 819 139,041 $ 5,800 $ 6,600 $ 12,870 $ 40,809 $ 205,120 $
4.0 Permits
Permit Research 8 8 1,232 $ - $ - $ - $ - $ 1,232 $ Permit Applications 8 8 1,232 $ 500 $ - $ - $ - $ 1,732 $ MND Filing 4 4 616 $ - $ - $ - $ - $ 616 $ Subtotal Task 4 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 20 0 20 3,080 $ 500 $ - $ - $ - $ 3,580 $
5.0 Engineering Services during Bidding Phase
Pre-Bid Meeting 4 4 8 1,784 $ - $ - $ - $ 550 $ 2,334 $ RFI Services 1 2 2 2 2 2 11 2,407 $ - $ - $ - $ 550 $ 2,957 $ Bid Recommendation 4 4 924 $ - $ - $ - $ - $ 924 $ Subtotal Task 5 0 9 0 2 2 0 0 2 2 0 0 0 6 0 0 0 0 0 0 0 0 0 23 5,115 $ - $ - $ - $ 1,100 $ 6,215 $
6.0 Engineering Support during Construction Phase
Respond to RFIs (20) 2 4 4 2 4 4 20 4,298 $ - $ - $ - $ 4,197 $ 8,495 $ Respond to Submittals (20) 2 4 4 2 4 4 4 24 5,330 $ - $ - $ - $ 4,197 $ 9,527 $ O&M Reviews 1 16 1 18 3,609 $ - $ - $ - $ - $ 3,609 $ Subtotal Task 6 0 5 0 24 8 0 0 5 8 0 4 0 8 0 0 0 0 0 0 0 0 0 62 13,237 $ - $ - $ - $ 8,393 $ 21,630 $
7.0 As-Built Drawings
Incorporate red line changes 1 30 2 2 2 37 5,123 $ - $ - $ - $ - $ 5,123 $ Issue Record Drawings 1 4 2 7 921 $ - $ - $ - $ - $ 921 $ Subtotal Task 7 0 2 0 0 0 34 0 0 2 0 0 0 0 2 0 0 0 0 0 0 0 4 44 6,044 $ - $ - $ - $ - $ 6,044 $ 2 64 10 104 60 366 24 29 126 184 34 3 51 20 16 12 10 10 8 4 0 10 1,147 204 ,650 $ 10,400 $ 6,600 $ 12,870 $ 40,809 $ 275,329 $ 0 16 0 26 10 34 0 7 12 0 4 0 14 2 0 0 0 0 0 0 20 4 149 27,476 $ 500 $ - $ - $ 9,493 $ 37,469 $ 2 80 10 130 70 400 24 36 138 184 38 3 65 22 16 12 10 10 8 4 20 14 1,296 23 2,126 $ 10,900 $ 6,600 $ 12,870 $ 50,302 $ 312,798 $ PROJECT TOTALS (ALL TASKS) Structural Architectural Survey / Mapping Misc.
DESIGN TOTALS (TASKS 1 -3)
CONSTRUCTION SUPPORT TOTALS (TASKS 4 - 7)
Indio Water Authority
Upgrades to IWA Plant No. 2
Fee Proposal
Task
No. Description
Labor by Classification (hours)
Fees
Management Civil & Pump Station Electrical
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City Council
April 6, 2022
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Reject the construction bid for the Herbert Hoover Elementary School Pedestrian Improvement Project, City Project No. SW1801 and authorize staff to clarify the bid requirements, and readvertise the bid, including the plans and specifications.
RECOMMENDATION:
Reject the construction bid for the Herbert Hoover Elementary School Pedestrian Improvement Project, City Project No. SW1801 and authorize staff to clarify the bid requirements readvertise the bid, including the plans and specifications.
SUMMARY:
On March 14, 2022, the City Clerk’s office received and opened only one bid for the Herbert Hoover Elementary School Pedestrian Improvement Project (Project). The bid received is nearly double the Engineer’s Estimate for these improvements. Staff recommends rejecting this bid as non-competitive and further clarifying project requirements in the bid documents to improve possible bidder assumptions in the required work required and encourage additional bidder competition.
BACKGROUND INFORMATION:
In 2018, the City received approximately $3 Million dollars in grant funding from Cycle 3 of the Active Transportation Program (ATP) to construct sidewalks along fourteen (14) street segments in the neighborhood surrounding Herbert Hoover Elementary School next to Miles Avenue Park. The project limits generally include the street segments east of Monroe Street, west of Arabia Street, north of Bliss Avenue, and south of Indio Boulevard. The improvements include adding five foot (5’) sidewalks to both sides of the street segments, upgrade the driveways to current American with Disabilities Act (ADA) accessible standards, upgrade curb ramps to current ADA accessible standards, and other miscellaneous work associated with these improvements. The City received environmental clearance for the improvements in August, 2019.
In order to alleviate the project’s impact to the residents, staff held several outreach events with the community. In December 2018, staff held a project scoping meeting at Herbert Hoover Elementary School. Staff created a project website, https://www.herberthooverproject.com/, and held two virtual outreach meetings in December 2020 to present the final improvements. Staff encouraged residents of the community to sign up for a field walk to review specific improvements in front of each house.
In addition, for those properties whose impacts were more significant, staff sent multiple letters to the property owners highlighting specific improvements that would impact them.
AGENDA ITEM #8.12
Reject the construction bid for the Herbert Hoover Elementary School Ped... Page 202 of 1245 On September 16, 2021, the State of California Department of Transportation (Caltrans) authorized the City to bid the Project. The ATP Guidelines require the City to award the contract by June 30, 2022. The City received and opened only one bid on March 14, 2022, summarized below:
Bidder’s Name Total Bid
Granite Construction $6,642,466
This amount exceeds the Engineer’s Estimate of $3,774,677, by a substantial amount. In reviewing the individual line items, the items for removing the driveways, removing and replacing the landscaping, and constructing the new sidewalk account for 40% of the total overage. High bid amounts for the other concrete items including constructing the new driveways, curb and gutter, and retaining curbs behind the new sidewalks account for another 20% of the total overage when combined. While prices for concrete and asphalt have been rising due to shortages in material and labor, staff believes this bid is higher than current market demand and is not competitive. As such, staff recommends rejecting the bid.
Staff has communicated with other contractors in the area to get a better understanding as to why not more contractors bid on the Project. None of the contractors indicated that the plans and specifications were too restrictive that prevented them from bidding. Generally, the size of the project appears to have been a determining factor for some contractors either not wanting to, or not being able to, bid such a large concrete project as Prime Contractor.
Staff will work with the designer, Albert A. Webb Associates, to reevaluate the project specification s, without changing the original scope, and improve the language that may be leading to conservative assumptions from the bidders and driving up the Project costs compared to what the Engineer assumed. Staff will request a time extension from the Californ ia Transportation Commission for the ATP Guideline bid award deadline.
In addition, if the City successfully receives more bids that indicate the market value for this work has increased substantially over the past two years, the City will approach Caltr ans to discuss options.
Staff may need to request additional ATP funding; reduce the scope of the project; split the project into multiple, smaller phases; or a combination of these approaches. Due to the competitive nature of the grant program, Staff will need to work closely with Caltrans on the best approach.
FINANCIAL DETAIL:
Current FY Financial
Impact:
$0 In current year budget: N/A
Current FY General
Fund Impact:
$0 Budget adjustment: N/A
Future FY Financial
Impact:
$0 For fiscal year: 21/22
Source of funds: N/A Account number: N/A
Additional Financial Details:
Staff recommends rejecting the bid for the Project. No impact to the City’s budget will occur at this time.
ATTACHMENTS:
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Attachment 2_BID SUMMARY - SW1801
APPROVAL(S):
Timothy Wassil, Public Works Director Approved - 30 Mar 2022 Roxanne Diaz, City Attorney Approved - 30 Mar 2022
Bryan H. Montgomery, City Manager Approved - 30 Mar 2022
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PROJECT VICINITY MAP
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BID COMPARISON SUMMARY
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BID SUMMARY
HERBERT HOOVER ELEMENTARY SCHOOL PEDESTRIAN IMPROVEMENTS PROJECT (SW1801) Bid Opening: 3/14/2022 Difference % Difference % of Difference
ITEM
NO. ITEM UNIT ESTIMATED
QUANTITY UNIT COST AMOUNT UNIT COST AMOUNT
Highlighted cells
below indicate a
difference
>$100,000
Highlighted cells
below indicate the
difference
accounts for >10%
total
1 MOBILIZATION/ DEMOBILIZATION,
(Not to Exceed 5% of Total Estimate
Cost)
LS 1 $ 174,000.00 $ 174, 000.00 $ 320,000.00 $ 320, 000.00 $ (146,000.00) 83.91% 5.09%
2 Temporary Traffic Control LS 1 $ 48,900.00 $ 48, 900.00 $ 50,000.00 $ 50, 000.00 $ (1,100.00) 2.25% 0.04% 3 SWPPP LS 1 $ 16,300.00 $ 16, 300.00 $ 75,000.00 $ 75, 000.00 $ (58,700.00) 360.12% 2.05% 4 DUST CONTROL LS 1 $ 16,300.00 $ 16, 300.00 $ 40,000.00 $ 40, 000.00 $ (23,700.00) 145.40% 0.83% 5 CLEAR AND GRUB (TREES SMALLER THAN 12-INCH DIAMETER, SHRUBS,
LANDSCAPING, TRIMMING VEGETATION AWAY FROM BACK OF WALK, WHERE
NOTED TO PROTECT)
LS 1 $ 97,000.00 $ 97, 000.00 $ 452,160.50 $ 452, 160.50 $ (355,160.50) 366.14% 12.38%
6 REMOVE TREE/PALM TREE 12-INCH IN DIAMETER AND LARGER INCLUDING
STUMP GRIND
EA 42 $ 2,000.00 $ 84, 000.00 $ 2,000.00 $ 84, 000.00 $ - 0.00% 0.00% 7 REMOVE AND REINSTALL EXISTING LANDSCAPE, HARDSCAPE (INCLUDING MOW STRIPS AND BORDERS), AND IRRIGATION. INCLUDING SALVAGE TREE
TO OWNER AS INDICATED ON PLANS
LS 1 $ 97,000.00 $ 97, 000.00 $ 330,000.00 $ 330, 000.00 $ (233,000.00) 240.21% 8.12%
8 REMOVE AND DISPOSE OF EXISTING CURB, CURB AND GUTTER, AND V- GUTTER
LF 8,330 $ 10. 00 $ 83, 300.00 $ 20. 00 $ 166, 600.00 $ (83,300.00) 100.00% 2.90% 9 REMOVE AND DISPOSE OF EXISTING SIDEWALK SF 4,874 $ 4. 40 $ 21, 445.60 $ 10. 00 $ 48, 740.00 $ (27,294.40) 127.27% 0.95% 10 REMOVE AND DISPOSE OF EXISTING DRIVEWAY AND CROSS GUTTER SF 59,029 $ 3. 50 $ 206, 601.50 $ 10. 00 $ 590, 290.00 $ (383,688.50) 185.71% 13.38% 11 REMOVE AND DISPOSE OF EXISTING PAVEMENT SECTION SF 16,800 $ 1. 00 $ 16, 800.00 $ 7. 00 $ 117, 600.00 $ (100,800.00) 600.00% 3.51% 12 REMOVE AND DISPOSE OF EXISTING BLOCK GARDEN WALL LF 67 $ 12. 00 $ 804. 00 $ 100. 00 $ 6, 700.00 $ (5,896.00) 733.33% 0.21% 13 REMOVE AND RELOCATE EXISTING CHAIN LINK FENCE (REPLACE IF
REQUIRED)
LF 168 $ 30. 00 $ 5, 040.00 $ 7. 00 $ 1, 176.00 $ 3,864.00 -76.67% -0.13% 14 REMOVE AND RELOCATE EXISTING WROUGHT IRON FENCE (REPLACE IF
REQUIRED)
LF 71 $ 40. 00 $ 2, 840.00 $ 200. 00 $ 14, 200.00 $ (11,360.00) 400.00% 0.40% 15 REMOVE AND REINSTALL EXISTING WATER METER/WATER VALVE PER IWA STANDARDS (EXTENTS OF LINE REPLACEMENT TBD EA 269
$ 750. 00 $ 201, 750.00 $ 1,038.00 $ 279, 222.00 $ (77,472.00) 38.40% 2.70%
16 REMOVE AND RELOCATE EXISTING WOOD FENCE (REPLACE IF REQUIRED LF 9 $ 100. 00 $ 900. 00 $ 100. 00 $ 900. 00 $ - 0.00% 0.00% 17 RELOCATE/REPLACE EXISTING MAILBOX (INCLUDING SPECIALTY MAILBOX) EA 52 $ 200. 00 $ 10, 400.00 $ 600. 00 $ 31, 200.00 $ (20,800.00) 200.00% 0.73% 18 RELOCATE EXISTING STREET LIGHT EA 8 $ 10,000.00 $ 80, 000.00 $ 4,300.00 $ 34, 400.00 $ 45,600.00 -57.00% -1.59% 19 RELOCATE PRIVATE STREET LIGHT PER OWNER'S DIRECTION EA 3 $ 900. 00 $ 2, 700.00 $ 4,700.00 $ 14, 100.00 $ (11,400.00) 422.22% 0.40% 20 RELOCATE EXISTING FIRE HYDRANT PER IWA STANDARDS EA 5 $ 5,000.00 $ 25, 000.00 $ 14,000.00 $ 70, 000.00 $ (45,000.00) 180.00% 1.57% 21 RELOCATE EXISTING BACK-FLOW DEVICE EA 2 $ 5,000.00 $ 10, 000.00 $ 8,500.00 $ 17, 000.00 $ (7,000.00) 70.00% 0.24% 22 ADJUST EXISTING FIRE HYDRANT TO GRADE PER IWA STANDARDS EA 12 $ 5,000.00 $ 60, 000.00 $ 11,000.00 $ 132, 000.00 $ (72,000.00) 120.00% 2.51% 23 CONSTRUCT WEDGE CURB PER CITY OF INDIO STD. PLAN NO. 124 LF 275 $ 15. 00 $ 4, 125.00 $ 43. 00 $ 11, 825.00 $ (7,700.00) 186.67% 0.27% 24 CONSTRUCT TRANSITION CURB PER CITY OF INDIO STD. PLAN NO. 125 LF 140 $ 15. 00 $ 2, 100.00 $ 42. 50 $ 5, 950.00 $ (3,850.00) 183.33% 0.13% 25 CONSTRUCT RESIDENTIAL DRIVEWAY APPROACH PER CITY OF INDIO STD.
PLAN NO. 128 or 129
SF 73,813 $ 12. 00 $ 885, 756.00 $ 14. 50 $ 1,070,288.50 $ (184,532.50) 20.83% 6.43% 26 CONSTRUCT COMMERCIAL DRIVEWAY APPROACH PER CITY OF INDIO STD.
PLAN NO. 130
SF 1,700 $ 15. 00 $ 25, 500.00 $ 22. 00 $ 37, 400.00 $ (11,900.00) 46.67% 0.41% 27 CONSTRUCT CURB RAMP TYPE PER PLAN EA 56 $ 3,500.00 $ 196, 000.00 $ 5,000.00 $ 280, 000.00 $ (84,000.00) 42.86% 2.93% 28 CONSTRUCT CONCRETE SIDEWALK/WALKWAYS SF 100,460 $ 8. 00 $ 803, 680.00 $ 12. 00 $ 1,205,520.00 $ (401,840.00) 50.00% 14.01% 29 CONSTRUCT PORTION OF CROSSGUTTER PER CITY OF INDIO STD. PLAN NO. 137
SF 267 $ 15. 00 $ 4, 005.00 $ 37. 00 $ 9, 879.00 $ (5,874.00) 146.67% 0.20% Granite Construction Company
IMPROVEMENTS
Engineer's Estimate - Base Bid
1 of 2
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BID SUMMARY
HERBERT HOOVER ELEMENTARY SCHOOL PEDESTRIAN IMPROVEMENTS PROJECT (SW1801) Bid Opening: 3/14/2022 Difference % Difference % of Difference
ITEM
NO. ITEM UNIT ESTIMATED
QUANTITY UNIT COST AMOUNT UNIT COST AMOUNT
Highlighted cells
below indicate a
difference
>$100,000
Highlighted cells
below indicate the
difference
accounts for >10%
total
Granite Construction Company Engineer's Estimate - Base Bid 30 CONSTRUCT 6" CURB & GUTTER PER CITY OF INDIO STD. PLAN NO. 120 LF 9,820 $ 20. 00 $ 196, 400.00 $ 40. 00 $ 392, 800.00 $ (196,400.00) 100.00% 6.85% 31 CONSTRUCT RETAINING CURB ALONG SIDEWALK AS REQUIRED PER TYPICAL DETAIL ON SHEET 2
LF 14,810 $ 18. 00 $ 266, 580.00 $ 31. 50 $ 466, 515.00 $ (199,935.00) 75.00% 6.97% 32 CONSTRUCT FULL DEPTH A.C. (8" MIN. DEPTH) TONS 535 $ 140. 00 $ 74, 900.00 $ 400. 00 $ 214, 000.00 $ (139,100.00) 185.71% 4.85% 33 GRIND AND OVERLAY EXISTING A.C. PAVEMENT (1.5") SF 9,700 $ 1. 50 $ 14, 550.00 $ 5. 00 $ 48, 500.00 $ (33,950.00) 233.33% 1.18% 34 SIGNING AND STRIPING INCLUDING ALL INCIDENTALS LS 1 $ 40,000.00 $ 40, 000.00 $ 24,500.00 $ 24, 500.00 $ 15,500.00 -38.75% -0.54% TOTAL 3,774,677.10$ TOTAL 6,642,466.00$ $ (2,867,788.90) 75.97% 100% 2 of 2
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City Council
April 6, 2022
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Scott Trujillo, Deputy City Manager
Subject: Review and approve the City of Indio’s Public Arts Commission Work Plan as recommended by the Public Arts Commission to the City Council.
RECOMMENDATION:
Approve the City of Indio’s Public Arts Commission Work Plan.
SUMMARY:
The proposed Public Arts Commission Work Plan (“the Plan”) outlines carryover projects (ongoing projects) from previous year(s) and new projects for the upcoming Fiscal Year 2022/2023. The Plan has been drafted based on priorities outlined in the Public Arts Strategic Plan and availability of funds.
The Plan proposes an overall budget, brief descriptions, proposed locations, recommended type of artist selection process, and anticipated completion dates.
BACKGROUND INFORMATION:
The City of Indio recognize s the valuable role that public art plays in enhancing the quality of life in the community. Public art has the power to transform a space into an active environment to inspire community engagement and celebrate the unique character of Indio. Public art projects are great tool to build stronger connections between people in the community that could result in community - gathering places.
The Work Plan (“the Plan”) aims to build greater public awareness of public arts and engagement with the City’s Public Arts collection(s). This would be accomplished by organizing events such as collection/gallery walks, lectures, panel discussions, tours and other opportunities for people to meet, learn about, and have conversations about the practice of public arts. The Plan seeks to enhance its identity and its online presence.
Community engagement is a key element in the Plan in regards to engaging the community/audiences and fostering participation in the arts. Therefore, when appropriate, the public art projects initiated by or facilitated by the Public Arts Commission will have a plan for community engagement with clear goals to take into account the principles of What’s Next in Indio.
PUBLIC ARTS OPPORTUNITIES:
The City’s Public Arts Program shall collaborate with other City Departments and outside agencies to rethink their approaches to placemaking in the capital projects they develop. Projects of this nature may include but not limited to integrated artworks at parks, pedestrian -scaled infrastructure such a s AGENDA ITEM #8.13
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In addition, the City’s history and its historic urban fabric is of the greatest assets and attractions; therefore, artists should be asked to consider the juxtapositions among the City’s history, the experience of the place as it is now, and the place that it becomes in the future. Artists should play a central role in City’s ongoing dialogue with history.
MISSION:
The mission of the Indio Public Arts Commission is to foster and advocate for arts, culture and history by providing: creative artistic opportunities, guidance to established and emerging artists and equitable access to resources for the enrichment of the Indio community (Attachment I.1 Strategic Plan).
VISION:
The Public Arts Commission envisions that the City of Indio will be the arts and entertainment hub for the Coachella Valley. We will be a tool for empowerment of our community, inspired by peopl e and places unique to the city, and reflective of its residents’ history, identity and interests. This commission will advocate for diverse, innovative and creative artwork and programs that advance and uplift arts, culture and historic preservation (Attachment I.1 Strategic Plan).
WHAT IS A WORK PLAN?
The City of Indio’s Public Arts Work Plan is an annual plan and an important milestone in that it will help the City’s Public Arts Program swing into action. The Plan focuses on clear visionary directions and decision-making processes for the Program.
The purpose of the City of Indio Art in Public Places is to develop and maintain a visual arts program for the residents and visitors of the City, to add to the economic vitality of the community, and to enhance the environment and unique character of area by providing for the acquisition and maintenance of quality works of public art.
(“the Commission Arts Public the for guidance types important two provides Plan The of Commission”), which administer and oversee the City’s Public Arts Program (“the Progra m”). The Plan establishes clear priorities for new projects, while allowing the Commission to be responsive to opportunities as they arise. The Plan is a document that guides the planning and execution of each public arts project. First, it offers broad direction about what types of public arts the City should commission and what locations are of highest priority. Second, it outlines the tools and processes necessary for identifying, planning, and implementing public art projects, as well as, guidance fo r reviewing and approving projects. The Plan will also include the following information:
1. Outlines new and ongoing projects for the upcoming year based on priority and availability of fund.
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2. A brief description of the project and description of related a ctivities, such as public outreach, time/place, and urban/natural environment.
3. Location and how and why it was selected.
4. List of internal and external stakeholders
5. Overall expected budget for each project.
6. A set of outcomes, such as if the project would alter the image of a physical area and/or if the project would be a gathering place.
7. Type of artist selection process including concept proposal by artists (open competition, pre - qualified artists list, limited or invitational competition, and curatorial process).
8. Anticipated completion date.
9. Inventory, maintenance, and conservation.
The Plan addresses the following Goals from the Public Arts Strategic Plan (Attachment I.1):
Goal #6-I and Goal #7-III: The Plan in its entirety meets Goal #6 -I of “Establish and maintain a transparent process for opportunities and application” and Goal # 6-II of “Provide guidance and support to artists as they pursue a professional career in public art” and Goal #7-IIIof“Connect with City Council and leadership through quality and consistent dialogue about projects and initiatives and to share how the commission is achieving the general plan goals”.
EVALUATION:
At the end of each year, the Plan shall be evaluated to understand to what degree the goals articulated at the beginning of the Plan for each project have been achieved. The evaluation shall include an external component related to the public’s perceptions of public arts in the City. The evaluation may be facilitated by an independent consultant and may include survey.
The Commission may also hold an annual open house at which all recently completed projects and projects in development are presented in an informal manner and during which members of the community and artists can discuss their own ideas and priorities with the Commission and staff.
An evaluation addresses the following Goal from the Public Arts Strategic Plan (Attachment I.1):
Goal #2-IV: Evaluation portion of the Plan meets Goal #2-IV of “Annually glean feedback from the community about projects” and Goal#7-IV of “Develop and run a self -diagnostic on our annual activities to determine if we have met our goals”.
PUBLIC ARTS WORK PLAN:
Ongoing Projects
The Public Arts Commission acknowledges the following current projects that will be carry over from past years:
Project Budget Timeline
Mural Conservation $30,000 To be completed June 2022
16 Traffic Signal Box $21,000 To be completed May 2022 20 Traffic Signal Boxes $26,000
Miles Avenue Bridge $68,000 To be completed Fall of 2022 Sarbale Ke $360,000 To be completed April of 2022
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Colossal Cacti $30,600 Completed
9/11 Memorial Project $125,000 (earmarked but not
appropriated)
To be completed when the
City’s Public Safety Campus
completed
Total Budget $535,000
New Projects
The Public Arts Commission identifies the following new projects. Each project includes a short summary as how it meets the Strategic Plan’s Goals and/or Values. The Strategic Plan is Attachment I.1 to this staff report:
1. 9/11 Memorial Project Description and Location (This project has been in works since 2015; However, since it has evolved it is added here under the new projects):
In March 2015, City staff sent a formal letter inquiring about the acquisition of a World Trade Center Artifact for the City of Indio. The City has received a piece of steel artifact from the former World Trade Center with intention to place it in an outdo or public area, where it will be most visible to the general public to serve as a memorial and educational piece for the community honoring the lives that were lost in the events of September 11, 2001. The piece of steel that the City has received is about 10’ to 12’ tall with a spiral curve.
I. Budget: Overall expected budget is $125,000.
II. Artist Selection Method: Circulation of a Request For Proposals (RFP).
III. Location: The City’s new Public Safety Campus to be located on the northeast corner of Dr. Carreon and Jackson Street
IV. Anticipated Timeline: 24 months and/or the same as the completion of the City’s new Public Safety Campus.
This project addresses the following Goal from the Public Arts Strategic Plan (Attachment I.1):
Goal#8-IV: This project m eets Goal#8 -IV of “Increase access to arts experiences and local public art”.
2. New Murals (Colossal Cacti and Jackson Bridge Murals):
a. Colossal Cacti Mural Project Description and Location: to paint a mural on the wall located south side of the Colossal Cacti parcel at 45102 Smurr Street to enhance the wide-open walls, to reduce potential of graffiti on the wall, to connect a three dimensional artwork (Colossal Cacti) to its surrounding by creating a background/backdrop complementing the artwork.
I. Budget: Overall expected budget is $25,000.
II. Artist Selection Method: Circulation of a Request For Proposals (RFP).
III. Location: 45102 Smurr Street.
IV. Anticipated Timeline: four (4) months.
b. Jackson Street Bridge: Project Description and Location: to paint a mural on pillars and sides of the Bridge to enhance an uninviting area with art/mural and to introduce and point the travelers to the City’s Downtown area, since it is the geographical heart of the City.
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I. Budget: Overall expected budget is $45,000.
II. Artist Selection Method: Circulation of a Request For Proposals (RFP).
III. Location: Jackson Street Bridge.
IV. Anticipated Timeline: five (5) months.
c. Small Murals Project Description and Loca tion: to creatively transform small infrastructure such as roof gutters, ballard, catch basins/storm drains, doorways, etc. into a fun small mural that could surprise the public and/or evoke the sense of discovery of public.
I. Budget: Overall expected budget is $5000 for five (5) small murals.
II. Artist Selection Method: Circulation of a Request For Proposals (RFP).
III. Location: Yet to be decided, potential location City’s Downtown area.
IV. Anticipated Timeline: two (2) months.
d. Downtown Living Room Modular Rest Room Description and Location: to transform the proposed modular restroom to be located at the Outdoor Living Room located at the southwest corner of Miles Avenue and Smurr Street for the City events.
I. Budget: Overall expected budget is $5000 for five (5) small murals.
II. Artist Selection Method: Circulation of a Request For Proposals (RFP).
III. Location: Southwest corner of Miles Avenue and Smurr Street.
IV. Anticipated Timeline: two (2) months.
The above noted p rojects addresses the following Goal from the Public Arts Strategic Plan (Attachment I.1):
Goal # 4-III: The above projects meets Goal # 4 -III of “Amplify existing events and include arts and cultural components”.
3. CV Link Public Art Project Description and Location:
CV Link is a new concept in active and alternative transportation led by the Coachella Valley Association of Governments (CVAG) providing access for pedestrians, bicyclists, and low -speed electric vehicles (including golf carts) on a du al pathway that largely parallels Highway 111 (https://coachellavalleylink.com/). The City’s Public Arts Commission selected two (2) locations for CV Link that are listed below:
a. There is an opportunity for public art for the Fred Warring Avenue Bridge that connects to the CV Link.
I. Budget: Overall expected budget is $50,000.
II. Artist Selection Method: Circulation of a Request For Proposals (RFP).
III. Locations: Shields Park andFred Warring Avenue Bridge.
IV. Timeline: 18 months.
b. Shields Park (northwest corner of Avenue 46 and Shields Road) to create a gathering place designed by a team of artist and landscape architect.
I. Budget: Overall expected budget is $50,000.
II. Artist Selection Method: Circulation of a Request For Proposals (RFP).
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IV. Timeline: 18 months.
The above noted projects addresses the following Goals from the Public Arts Strategic Plan (Attachment I.1):
Goal#4-I,Gola #4-III, and Goal#4-IV: This project meets Goal#4-I of “Create pathways for artists to use public space for creative endeavors” , Goal#4-III of “Amplify existing events and include arts and cultural components”, and Goal#4-IV of “Increase access to arts experiences and local public art”.
4. Second Entry Monument Project Description and Location:
In 2015, The City Council established the Entry Monument Project for the purpose of placing public art entry monuments at strategic City gateways (please see Attachment I.3 for the approved locations). The entry monuments are intended to enhance the City’s image and to compliment the culture, history, and activities that the City of Indio has become known for.
I. Budget: Overall expected budget to install an entry monument sign in one of the above noted locations is $125,000.
II. Artist Selection Method: Circulation of a Request For Proposals (RFP).
III. Location: Grass area located on the northwest corner of Kenner Avenue and Jackson Street (within close proximately to the Armory building).
IV. Timeline: 18 months.
This project addresses the following Goals from the Public Arts Strategic Plan (Attachment I.1):
Goal#5-I and Goal#8-IV: This project meets Goal#5 -I of “Create visibility through creative projects and initiatives” and Goal#8-IV of “Increase access to arts experiences and local public art”.
5. City Parks Project Description and Location:
To install appropriate public arts within the City parks (with community’s outreach/input, by collaboration with the Community Services Commission, and with coordination with the City’s Public Works Department) to give each City park a unique identity and to create and/or enhance gathering places that forms a sense of community, with community input to build trust, trigger curiosity, to connect the community, and to provide a place for meditation. The proposals could be but not limited to shade structure roof mural ( given the cultural significance of them), painted ball court, outdoor community library kiosks, walking labyrinth/maze (given the history of such structures), and floral sculptures.
I. Budget: Overall expected budget is $35,000.
II. Location(s): Yet to be decided by the stakeholders but a potential location could be Miles Avenue Park.
III. The artist Selection Method: Circulation of a Request For Proposals (RFP).
IV. Anticipated Timeline: 12 months.
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Goal #2 -I and Goal #6 -V: This project will meet Goal #2 -I of “Prioritize projects that are community focused” and Goal #6-V of “Distribute artwork in as many communities as possible ensuring access to the arts for all residents”.
6. Signage for the City’s Public Arts Collection Project Description and Location:
To create communication between the art and the viewer beyond the experience of seeing the work the City shall include signage for its Public Arts Commission that at least includes: name(s) of the artist(s), title of the artwork, the copyright symbol (©), the date of the artwork’s creation or installation, the name of the commissioning organization, one sentence of interpretive information, a list of material used to create the artwork, contact information for the owner and commissioning organization and the artwork’s accession number. The signage simply could be a QR c ode (providing all above noted information) next to the artist’s name and title of the artwork.
I. Budget: Overall expected budget to install signage for entire City’s Public Arts Collection will be $20,000.
II. Artist Selection Method: Circulation of a Request For Proposals (RFP) or by hiring a sign company.
III. Location: The entire City’s Public Arts Collection.
IV. Anticipate Timeline: 18 to 24 months.
This project addresses the following Goal from the Public Arts Strategic Plan (Attachment I.1):
Goal # 6 -III: The signage project meets Goal # 6 -III of “Support and share information about artwork accessible in other languages and adjusted for people with disabilities”.
7. Artistic Crosswalks Project Description and Location:
Artistic Crosswalks are to prom ote neighborhood identity and place making by using colors, textures, and patterns to enliven city streets as engaging and safe places for people. They can be designed to reflect the special character of a neighborhood, mark the gateway to an area, or otherwise create local identity and pride. They are playful, cost-efficient and low-maintenance tool to highlight marked pedestrian crossings. In addition to being fun, they raise awareness of pedestrian safety. Artistic crosswalks will only be considered at existing crosswalk locations and it will be done with coordination with the City’s Public Works.
I. Budget: Overall expected budget to install two (2) artistic crosswalks will be $5,000. One will be installed within the City’s downtown area and one will be installed within II. Artist Selection Method: Circulation of a Request For Proposals (RFP).
III. Location: Potential locations are the City’s Downtown area and Avenue 44.
IV. Anticipated Timeline: three (3) to six (6) months.
This project addresses the following Goals from the Public Arts Strategic Plan (Attachment I.1):
Goal#2-V, Goal#4 -IV, and Goal#4 -V: This project meets Goal#2 -V of “ Create and utilize existing community spaces for art, and Goal#4-IV of “Increase access to arts experiences and local public art” and Goal#4-Vof “Advocate for expanding access low income residents”.
8. Artist Registry Project Description and Location:
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To create and online and easy to access artist registry , where artists register by entering their contact information, images of their art, bios, and relevant experience, that made available to the City staff, the Public Arts Commission, and anyone else interested in the arts.
I. Budget: Overall expected budget is staff time.
II. Artist Selection Method: N/A
III. Location: City’s Website/Online.
IV. Anticipated Timeline: Fall of 2022
This project addresses the following Goal from the Public Arts Strategic Plan (Attachment I.1):
Goal#8-II: The above artist registry project meets Goal#8-II of “Establish artist registry of local and regional artists and update the list annually”.
9. Identifying Indio and the Coachella Valley Arts Organizations Project Description and Location:
To create an online list of local arts organizations to build stronger ties with the artists community, to establish networking, educational, and collaborative opportunities for the community, artists, the Public Arts Commission, and the City staff, as well as sharing solutions and discuss the direction of public art in our region.
I. Budget: Overall expected budget is staff time.
II. Artist Selection Method: N/A
III. Location: City’s Website/Online.
IV. Anticipated Timeline: Fall of 2022
This project addresses the following Goals from the Public Arts Strategic Plan (Attachment I.1):
Goal#1-I and Goal#3-II: This activity meets Goal#1-I of “Institute an Annual Artist Mixer for connecting and networking among the arts community” and Goal#3-II of “Share local, regional state and -educational and development, exhibition, wide professional opportunities with local artist on our platforms”.
10. Inspection, Inventory, Maintenance, and Conservation Project Description and Location:
Installation, maintenance, and care of public art begin before an artwork is created. During the design phase or when a donation is initiated, the City, artist or s ponsor will review and analyze their design proposal and advise on maintenance and operations of the artwork. On behalf of the City, artist or sponsor, the appropriate party will submit a Maintenance Plan to the Public Arts Commission. Staff will review and then catalogue any tasks associated with maintenance of the artwork.
Public art cannot remain in its original condition without ongoing maintenance. Many artworks require their artists to submit guidelines on the upkeep, maintenance, and material details of their work. It should be noted that the City has established a Deaccession Policy that allows removal of an artwork, if it has been damaged beyond repair, or if it endangers public safety.
I. Budget: As needed and up to $10,000 per year by approval of the Public Arts Commission.
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III. Location: Entire City’s Public Arts Collection.
IV. Anticipated Timeline: Ongoing and as described below:
• Evaluate the quality and sustainability of the proposed or existing public artwork. • Establish maintenance requirements, assign schedules, and identify potential costs. • Determine if the City should hire a professional company for assessment, conservation, and identify potential costs.
This project addresses the follo wing Value from the Public Arts Strategic Plan (Attachment I.1):
Value #4: The above will meet Value #4 of “Best practices is the commitment to the highest industry standard of operation and being held accountable to the process. Best practice includes pr ocess transparency, sustainable outcomes and quality aesthetics, and will inspire trust in our commission and serve as a catalyst for community growth.
This Value includes the Relevant Objectives of Collections management”.
TOTAL ANTICIPATED BUDGET:
Overall expected budget for this Work Plan is $500,000.
Any budgetary changes to the plan will require Public Arts Commission’s review and approval and may require the City Council approval.
ATTACHMENTS:
I.1. Public Arts Strategic Plan
I.2. Arts in Public Places Program
I.3. Entry Monument Project Location Map
I.4. CV Link Map
FINANCIAL DETAIL:
Current FY Financial
Impact:
$0 In current year budget: N/A
Current FY General
Fund Impact:
$0 Budget adjustment: No
Future FY Financial
Impact:
$500,000 For fiscal year: 21/22
Source of funds: Public Arts Fund Account number: 203-521064
Additional Financial Details:
Currently the Public Arts Fund includes $738,116.00 that has not been appropriated.
ATTACHMENTS:
Attachment I.1. Public Arts Strategic Plan
Attachment I.2. Arts in Public Places Program
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I.4. CV Link Map
APPROVAL(S):
Scott Trujillo, Deputy City Manager Approved - 24 Mar 2022 Roxanne Diaz, City Attorney Approved - 30 Mar 2022
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 01 Apr 2022 Bryan H. Montgomery, City Manager Approved - 01 Apr 2022
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Prepared by: Debra Alleyne
Public Art & Historic Preservation Management
Analyst
11/18/2020
Public Art Commission Strategic
Plan Draft
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The City of Indio City Council established the Public Arts and Historic Preservation commission in 2006. The charter that founded this body is Ordinance No. 1455 which established the Arts in Public Places Program (159.841), Purpose (159.840), The Art in Public Places Fund and, Program Allocation (159.843). This commission has served the council since then to support and make recommendations to the council on all matters related to public art in the city. These pivotal steps acknowledged the value of the art to the community and created the pathway for the city to embark on displaying public arts. To further this aim, the Public Art and Historical Preservation Commission was supported by a variety of staff within the Planning Department and freelance art consultants over the years.
In 2018 the City of Indio saw the need for staff support for the commission and created the Management Analyst position. In order to fulfil the purpose of the position, Debra Alleyne embarked on the first a strategic planning process with the now, Public Art Commission. The intent of this process was to revisit, define, refine and focus the commission’s efforts and evaluate the efficacy of established programs using a best practice approach.
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Commission Members
•Commissioner Venessa Becerra (Chair)
•Commissioner Thomas Buck ( Vice-Chair)
•Commissioner E.J. Neumeyer
•Commissioner William (Bill) Schinsky
•Commissioner Cecilia Cruz
•Commissioner Deborah Schwartz Glickman (serving from 2016 to 2019) Strategic Planning Adhoc Committee Members
•Commissioner Venessa Becerra (Chair)
•Commissioner Cecilia Cruz
Facilitator & Staff
Debra Alleyne, Public Art & Historic Preservation Management Analyst
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The Arts commission facilitated by the Public Arts Management Analyst participated in rigorous discussion to assess the current landscape facing the city, community and local artists and arts organizations. The fruits of these discussions shaped the tenets of this draft plan presented for review. The commission completed a series of work sheets (see attachment) together as well as had one on one facilitated sessions. These sessions covered the following:
•Introduction and goal setting guide
•Mission statement crafting
•Vision statement crafting
•Critical issues and problem deconstruction
•Problems to purpose ( one on one facilitation)
•Prioritization by Artistic, Community and internal impacts Midway through the process the commission, by consensus, formed an adhoc committee to continue the process to this point. This committee continued the facilitated sessions as follows:
•Values identification, definition and description
•Statement of goals
Collectively the commission spent approximately 20 hours and the adhoc committee spent 27 hours doing the difficult and taxing work and formulating the draft plan.
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See attached
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Mission
The mission of the Indio Public Arts Commission is to foster and advocate for arts, culture and history by providing: creative artistic opportunities, guidance to established and emerging artists and equitable access to resources for the enrichment of the Indio community.
Vision
The Public Arts Commission envisions that City of Indio will be the arts and entertainment hub for the Coachella Valley. We will be a tool for empowerment of our community, inspired by people and places unique to the city, and reflective of its residents’ history, identity and interests. This commission will advocate for diverse, innovative and creative artwork and programs that advance and uplift arts, culture and historic preservation
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The values are rooted in the mission but help move the commission to the vision.
We want to use these values to inform and constrain the kind of strategies we recommend and to hold ourselves accountable to both the city organization and the community. Here we state, define and identify associated behaviors that show what enacting the value would look like.
Value #1:
Community & Connection
Community is the heart of the City. Our people, our artists, our culture are all intertwined. As representatives of the community it is our responsibility to use the arts to create connection by building trust and relationships with artists and creatives, residents, and organizational and commercial partners. Therefore, we will commit to ensuring that community input is a valued part of our decision making processes by:
•Actively seeking community input
•Extending invitations to community groups to attend our meetings •Providing avenues for communication
•Incorporating community feedback in our work
Value #2:
Opportunity
Opportunity is the infrastructure for the arts. It provides a pathway to connect artists and partners to educational and entrepreneurial resources. It provides chances to inspire local and
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Therefore, we commit to providing opportunities for our artists community by investing in its:
•Employment
•Education
•Access to local, regional, national and global networks •Professional development (through grants, residencies, fellowships, etc.) Value #3:
Representation & Equity
Representation is the affirmation of the humanity and value of all our residents and that the arts reflect our richly diverse community. Equity ensures that all residents have access to the arts and are able to fully participate in processes and programming.
Therefore, we commit to ensure equitable access throughout our processes and outcomes by:
•Using inclusive language
•Seeking artists of diversity
•Decentralizing and democratizing the benefits of community artwork •Ensuring equitable access to resources and standardizing expectations for application •Providing a variety of opportunities for students, emerging artists and professionals Value #4:
Best Practices
Best practices is the commitment to the highest industry standard of operation and being held accountable to the process. Best practice includes process transparency, sustainable outcomes and quality aesthetics, and will inspire trust in our commission and serve as a catalyst for community growth. Therefore we commit to performing best practices and follow principles of sustainability by:
•Adhering to established values and goals
•Keeping informed about best practices and implementing new paradigms as needed •Operating synchronously with relevant stakeholders to secure optimal outcomes
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The stated goals are reflective of the values listed and defined in the previous section. These goals were created using the SMART method Specific, Measurable, Attainable, Relevant and Time Bound.
Goal #1
Foster the growth and development of a local, Indio arts community I. Institute an Annual Artist Mixer for connecting and networking among the arts community
II. Investigate possibilities for obtaining an arts community center for local arts organizations and/or artists to use for performances and exhibitions by 2023 III. Support the establishment/development of grassroots, nonprofit and for-profit arts organizations through foundation building processes
IV. Support or host accessible, affordable, arts-related activities in public spaces quarterly V. Develop the next generation of arts leadership by incorporating youth volunteers and ambassadors from local schools and the Teen Center
Goal #2
Build trust and a sense of community through the arts
I. Prioritize projects that are community focused
II. Explore an arts focused agenda with existing city community facilities III. Develop communication platforms for connecting with the community IV. Annually glean feedback from the community about projects V. Create and utilize existing community spaces for art
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Goal #3
Provide support and guidance for the development of the infrastructural needs of the arts industry
I. Support the arts at every level
II. Share local, regional and state-wide exhibition, professional development and educational opportunities with local artist on our platforms III. Support/ create a pathway for peer to peer support via peer review workshops, residencies and co-working spaces /collaboration
IV. Advocate for resource sharing for artist working spaces V. Provide resources for starting and maintaining a creative business VI. Explore nontraditional opportunities for artists within the municipal space e.g. Pairing artists with city departments to create materials, systems, etc.
Goal #4
Improve social and cultural vibrancy for residents
I. Create chances for the community members to express themselves artistically II. Create pathways for artists to use public space for creative endeavors III. Amplify existing events and include arts and cultural components IV. Increase access to arts experiences and local public art V. Advocate for expanding access low income residents
VI. Keep residents informed about arts and culture opportunities Goal #5
Make the arts representative of the Indio community
I. Create visibility through creative projects and initiatives II. Ensure that all commissions and acquisitions include diverse applicants
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IV. Create a sense of place by including a cultural/community relevance clause in all application forms for commissions and acquisitions
V. Embrace and amplify local arts and culture by providing at least one opportunity exclusively for local artists
VI. Develop an equity statement by the end of 2021
Goal #6
Provide equitable access to artwork, resources and programming I. Establish and maintain a transparent process for opportunities and application II. Provide guidance and support to artists as they pursue a professional career in public art III. Support and share information about artwork accessible in other languages and adjusted for people with disabilities
IV. Site artwork in accessible locations suitable for public interaction V. Distribute artwork in as many communities as possible ensuring access to the arts for all residents
Goal #7
Provide clarity and expected outcomes towards the goals of the Cultural Resources Element of the General Plan
I. Connect annually with the planning commission/staff about general plan expectations II. Connect annually with community services commission to discuss community engagement strategies for new art commissions, acquisitions III. Connect with City Council and leadership through quality and consistent dialogue about projects and initiatives and to share how the commission is achieving the general plan goals
IV. Develop and run a self-diagnostic on our annual activities to determine if we have met our goals
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Maintain up-to-date processes and procedures for the commission, artists and residents to engage with the city
I. Update city website and social media monthly with any new opportunities and information
II. Establish artist registry of local and regional artists and update the list annually III. Design standardized application forms, method of submittal and review for proposals IV. Create policies and procedural documents for the commission (e.g. deaccession policy, acquisition policy program guidelines) as necessary; publish documents on website and review documents annually to maintain industry standards
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PUBLIC ARTS COMMISSION
§ 32.11 PUBLIC ARTS COMMISSION; ESTABLISHMENT AND DUTIES.
The Public Arts Commission shall:
(A) Establishment. There is hereby established the Public Arts Commission. (B) Jurisdiction. The Public Arts Commission shall perform the following functions:
(1) Solicit artist proposals, select and recommend purchases of public art to the City Council.
(2) Review artwork proposed by developers under the Art in Public Places Program, as specified in §§ 159.840 through 159.844 of this Code, for aesthetic quality, maintenance requirements and appropriateness of the donation to the overall goals of the Art in Public Places Program and make a recommendation to the City Council. (3) Recommend sites for public art projects.
(4) Provide technical and aesthetic recommendations for all public and private public art projects.
(5) Review artist applications for participation in the Art in Public Places Artist Registry.
(6) Create and recommend policy in conformity with the Indio General Plan for visual arts.
(7) Perform such other functions as directed by the City Council. (8) Establish its own rules and procedures not inconsistent with the intent of this chapter or any other ordinances or laws of the city or state. (Ord. 1750, passed 4-15-20)
ART IN PUBLIC PLACES PROGRAM
§ 159.840 PURPOSE.
The City Council finds and declares:
(A) This chapter may be known and cited as the Indio Art in Public Places Program.
The city has developed a nationwide reputation through the annual International Tamale Festival, mural program, and other artistic events, that attract thousands of visitors every year to the city. The public health, safety and welfare, the preservation and enhancement of property values and economic vitality, as well as the popularity and prosperity of the community, are dependent upon and enhanced by visually pleasing and high quality public art.
(B) The stated goal of the Cultural Resources Element of the general plan is to provide enrichment of the community by adequate cultural and recreational facilities and
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The art in public places program is intended to achieve this purpose by providing visual art throughout the city.
(C) Residential and commercial development throughout the city will benefit from public art, both financially and visually. All property within the city will prosper through the enhancement and preservation of property values that will result from the location of visual art throughout the city. As such, the cost of providing public art should be shared. This program is a means of achieving a balanced responsibility of providing a cultural enhancement.
(D) Establishment of the Art in Public Places Program will promote the general welfare through balancing the community's physical growth with revitalization and its cultural and artistic resources.
(Ord. 1455, passed 2-1-06)
§ 159.841 ART IN PUBLIC PLACES PROGRAM ESTABLISHED.
The Art in Public Places Program is hereby established, which shall be applicable to public, residential, commercial and industrial. Each development subject to the program shall allocate a percentage of the costs of the development towards the placement of artwork within the development or elsewhere in the city, provided that a developer may pay a fee in lieu thereof. The allocation percentage is established in § 159.843.
(Ord. 1455, passed 2-1-06; Am. Ord. 1619, passed 9-19-12) § 159.842 ART IN PUBLIC PLACES FUND.
(A) There is hereby created a fund to be known as the “Art Fund” to account for fees paid pursuant to § 159.843. This fund shall be maintained by the City Finance Director and shall be used:
(1) For the design acquisition, commission, installation, improvement, maintenance and insurance of an artwork, including the development of a design concept and the preparation of construction drawings, which are separate and apart from the cost of the fabrication and installation of the artwork;
(2) For the acquisition and improvement of real property for the purpose of displaying artwork, which has been or may be subsequently approved by the city; (3) During a fiscal year, for maintenance of artwork purchased pursuant to division (A)(1) above;
(4) For costs associated with administering the Art in Public Places Program. (B) If real property purchased with monies from the Art Fund is subsequently sold, the proceeds from the sale shall be returned to the Art Fund.
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(A) The PROGRAM ALLOCATION is the percentage of the construction costs set aside for the Art in Public Places Program. All individual residential construction, rehabilitation or expansion with a building permit valuation of $100,000 or more will be assessed an amount equal to 1/4% for that portion of the permit valuation in excess of $100,000.
(1) All other residential development, including two or more single-family dwellings being built concurrently in the same tract by the same owner or contractor will be assessed an amount equal to 1/4% of the total building valuation, excluding land acquisition and off-street improvement costs.
(2) All public, industrial or commercial development will be assessed and amount equal to 1/2% of the total building valuation, excluding land acquisition and off-site improvement costs.
(3) The total building valuation shall consist of the dollar amount of all construction permits using the latest building valuation data, as set forth by the International Conference of Building Officials (ICBO), unless, in the opinion of the Building Official, a different valuation methodology is more appropriate for a particular project. (B) In lieu of placement or donation to the city of an approved artwork, the applicant may pay to the Art Fund an amount equal to the program allocation set forth in division (A) above. In lieu fees are due prior to the issuance of a building permit. (C) Nothing in this section shall prohibit the applicant from placing an approved artwork with acquisition and installation costs in an amount less than the program allocation, provided that the applicant shall also pay to the Art Fund an amount equal to the difference between the program allocation and the costs of acquisition and installation of such artwork.
(Ord. 1455, passed 2-1-06)
§ 159.844 AUTHORITY TO ADOPT GUIDELINES.
The City Manager shall have the power and authority to promulgate guidelines for the implementation of the Art in Public Places Program, and when duly promulgated, such rules and regulations shall be in full force and effect. (Ord. 1619, passed 9-19-12)
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ENTRY GATEWAY PUBLIC ART
MASTER PLAN
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PURPOSE & OVERVIEW
The City of Indio proposes to estab lish an entry gateway master plan in order to establish entry monument public art along prominent corridors and key entry points throughout the community. The purpose of the entry monuments are to welcome visitors and residents to the City by providing a positive and inspiring visual experience. The entry monuments are to include the combination of signage welcoming visitors and residents to the City of Indio and a public art piece.
The City’s entry monuments are categorized as primary and secondary monuments.
Primary monuments are to be placed a prominent City entry points either in close proximity to city limits or near Interstate 10. These monuments are intended to have a City sign and a pronounced public art piece. Secondary monument serve the same purpose as primary but are intended to be less pronounced and at a smaller scale. Secondary monuments may include a sign and separate public art piece or the sign itself could serve both purposes. Entry monuments are intended to not exceed the cost of $150,000 for primary monuments and $75,000 for secondary monuments.
Each entry monument is to be reviewed by the Public Arts and Historic Preservation Commission and approved by the City Council.
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SITE MAP
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PRIMARY ENTRY MONUMENTS
A. VARNER ROAD WEST SITE:
Monument art proposed to be placed at northeast corner of Varner & Newcastle intersection. Primarily intended to serve eastbound Varner Road traffic. May be able to be placed in existing ROW or small property acquisition needed.
B. JEFFERSON STREET & INDIO BLVD. SITE:
Monument art placed in Jefferson median south of Indio Boulevard. Primarily intended to serve southbound Jefferson Street traffic.
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C. JEFFERSON STREET & FRED WARING DRIVE SITE:
Monument art to be placed at southeast corner of intersection. Primarily intended to serve eastbound bound Fred Waring and southbound Jefferson Street traffic. Acquisition of real estate likely necessary.
D. JEFFERSON STREET & HIGHWAY 111 SITE:
Monument art to be placed in existing Highway 111 median east of Jefferson. Primarily intended to serve eastbound Highway 111 traffic.
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E. MONROE STREET (I-10) SITE:
Monument art to be placed adjacent to Monroe either on north or south side of Interstate
10. Primarily intended to serve traffic accessing community from I -10. Property acquisition necessary unless pla ced in median. Consider incorporating art into bridge/intersection design process.
F. JACKSON STREET & KENNER AVENUE SITE:
Monument art to be placed on City owned property adjacent to and west of Jackson .
Intended to primarily serve southbound Jackson traffic. Location to include multiple art sculptures in addition to monument sign.
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G. GOLF CENTER PARKWAY (I-10) SITE:
Monument art to be placed adjacent to Golf Center Parkway either on north or south side of Interstate 10. Primarily intended to serve traffic accessing community from I -10.
Property acquisition necessary unless placed in median. Consider incorporating art into bridge/intersection design process.
H. HIGHWAY 111 & AVENUE 48 SITE:
Monument to be placed in Highway 111 median north of Avenue 48. Primarily intended to serve northbound Highway 111 traffic.
Av
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I. MONROE STREET & AVENUE 52
Monument to be placed at the northeast corner of intersection. Developer (Shea Homes) has expressed interest in working with the City to establish monument when property is developed.
SECONDARY ENTRY MONUMENTS
a. JEFFERSON STREET & AVENUE 48
Monument to be placed at the northwest corner of the intersection. Limited space available and prop erty acquisition will be necessary. Likely to also conflict with landscape setting of abutting residential development (The Bridges).
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b. JEFFERSON STREET & AVENUE 50
Monument to be placed at the northwest corner of the intersection. Limited space available and property acquisition may be necessary. Existing commercial building will limit size and setting for art piece.
ORDER OF IMPLEMENTATION
The following is intended to represent the order in which the entry monuments are to be established. This is intended to serve as a recommendation with the Pu blic Arts & Historic Preservation Commission and City Council ultimately deciding implementation.
PRIMARY ENTRY MONUMENTS SECONDARY ENTRY MONUMENTS
1) Jefferson Street & Indio Blvd. a) Jefferson Street & Avenue 48 2) Jefferson Street & Highway 111 b) Jefferson Street & Avenue 50 3) Jackson Street & Kenner Avenue
4) Varner West Road
5) Highway 111 & Avenue 48
6) Monroe Street & Avenue 52
7) Jefferson Street & Fred Waring Drive
8) Monroe Street (I-10)
9) Golf Center Parkway (I-10)
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City Council
April 6, 2022
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Roxanne Diaz, City Attorney
Subject: Reconsideration of the circumstances of the COVID -19 state of emergency and determine that the legislative bodies of the City of Indio will continue to hold meetings via teleconferencing pursuant to the findings set forth in Government Code Section 54953(e)(3).
RECOMMENDATION:
City Council has (i) reconsidered the circumstances of the COVID -19 state of emergency; and (2) finds that the state of emergency continues to directly impact the ability of the members of the City’s legislative bodies to meet safety in person and Cal OSHA continues to recommend measures to promote social distancing.
SUMMARY:
To continue to have the ability to meet remotely pursuant Government Code Section 54953(e) (AB 361), the City Council must make certain finings no later than 30 days after teleconferencing for the first time pursuant to AB 361, and every 30 days thereafter. The City Council reconsiders the findings it previously made and then makes a determination of whether the State’s COVID -19 declared state of emergency continues to impact the ability of all of the members of the City’s legislative bodies from meeting sa fely in person and as a result of the state of emergency, meeting in person presents imminent risks to the health and safety of attendees. Accordingly, the City Council has previously held that the City's legislative bodies may continue to use virtual tele conferenced meetings in compliance with Government Code Section 54953(e).
BACKGROUND INFORMATION:
The City Council and its legislative bodies have met remotely throughout the pandemic to protect the health and safety of the public and staff. The factual circumstances exist for the City’s legislative bodies to continue to hold meetings pursuant to AB 361. The state of emergency is still in effect and the City Council has previously reconsidered the findings and determined that the state of emergency continues to directly impact the ability of members of the City's legislative bodies to meet safely in person.
While the Delta variant was the prevailing variant, recently the Omicron variant took over at during the holidays into the beginning of the year. While that has subsided, there is a new subvariant BA2, which is sometimes referred to as the "stealth omicron" and is a subvariant of Omicron. The BA2 variant now accounts for over half of the new COVID cases and is being watched closely in California and in several counties. In fact, on March 29th, the FDA and the CDC have now authorized an additional COVD-19 booster shot for people age 50 and older, as a step to offer extra protection for the most AGENDA ITEM #8.14
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Local health officials continue to be concerned that Riverside County's vaccination rates are far below statewide standards. In addition, Cal OSHA Emergency Temporary Standards continue to recognize the importance of social distancing and states that the fact that particles containing the virus can travel more than six feet, especially indoors, training and instruction should be given to employees in that regard as well as inform that physical dista ncing, face coverings, increased ventilation indoors, and respiratory protection decrease the spread of COVID -19 and are most effective when used in combination. For this week, in Indio, the 7 day positivity rate has increased by 1%.
Given that the universal mask mandate has recently been lifted and that the mask mandate at schools also has lifted, it remains prudent that we monitor and continue the flexibility of a hybrid format will allow the continuation of the City’s business so that Council or Commission meetings would not have to be cancelled should members have health concerns or are sick and would provide the flexibility to each member of a legislative body to determine for themselves based on their own health matters whether attending a meeting will be risk to their health and safety or to those attending the meeting.
Even if the City Council continues to make the findings as required, the City Council and each of the City’s commissions can continue to meet in person and the chambers can continue to stay open. This determination does not require that meetings only be held remotely. This determination, however, would allow the City to make adjustments if needed (temporarily closing the chambers to the public) should COVID-19 cases rise or new va riants threaten the health and safety of the public including staff and members of the City’s legislative bodies.
In conclusion, by reconsidering the circumstances of the state of emergency created by the COVID19 pandemic and finding that the state of em ergency continues to directly impact the ability of the members to meet safely in person, the public meetings of the City of Indio can continue to be conducted by Zoom for the next 30 days.
APPROVAL(S):
Roxanne Diaz, City Attorney Approved - 10 Feb 2022
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 11 Feb 2022 Bryan H. Montgomery, City Manager Approved - 11 Feb 2022
AGENDA ITEM #8.14
Reconsideration of the circumstances of the COVID-19 state of emergency ... Page 246 of 1245 City of Indio
City Council
April 6, 2022
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Rob Rockwell, Asst. City Manager & Dir. Of Finance Subject: Resolution 10271 authorizing the issuance and sale of City of Indio Pension Obligation Bonds; approving as to form and authorizing the execution and delivery of an indenture and a purchase contract; authorizing a validation action; and authorizing certain related actions.
RECOMMENDATION:
Adopt Resolution 10271 authorizing the issuance and sale of City of Indio Pension Obligation Bonds; approving as to form and authorizing the execution and delivery of an indenture and a purchase contract; authorizing a validation action; and authorizing certain related actions.
SUMMARY:
The City has an opportunity to refinance its unfunded pension liability at a lower interest rate through the issuance of Pension Obligation Bonds.
BACKGROUND INFORMATION:
At the November 3, 2021 City Council meeting, the Council adopted Resolution No. 10237 authorizing the Issuance of Pension Obligations Bonds at a not to exceed true interest cost of 4.0%. The City Council also directed staff and bond counsel to proceed with the Court validation proceedings. Due to various factors, including a four-month court delay due to COVID-19 effects on staffing, volatility in the municipal bond market due to the circumstances in Ukraine, as well as inflation, staff is asking the City Council for authorization to increase the not to exceed true interest c ost of the Bonds to 5.0% and resubmit the validation filings.
By way of background, based on actuarial reports dated July 2021, as of June 30, 2020, the City has approximately $75.29 million in unfunded pension obligations to the California Public Empl oyees’ Retirement System (CalPERS) with respect to safety and miscellaneous employees under the program of CalPERS, the “Unfunded Liability.” The City has an opportunity to refinance the Unfunded Liability by selling pension obligation bonds at a lower interest rate (currently estivated between 4.35% to 4.76%) than it currently pays to CalPERS. CalPERS amortizes the Unfunded Liability over a fixed period of time, charges the City a high rate of interest, and structures amortization payments in a way that is causing the City to face steep increases in pension expenses over the next 10 fiscal years.
In July 2021, the CalPERS discount rate was automatically lowered from 7.0% to 6.8% per the Funding Risk Mitigation Policy. This policy lowers the discount rate in years of good investment returns to reduce risk in the portfolio. The policy automatically lowered the discount rate when CalPERS achieved an investment return of 21.3% for fiscal year FY 2020 -21. At the November 2021 board AGENDA ITEM #9.1
Resolution 10271 authorizing the issuance and sale of City of Indio Pens... Page 247 of 1245 meetings, CalPERS voted to hold the current discount rate of 6.8% and adopted new actuarial assumptions. The new discount rate will not affect public agency employers until FY 2023 -24, which will be reflected in the July 1, 2022 annual valuation report. The July 1, 2021 annual valuation report for FY 2022-23 reflect the 7.0% discount rate.
It is important to note that the Unfunded Liability and related required annual payments are not static amounts. Each year, CalPERS adds new amortization bases to its pension plans to account f or actuarial gains and losses. The Unfunded Liability and related payments are: (1) increased if CalPERS performs worse than the actuarial assumptions or changes assumptions such as reducing the discount rate (6.8%), and (2) decreased if CalPERS performs b etter than actuarial assumptions and the investment returns exceed the discount rate of 6.8%. Actuarial assumptions include the investment rate of return (discount rate), assumed salary increases, retirement rates, mortality, and various other factors. As an example, the actual investment return of 21% by CalPERS in FY 2020-21 will result in a new Unfunded Liability layer for the outperformed investment return, which will be reflected in the CalPERS annual valuation reports dated July 2022; but will be mit igated by the reduction in the discount rate to 6.8%, which will add an additional negative base. Even if CalPERS performs precisely at its actuarial assumptions, the City’s existing Unfunded Liability will be charged an annual interest rate of 7.0% (soon to be 6.8% beginning Fiscal Year 2023-24). The below table provides a summary of the City’s actual Unfunded Liability balance as of June 30, 2020 and the estimated balance as of June 30, 2021, for the City’s Miscellaneous and Safety plans.
Actual UAL Ba lance
as of 6/30/2020
Estimated UAL Balance
as of 6/30/2021
Miscellaneous Plan $32,582,938 $25,310,000
Safety Plans 42,708,630 33,670,000
Total $75,291,568 $58,980,000
The City Council can authorize the refinancing of the Unfunded Liability by issuing Bonds and taking certain other actions in connection therewith, specifically, authorizing staff to undertake a Validation Action to Validate the Bonds and the Unfunded Liability as an obligation imposed by law on the City, as further discussed below.
The City Council adopted a retirement plan pursuant to the Public Employees’ Retirement Law, commencing with Section 20000 of the Government Code of the State of California, as amended (the “Retirement Law”). The Retirement Law obligates the City to: (1) m ake annual contributions to CalPERS, to fund pension benefits for its employees, (2) amortize the unfunded accrued actuarial liability with respect to such pension benefits, and (3) appropriate funds for the purposes described in (1) and (2).
The City is obligated to make certain payments to CalPERS in respect of the Unfunded Liability under the Retirement Law and CalPERS Contract. Based on current actuarial assumptions, the issuance of the proposed Bonds to refund the Unfunded Liability of the Miscellan eous Plan and the Safety Plan, and the other actions contemplated by the Resolution, are anticipated to reduce costs for the City over the term of the Bonds. Because current interest rates in the taxable municipal bond market are lower than the rate the C ity currently pays (7.0% soon to be 6.8%) on the Unfunded Liability to CalPERS, the City has an opportunity to refinance the Unfunded Liability at a lower interest rate (4.35% to 4.76% true interest cost were used to calculate these estimates). Ultimate savings are subject to change and are dependent upon numerous factors, including prevailing interest rates at the time of the sale of the Bonds and the repayment structure chosen. Generally, c urrent estimates show that refinancing the City’s Unfunded Liabili ty by issuing Pension Obligation Bonds could produce cumulative savings of
AGENDA ITEM #9.1
Resolution 10271 authorizing the issuance and sale of City of Indio Pens... Page 248 of 1245 approximately $6.85 million over the 20-year life of the Bonds—with a financial Present Value savings of approximately $9.3 million—when compared to the current CalPERS amortization requirements.
Authorizing the issuance of the Bonds and the undertaking of the Validation Action (as described below) will create the opportunity for the City to enter the capital markets - after the successful conclusion of the Validation Action - and sell the Bonds if interest rates are within the range set by the Resolution.
If approved by the City Council, the Resolution authorizes the City to bring an action to validate the Unfunded Liability and the Bonds, as well as an Indenture, which is the d ocument that sets forth the terms of the proposed Bonds, detailing such things the City’s obligation to make payments, how and when those payments are made, early prepayment provisions and various other attributes of the Bonds and their security structure. The validation action will be brought by the City under Section 860 of California Code of Civil Procedure in connection with the Bonds. A validation action is a typical step with respect to the issuance of pension obligation bonds, whereby the City will be asserting that the obligation under the Retirement Law is one imposed by law. A validation action is recommended in connection with the Bonds, in order to ensure that the Bonds, if and when issued and delivered, will constitute valid and legally binding obligations of the City, pursuant to the Constitution of the State of California and the Retirement Law. The obligation of the City to pay the Bonds will not be limited as to payment from any special source of funds. After the validation proceeding is f inished, the City Council will need to approve a preliminary official statement and a continuing disclosure undertaking.
ATTACHMENTS:
Reso 10271 authorizing POBs and Validation Action (4_6_2022) (2)
APPROVAL(S):
Roxanne Diaz, City Attorney Approved - 31 Mar 2022
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 01 Apr 2022 Bryan H. Montgomery, City Manager Approved - 01 Apr 2022
AGENDA ITEM #9.1
Resolution 10271 authorizing the issuance and sale of City of Indio Pens... Page 249 of 1245 RESOLUTION NO. 10271
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO,
CALIFORNIA, AUTHORIZING THE ISSUANCE AND SALE OF CITY
OF INDIO PENSION OBLIGATION BONDS, APPROVING AS TO FORM
AND AUTHORIZING THE EXECUTION AND DELIVERY OF AN
INDENTURE AND A PURCHASE CONTRACT, AUTHORIZING A
VALIDATION ACTION, AND AUTHORIZING CERTAIN RELATED
ACTIONS
Recitals:
WHEREAS, the City of Indio (the “City”) has previously adopted a retirement plan pursuant to the Public Employees’ Retirement Law, commencing with Section 20000 of the Government Code of the State of California, as amended (the “Retirement Law”) and elected to become a contracting member of the California Public Employees’ Retirement System (“PERS”); and
WHEREAS, the Retirement Law and the contract (the “PERS Contract”) between the Board of Administration of PERS and the City Council of the City (the “City Council”) effective January 1, 1957, as amended from time to time, obligate the City to (i) make contributions to PERS to fund pension benefits for certain City employees, (ii) amortize the unfunded accrued actuarial liability with respect to such pension benefits, and (iii) appropriate funds for the foregoing purposes; and
WHEREAS, pursuant to Articles 10 and 11 (commencing with Section 53570) of Chapter 3 of Division 2 of Title 5 of the California Government Code (the “Act”), the City desires to authorize the issuance of its City of Indio Pension Obligation Bonds, Series 2022 (Taxable) (the “Bonds”), in a maximum principal amount not to exceed that required to pay all or a portion of the unfunded accrued actuarial liability of the City (the “Unfunded Liability”) with respect to pension benefits under the Retirement Law and the PERS Contract and, at the option of the City pursuant to Section 4 hereof, to pay all or a portion of the costs of issuance of such Bonds, including the underwriter’s discount and any original issue discount on such Bonds; and
WHEREAS, the City expects that the need may arise in the future to issue additional refunding bonds (the “Additional Bonds”) pursuant to the Act to amortize the accrued and Unfunded Liability of the City to PERS as required by the Retirement Law and the PERS Contract and to fund all or a portion of the normal contributions required by the PERS Contract; WHEREAS, in order to provide for the authentication and delivery of the Bonds and to establish and declare the terms and conditions upon which the Bonds and Additional Bonds are to be issued and secured, the City proposes to enter into an Indenture with U.S. Bank National Association, as trustee (such Indenture, in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the “Indenture”); and
WHEREAS, the City has determined that securing the timely payment of the principal of and interest on the Bonds by obtaining a bond insurance policy with respect thereto could be economically advantageous to the City; and
AGENDA ITEM #9.1
Resolution 10271 authorizing the issuance and sale of City of Indio Pens... Page 250 of 1245 -2-
WHEREAS, to facilitate the issuance of the Bonds, the City desires to approve the form of a Purchase Contract (such Purchase Contract, in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the “Purchase Contract”); and
WHEREAS, there has been prepared and submitted to this meeting the forms of the Indenture and the Purchase Contract; and
WHEREAS, at a subsequent meeting, the City Council of the City (the “City Council”) will be asked to approve a Preliminary Official Statement and a Continuing Disclosure Agreement to be used in connection with the offer and sale of the Bonds; and WHEREAS, the City has determined the advisability of filing an action to determine the validity of the Bonds, the Additional Bonds, the Indenture, and the actions proposed to be taken in connection therewith; and
WHEREAS, on April 5, 2017, the City Council approved a debt management policy (the “Debt Policy”) in furtherance of Section 8855(i) of the California Government Code, as amended by SB 1029, enacted as Chapter 307, Statutes of 2016; and WHEREAS, in accordance with Section 5852.1 of the Government Code of the State of California, as amended by SB 450, enacted as Chapter 625, Statutes of 2017, the City has obtained from its Municipal Advisor the required good faith estimates, and such estimates are disclosed and set forth in Exhibit A attached hereto; and WHEREAS, all acts, conditions and things required by the laws of the State of California to exist, to have happened and to have been performed precedent to and in connection with the consummation of the financing authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the City is now duly authorized and empowered, pursuant to each and every requirement of law, to consummate such financing for the purpose, in the manner and upon the terms herein provided;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. Recitals. The above recitals, and each of them, are true and correct.
Section 2. Debt Policy. The City Council hereby determines that (a) the Debt Policy is consistent with the requirements of Government Code Section 8855(i), and (b) the proposed Bonds to be issued in accordance with the parameters set forth in this Resolution are consistent with the Debt Policy.
Section 3. Issuance of the Bonds. The issuance of the Bonds on the terms and conditions set forth in, and subject to the limitations specified in, the Indenture, is hereby authorized and approved. The Bonds shall be dated, shall bear interest at the rates, shall mature on the dates, shall be subject to call and redemption, shall be issued in the form, and shall be as otherwise provided in the Indenture, as the same shall be completed as provided in this Resolution. The Bonds may be issued as a single issue, or in separate series, as determined by the City Manager in consultation with Bond Counsel to comply with applicable law. In that regard, the City hereby approves and affirms the appointment in connection with the issuance of
AGENDA ITEM #9.1
Resolution 10271 authorizing the issuance and sale of City of Indio Pens... Page 251 of 1245 -3-
such Bonds of Fieldman Rolapp & Associates, to act as municipal advisor (the “Municipal Advisor”), and Richards, Watson & Gershon, A Professional Corporation, to act as bond counsel and disclosure counsel (“Bond Counsel”).
Section 4. Indenture. The Indenture, proposed to be entered into by and between the City and U.S. Bank National Association, as trustee, in the form presented and on file with the City Clerk, is hereby approved. The Mayor (or in her absence, the Mayor Pro Tem) and the City Manager (or in his absence, the Assistant City Manager) (each, an “Authorized Officer”), are each hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Indenture in substantially said form, with such changes therein as the Authorized Officer executing the same may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof; provided, however, that (a) the aggregate principal amount of the Bonds shall not be greater than the lesser of (i) $80 million or (ii) the Unfunded Liability as calculated by PERS or other actuary selected by the Authorized Officer, together with the costs of issuing the Bonds (including the underwriter’s discount on the Bonds and any bond insurance premium) as may be determined at the option of the City (with the authorization for such determination hereby delegated to the City Manager and the Finance Director of the City), plus any original issue discount on the Bonds, (b) the true interest cost to the City on the Bonds shall not exceed 5.0%, (c) the Bonds shall mature not later than the last date through which PERS has determined for the amortization of the Unfunded Liability of the City in accordance with its current procedures (or, if applicable, any PERS alternative amortization schedule adopted the City), and (d) the Underwriter’s discount for the purchase of the Bonds shall not to exceed 0.5% of the principal amount of the Bonds. The Authorized Officers are, and each of them is, hereby authorized and directed, for and in the name of the City, to execute and deliver the Bonds in the form attached to the Indenture, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Bonds by such Authorized Officer.
Section 5. Authorization for Additional Bonds. The City hereby authorizes and approves the issuance of Additional Bonds pursuant to the Act, as authorized by the Indenture, from time to time, to refund all or a portion of the Unfunded Liability, provided that the City Manager, or its designee, first certifies to the Council in writing that such actions will result in cost savings to the City. The City authorizes any one of the Authorized Officers, or their designees, to execute and deliver one or more other indentures and/or one or more supplemental agreements supplementing or amending the Indenture and providing for the issuance of Additional Bonds (each an “Supplemental Indenture”); provided, however, that (i) each series of Additional Bonds shall be in a principal amount not to exceed the sum of the Unfunded Liability of the City to PERS under the PERS Contract and the Retirement Law remaining unpaid on the date of issuance of such Additional Bonds, the obligation to PERS for the then-current fiscal year pursuant to the PERS Contract, and the costs of issuing the Additional Bonds including the underwriter’s discount as may be determined at the option of the City (with the authorization for such determination hereby delegated to the City Manager and the Finance Director of the City), (ii) the stated interest rate on the Additional Bonds shall not exceed the discount rate assumed by PERS with respect to the amortization of the Unfunded Liability at the time such Additional Bonds are issued, and (iii) the Additional Bonds issued pursuant to such Supplemental Indenture shall mature not later than the earlier of 30 years from the date of their issuance or the last date through which PERS has determined for the amortization of the Unfunded Liability of the City in accordance with its then current procedures (or, if applicable, any PERS alternative amortization schedule adopted the City).
AGENDA ITEM #9.1
Resolution 10271 authorizing the issuance and sale of City of Indio Pens... Page 252 of 1245 -4-
Each Unfunded Liability refunded by the Bonds and each series of Additional Bonds pursuant to the Indenture and each Supplemental Indenture constitutes an obligation imposed by law, pursuant to the Constitution and laws of the State of California and an obligation of the City not limited as to payment from any special source of funds. The Unfunded Liability refunded by the Bonds pursuant to the Indenture and each series of Additional Bonds pursuant to an Supplemental Indenture shall not, however, constitute an obligation of the City for which the City is obligated or permitted to levy or pledge any form of taxation or for which the City has levied or pledged or will levy or pledge any form of taxation.
Section 6. Municipal Bond Insurance. The Authorized Officers are each hereby authorized and directed to apply for municipal bond insurance for the Bonds and to obtain such insurance if the present value cost of such insurance is less than the present value of the estimated interest savings with respect to the Bonds. The Authorized Officers are each hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver a contract for such insurance if such contract is deemed by the Authorized Officer executing the same to be in the best interests of, and economically advantageous to, the City, such determination to be conclusively evidenced by such Authorized Officer’s execution and delivery of such contract.
Section 7. Purchase Contract. The Purchase Contract proposed to be entered into by and between the City and an underwriter or underwriters to be selected by the City (the “Underwriter”), in the form presented and on file in the office of the City Clerk, is hereby approved. Subject to the parameters specified in Section 4 above, each Authorized Officer, acting singly, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Purchase Contract in substantially said form, with such changes therein as the Authorized Officer executing the same may approve (such approval to be conclusively evidenced by such Authorized Officer’s execution and delivery thereof).
Section 8. Validation Action. The City Council hereby authorizes Bond Counsel (as defined in Section 2), for and in the name of the City, to bring a judicial validation action under and pursuant to the provisions of Sections 860 et seq. of the California Code of Civil Procedure to determine the legality and validity of the Bonds, the Indenture, and the other documents and proceedings authorized pursuant to this Resolution. The City Council further authorizes the Authorized Officers and all other officers, employees and agents of the City to take any and all actions, including the execution and delivery or appropriate documentation, as may be required to conclude such judicial validation action.
Section 9. Senate Bill 450 (Chapter 625 of the 2017-2018 Session of the California Legislature) (“SB 450”) requires that the governing body of a public body obtain from an underwriter, financial advisor or private lender and disclose, before authorizing the issuance of bonds with a term of greater than 13 months, certain good faith cost estimates. Set forth in attached Exhibit A, which is incorporated by reference, are good faith estimates of: (a) the true interest cost of the Bonds, (b) the sum of all fees and charges paid to third parties with respect to the Bonds, (c) the amount of proceeds of the Bonds expected to be received net of the fees and charges paid to third parties, and (d) the sum total of all debt service payments on the Bonds calculated to the final maturity of the Bonds, plus the fees and charges paid to third parties not paid with the proceeds of the Bonds.
AGENDA ITEM #9.1
Resolution 10271 authorizing the issuance and sale of City of Indio Pens... Page 253 of 1245 -5-
Section 10. Other Acts. The Authorized Officers and all other officers of the City, are hereby authorized and directed, jointly and severally, to do any and all things which they may deem necessary or advisable in order to consummate the transactions herein authorized and otherwise to carry out, give effect to and comply with the terms and intent of this Resolution, including, but not limited to, the preparation of an Official Statement (and a Preliminary Official Statement) for use in connection with the offering and sale of the Bonds, and all actions heretofore taken by the officers, employees and agents of the City with respect to the transactions set forth above are hereby approved, confirmed and ratified.
Section 11. Effective Date. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED by the City Council of the City of Indio at a meeting held on the 6th day of April, 2022, by the following vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
______________________________
Waymond Fermon, Mayor
ATTEST:
Cynthia Hernandez, CMC, City Clerk
APPROVED AS TO FORM:
____________________________________
Roxanne M. Diaz, City Attorney
AGENDA ITEM #9.1
Resolution 10271 authorizing the issuance and sale of City of Indio Pens... Page 254 of 1245 -6-
EXHIBIT A
GOOD FAITH ESTIMATES
The following information was obtained from Fieldman Rolapp & Associates, the City’s municipal advisor, with respect to the Bonds approved in the attached Resolution, and is provided in compliance with Senate Bill 450 (Chapter 625 of the 2017-2018 Session of the California Legislature) with respect to the Bonds:
1.True Interest Cost of the Bonds. Assuming an aggregate principal amount of Bonds of $76,640,000 are sold and based on market interest rates prevailing at the time of preparation of this information, a good faith estimate of the true interest cost of the Bonds, which means the rate necessary to discount the amounts payable on the respective principal and interest payment dates to the purchase price received for the Bonds, is 4.76%.
2.Finance Charge of the Bonds. Assuming an aggregate principal amount of Bonds of $76,640,000 are sold and based on market interest rates prevailing at the time of preparation of this information, a good faith estimate of the finance charge of the Bonds, which means the sum of all fees and charges paid to third parties (or costs associated with the Bonds), is $1,348,432.
3.Amount of Proceeds to be Received. Assuming an aggregate principal amount of Bonds of $76,640,000 are sold and based on market interest rates prevailing at the time of preparation of this information, a good faith estimate of the amount of proceeds expected to be received by the City for sale of the Bonds less the finance charge of the Bonds described in 2 above and any reserves or capitalized interest paid or funded with proceeds of the Bonds, is $77,988,432.
4.Total Payment Amount. Assuming an aggregate principal amount of Bonds of $76,640000 are sold and based on market interest rates prevailing at the time of preparation of this information, a good faith estimate of the total payment amount, which means the sum total of all payments the City will make to pay debt service on the Bonds plus the finance charge of the Bonds described in paragraph 2 above not paid with the proceeds of the Bonds, calculated to the final maturity of the Bonds, is $123,117,951.
Attention is directed to the fact that the foregoing information constitutes good faith estimates only. The actual interest cost, finance charges, amount of proceeds and total payment amount may vary from the estimates above due to variations from these estimates in the timing of Bond sales, the amount of Bonds sold, the amortization of the Bonds sold, whether or not a municipal bond insurance policy will be available for purchase by the City, and market interest rates at the time of each sale. The date of sale and the amount of Bonds sold will be determined by the City based on the amount required to pay off the Unfunded Liability, and other factors.
The actual interest rates at which the Bonds will be sold will depend on the bond market at the time of each sale. The actual amortization of the Bonds will also depend, in part, on market interest rates at the time of sale. Market interest rates are affected by economic and other factors beyond the City’s control.
AGENDA ITEM #9.1
Resolution 10271 authorizing the issuance and sale of City of Indio Pens... Page 255 of 1245 City of Indio
City Council
April 6, 2022
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Kevin H. Snyder, Dir. Of Community Development Subject: Revised Resolution No. 10254 re -approving the revised version of Housing Element 2021-2029 in response to required revisions from the State Office of Housing and Community Development and re -adopting the prior Negative Declaration
RECOMMENDATION:
Adopt Revised Resolution No. 10254 re-approving the revised version of Housing Element 2021-2029 in response to required revisions from the State Office of Housing and Community Development and re-adopting the prior Negative Declaration
SUMMARY:
On September 18, 2019, the City Council adopted the City of Indio General Plan 2040. On January 5, 2022, the City Council adopted Resolution No. 10254 approving a General Plan Amendment to adopt the 2021 -2029 Housing Element, which is one of the required e lements of the General Plan.
The The Housing Element addresses the comprehensive housing needs in Indio for the 2021 -2029 planning period. In this regard, the California State Department of Housing and Community Development has provided a Regional Housing Needs Allocation (RHNA) to the Southern California Association of Governments (SCAG) that has assigned the City of Indio with a RHNA allocation of 7,812 housing units in the City for the 2021-2029 planning period of which 2,963 or 38% of the housing units must be affordable. On January 5, 2022, the Indio City Council approved Resolution No. 10254 approving a General Plan Amendment adopting the Housing Element 2021 -2029 and adopting a Negative Declaration. Subsequently, the City submitted the Housing Element 2021-2029 to the State of California Department of Housing and Community Development for review and certification. On March 22, 2022, the State of California Department of Housing and Community Development notified the City of the need for non -substantive revisions to the adopted Housing Element in order to obtain required agency certification. These minor revisions consisted of clarifications to the applicable Housing Element programs in order to highlight the fair housing issue, contributing factor(s), a nd the program/action types that aim to further fair housing in the City, pulling information previously identified in the appendices of the Housing Element into the Plan’s Goals, Policies, and Programs. These changes do not change the intent of the Housin g Element or commit the City to any further actions throughout the planning period. Accordingly, staff is requesting that the City Council re -approve the revised Housing Element 2021 -2029 in order to obtain certification from the State Office of Housing and Community Development.
BACKGROUND INFORMATION:
State law requires that each city adopt a General Plan to guide land use and development. Among the seven (7) required "elements" of the General Plan is the Housing Element. The Housing Element AGENDA ITEM #10.1
Revised Resolution No. 10254 re-approving the revised version of Housing... Page 256 of 1245 sets forth goals, policies and programs that address the future housing needs for all income levels over an eight (8) year planning period which coincides with a Regional Housing Needs Assessment (RHNA) projection period. The RHNA is mandated by State Housing Law as part of the periodic process of updating local housing elements of the General Plan. RHNA quantifies the need for housing within each jurisdiction during specified planning periods.
The Housing Element implements the declaration of State law that, " the availability of housing is a matter of vital Statewide impo1tance and the attainment of decent housing and a suitable living environment for all Californians is a priority of the highest order" (Gov. § Code 65580). Provisions in the Housing Element are mo re specific and directive than other elements and contain detailed guidance Community and Housing Department the of also law The reviews. and provides Development (HCD) with unique authority over the Housing Element.
Government Code Sections 65353 through 65355 require:
• The Planning Commission to hold at least one (1) public hearing before approving a recommendation on the amendment to the General Plan.
• The Planning Commission to make a written recommendation on the amendment to the General Plan. A re commendation for approval shall be made by affirmative vote of not less than a majority of the total membership of the Commission. The Planning Commission shall send its recommendation to the legislative body (the City Council).
• The City Council to hold at least one (1) public hearing prior to amending a General Plan.
Recent State Housing Laws:
The following recently -adopted housing laws have established new housing element requirements related to affordability, no net loss, facilitation of ADU's, and Affirmatively Furthering Fair Housing component, and addressing special-needs populations.
• By-Right Approval of Projects with 20 Percent Affordable to Lower Income Households (AB 1397) required for:
• Reusing vacant sites used in the 4th and 5th cycle Housing Elements and non -vacant sites used in the 5th cycle Housing Element.
• Rezoning of sites to accommodate the RHNA.
• Monitoring of No Net Loss (SB 166) - Develop a procedure to monitor for No Net Loss. When the sites in the inventory are developed, the City must monitor the number and income level of the units built, compared to the Housing Element assumptions for the sites. If a shortfall in sites is identified due to developments at market yielding fewer or no affordable units, the City must make findings that the City's sites inventory continues to have adequate capacity for the remaining RHNA, identify replacement sites, or rezone/upzone within six months to replenish the sites inventory.
• Replacement Housing (AB 1397) - As a condition of project approval, development on a residential site that currently has existing units must replace the units that are deed restricted for or occupied by lower income households. The replacement requirements under AB 1397 are the same with Density Bonus law.
AGENDA ITEM #10.1
Revised Resolution No. 10254 re-approving the revised version of Housing... Page 257 of 1245 • Facilitation of ADUs - As of January 1, 2020, AB 68, AB 587, AB 670, AB 671, AB 881, and SB 13 each changed requirements on how local governments can and cannot regulate ADUs, with the goal of increasing statewide availability of smaller, more affordable housing units. The Housing Element must ensure consistency with state requirements and must include incentives to facilitate the development of affordable ADUs and a monitoring of ADU trends to ensure consistency with assumptions in the Housing Element.
• Affirmatively Furthering Fair Housing (AB 686) - The Housing Element must include an AFFH analysis that looks at existing conditions regarding segregation and concentration of pove1ty, and the distribution of the sites inventor y. The Housing Element needs to identify actions that the City will unde1take to foster housing mobility, facilitate neighborhood improvements, mitigate displacement, and provide housing choices in areas with access to oppo1tunity.
Zoning Revisions for Special Needs Populations:
• AB 139 (Emergency Shelters) - Revise parking standards for the emergency shelter overlay to be based on staffing level instead of shelter capacity.
• AB 101 (Low Barrier Navigation Centers) - Revise zoning code to pe1m it low barrier navigation centers (tempora1y housing for those at risk of homelessness) by right in mixed use/non - residential zones that allow housing.
• AB 2162 (Supportive Housing) - Revise zoning code to pe1mit suppo1tive housing meeting specific criteria in multi -family and mixed -use zones. If the specific supportive housing is located within a half mile from transit, no minimum parking can be re required.
The Housing Element planning periods are sometimes referred to as "cycles." The City's existing housing element covers the planning period extending from 2013 -2021, which is referred to as the "Fifth Cycle Housing Element" in reference to the five (5 ) required updates that have occurred since the comprehensive revision to the State Housing Element law in 1980. Every city and county in the Southern California Association of Government (SCAG) region is required to prepare a Housing Element update for the sixth planning cycle, which spans the 2021 -2029 period (October 15, 2021 - October 15, 2029). The due date for the sixth Housing Element Update is October 15, 2021. State law includes a 120-day grace period for this deadline, in accordance with SB 375 (2008).
It is worth noting that the Housing Element is not an ordinance. It does not set any development standards and it does not rezone any prope1iies mentioned within it. Instead, as a part of the General Plan, the Housing Element is a policy document. It sets the framework for what the City sets out to accomplish during the life cycle of the Housing Element. For example, one of the requirements of the Housing Element is to identify a list of properties that could conceivably be developed with housing between 2021 and 2029 to meet the City's share of the Regional Housing Needs Allocation (RHNA).
It does not ensure the units will be built, however, and it does not require the City itself to build them.
The RHNA is set through a State -mandated process by the Southern California Association of Governments (SCAG) to ensure that cities and counties are planning for the development of enough housing to accommodate all economic segments of the community. The City does not dete1mine the RHNA numbers, rather, the numbers are developed by the State of California and assigned to individual jurisdictions through SCAG. For the sixth housing cycle, HCD has mandated SCAG to allocate 1,344,740 units throughout the region. Under the SCAG sixth cycle final RHNA, the City i s required to plan for 7,812 housing units in the City between 2021 and 2029 of which 2,963 or 38% of the housing units must be affordable.
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The City’s 6th Cycle RHNA targets are broken down by income level, as follows:
Extremely Low-Income 896
Very Low-Income 897
Low Income 1,170
Moderate Income 1,315
Above Moderate Income 3,534
Upon City Council adoption, the Housing Element will be sent to HCD for certification, after which the certification process will be complete. However, the Housing Element can be amended as appropriate up to four times per year, since it is part of the General Plan. Each year, the City is required to assess its progress toward meeting the goals and implementing the programs contained within the Housing Element through the Annual Progress Report (APR) process, which is submitted to HCD and the Governor's Office of Planning and Research by April 1 of each year. Following approval of the Housing Element by HCD, the City will proceed with the programs and necessary action s as defined in the certified document.
The City must adequately plan for its existing and projected housing needs, including its share of the RHNA, as identified by the State with input from the Southern California Association of Governments and local cities and counties. Although the City does not build housing that is privately owned or owned by other government agencies, the State requires each jurisdiction to demonstrate where housing can reasonably be expected to be added within this cycle, and how the City will facilitate and incentivize its Sixth Cycle RHNA targets are broken down by income level, as follows: As identified by the 6th Cycle RHNA, the City must plan for 7,812 housing units, which are further broken down by income level based on area median income for households.
AnnualIncome Limits forRiverside County for Four-Person Households (2020) IncomeCategory Percentof Area MedianIncome AnnualHousehold Income Extremely Low 0–30% $26,200
Very Low-Income 31–50% $37,650
Low Income 51–80% $60,250
Moderate Income 81–120% $90,350
Area MedianIncome 100% $75,300
Source: U.S.Department of Housingand Urban Development, State Income Limits2020.
The 2021-2029 Housing Element identifies existing and future housing needs (RHNA) of all types for persons of all economic groups in the City. The purpose of the Housing Element requirements is to develop an understanding of the existing and projected housing needs within the community and to set forth policies, programs and schedules that promote the preservation, rehabilitation and development of a va1iety of housing types and co sts throughout Indio. Cities must carry o ut an assessment of housing needs and an inventory of resources and constraints pertinent to the meeting of these needs. Indio 's draft 2021-2029 Housing Element consists of the following four (4) chapters and six (6) supporting appendices:
Chapter 1: Introduction provides an overview of the Housing Element, its relationship to State law, the City’s RHNA, and the organization of the Housing Element.
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Chapter 3: Goals and Policies specifies the City’s pla ns for meeting the existing and projected comprehensive housing needs of Indio.
Chapter 4: Program Implementation identifies the specific actions that will be implemented to ensure that Indio’s housing needs are met within the planning period.
Appendix A: 5th Cycle Review evaluates the efficacy of the 5th Cycle Housing Element; the progress in implementation; and the appropriateness of the goals, policies, and programs.
Appendix B: Community Profile provides detailed information on the City’s demographic characteristics and trends that influence supply and demand of various housing types.
Appendix C: Constraints and Zoning Analysis details governmental and non -governmental constraints to the maintenance, improvement, and development of housing for all income levels.
Appendix D: Affirmatively Furthering Fair Housing Analysis identifies disproportionate housing needs, including segregated living patterns, concentrated areas of poverty, disparities in access to opportunity, and displacement risk.
Appendix E: Sites Analysis and Inventory describes the methodology by which the City can accommodate its RHNA targets and how any unmet need will be met, and provides an inventory of the sites identified to meet the housing need.
Appendix F: Community Engagement Summary provides the detailed results and materials of the outreach conducted for the update to the Housing Element.
Housing Element Goals, Policies and Programs:
Local governments have the responsibility to adopt programs that implement the goals, policies and programs of the Housing Element through their vested powers, particularly over land use and development and and concessions regulatory controls, incentives, financial utilization the of resources. Programs are the specific action steps the locality will take to implement its policies and achieve its goals and objectives. Programs must include a specific period for implementation to have a beneficial impact toward the goals and objectives during the planning period. Programs must also identify the agencies or officials responsible for implementation. Effective program descriptions also include immediate, short -te1m and long -te1m action steps, proposed measurable outcomes, objectives or perfo1mance measures, and specific funding sources, where appropriate (Gov. Code §65583(c).
The draft 2021-2029 Housing Element identifies 37 programs as follows:
Program 1: Accessibility
Program 2: Accessory Dwelling Unit Assistance and Incentives Program 3: Accessory Dwelling Unit Permitting
Program 4: Affordable Homeownership Opportunities
Program 5: Analysis of Impediments to Fair Housing Choice
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Program 7: By-Right Development
Program 8: Code Compliance
Program 9: Density Bonus
Program 10: Development Fees
Program 11: Development Incentives and Programs
Program 12: Development Permit Streamlining
Program 13: Employee Housing
Program 14: Energy Conservation
Program 15: External Funding Opportunities
Program 16: Fair Housing Referral and Mediation
Program 17: Housing Assistance Resources
Program 18: Preservation of Affordable Housing Units
Program 19: Housing Rehabilitation
Program 20: Increased Transparency
Program 21: Local Housing Trust Fund
Program 22: Low-Barrier Navigation Centers
Program 23: Minimum Unit Sizes
Program 24: No Net Loss
Program 25: Objective Development Standards
Program 26: Ongoing Code Updates
Program 27: Place-Based Strategies
Program 28: Reasonable Accommodation Procedures
Program 29: Reduced Parking Requirements
Program 30: Replacement Requirements
Program 31: Rezoning Opportunities
Program 32: Section 8: Housing Choice Voucher
Program 33: Site Inventory Zoning Update Program
Program 34: Supportive Housing
Program 35: Surplus Lands
Program 36: Water and Sewer Priority Services
Program 37: Zoning Code Updates for the Removal of Constraints
FINDINGS AND CONCLUSIONS
A. GENERAL PLAN:
The elements that comprise the City’s General Plan are required by State law to be internally consistent. Together these elements provide the framework for the development of facilities, services, and land uses necessar y to address the long -term needs of the City’s current and future residents, property owners, and businesses. To ensure that these needs are clearly addressed throughout the General Plan, the elements must be interrelated and interdependent.
The City’s c urrent General Plan was adopted on September 18, 2019, and establishes the community’s vision for Indio through 2040. The 2040 General Plan was developed in response to changing trends and to align goals and policies with the aspirations and values of residents, property owners, businesses, and organizations within the community. The updated General Plan sets a visionary framework for an aspirational Housing Element that provides meaningful pro - housing policies and programs to comprehensively address the housing needs of Indio.
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The Housing Element 2021 -2029 is most directly related to the Land Use Element as it is the Land Use Element that designates the location and extent of residential development throughout the City.
This Housing Element is internally consistent with the goals and policies of the other elements of the General Plan. The following analysis of applicable goals, policies and programs contained in the General Plan 2040 was conducted to demonstrate consistency between the General Plan and th e Housing Element. It should be noted that this analysis addresses key consistencies between the General Plan and Housing Element specifically as it relates to proposed policies for the Housing Element. While not every proposed Housing Element policy is addressed, there is overall consistency between existing General Plan goals and policies and Housing Element Goals and Polices. The analysis is provided below.
Goal LU-1: Citywide Urban Structure: An urban structure that enhances the quality of life of residents, meets the community’s vision for the future, and weaves new growth areas together with established Indio neighborhoods.
LU-1.1: Overall city structure. Establish a clearly defined City structure by [please note that only relevant policy elements for this particular policy are noted]:
Creating mixed-use corridors along Highway 111, Monroe Street, Avenue 42, and Avenue 44 that contain a mix of retail, service, office, and residential uses. Corridors should have defined nodes that provide a mix of local- and regional-serving uses.
Investing in existing residential neighborhoods adjacent to Downtown and Midtown.
Infilling new residentia l neighborhoods arranged around neighborhood centers and community gathering spaces, such as schools and parks.
Finding (s):
The Housing Element 2021 -2029 specifies Goals and Policies that address this specific Land Use Element Goal and Policy of the ado pted General Plan. Proposed Goal 2 of the Housing Element specifies a goal of an affordable housing supply that meets the needs of extremely low, very low, low and moderate income households. Proposed Polices 2.2, 2.3 and 2.6 address Goal LU -1/Policy LU-
1.1 by directing the City to attract affordable and mixed-income housing developers through processes and regulations that streamline and simplify the fabrication of housing production, encouraging affordable and mixed-income developments that increase oppor tunities for extremely low and lower income households to access resources in high opportunity areas and specifying investments in infrastructure and the provision of subsidies that offset the cost of affordable housing development and preservation.
Conclusion (s):
As demonstrated in the findings, a broad cross -section of the proposed policies in the Housing Element 2021 -2029 address the Goal LU -1/Policy LU -1.1 and support the interrelated and interdependent relationship between the Element and the Land Use Element of the adopted General Plan. The Housing Element 2021 -2029 is therefore consistent with the adopted General Plan 2040 and specifically Goal LU-1/Policy LU-1.1.
Goal LU-2: Active Places. Indio is a City with active and comfortable places th at encourage social interaction and community gathering.
LU-2.2: Balanced Land Uses: Maintain a balanced land use pattern to support a broad range of housing choices, retail businesses, employment opportunities, educational and cultural institutions,
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Finding (s):
The Housing Element 2021 -2029 specifies Goals and Policies that address this specific Land Use Element Goal and Policy of the ad opted General Plan. Proposed Goal 1 of the Housing Element specifies a goal of an adequate supply and diverse range of housing types that align with the needs of all households. Proposed Polices 1.1 1.2 1.4, 1.5 1.6, 1.9 and 1.10 address Goal LU -2/Policy LU-
2.2. Proposed Policies 4.2 and 4.4 also address Goal LU-2/Policy LU-2.2. Proposed Policies 6.1, 6.2 and 6/5 also address the aforementioned Goal and Policy. Proposed Policy 1.1 encourages the incentivization and facilitation of the production of multi-family development in areas where it is needed most. Proposed Policy 1.2 specifies programs that incentivize housing produced through streamlined processes, regulatory relief and increased development flexibility. Proposed Policy 1.4 specifies the facilitation of housing development for vulnerable and special needs populations through programs that incentivize housing to meet these needs. Proposed Policy 1.5 specifies the facilitation of the planning, approval and construction of housing that meets a wide ran ge of needs for a variety of household types creating balanced communities. Proposed Policy 1.6 specifies that the City should identify and evaluate options to increase housing opportunities in areas planned and zoned for single- family residential densities. Proposed Policy 1.9 specifies that the City should monitor development activity and rezone sites as necessary to ensure no net loss of housing capacity through the planning cycle especially for sites identified to accommodate lower income RHNA. Proposed Policy 1.10 specifies the engagement in planning processes that identify opportunities for increased housing capacity especially in areas near resources and amenities such as transit, schools, retail uses, public uses, and areas of employment. Proposed Po licy 4.2 specifies increased opportunities for homeownership for lower and moderate income households. Proposed Policy 4.4 specifies increased housing opportunities for lower-income households, especially within high-resource areas and areas with access to opportunities. Proposed Policy 6.1 promotes equitable and fair housing opportunities for all persons regardless of race, color, religion, sex or gender identity, national origin or ancestry, marital status, age, ability or disability, household compositio n or size, or any other protected characteristics. Proposed Policy 6.5 specifies fostering neighborhoods that include affordable, senior and accessible housing options, and analyze equity and inclusion through all planning efforts.
Conclusion (s):
As demonstrated in the findings, a broad cross -section of the proposed policies in the Housing Element 2021 -2029 address the Goal LU -2/Policy LU -2.2 and support the interrelated and interdependent relationship between the Element and the Land Use Element of the adopted General Plan. The Housing Element 2021 -2029 is therefore consistent with the adopted General Plan 2040 and specifically Goal LU-2/Policy LU-2.2.
Goal LU-6: Enhance Existing Neighborhoods. A City with well -maintained residential neighborhoods that support Downtown and Midtown.
LU-6.1: Maintenance: Support the ongoing maintenance and improvement of existing residential properties; in particular, encourage property owners to maintain and improve their front yards and building facades.
Finding (s):
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Conclusion (s):
As demonstrated in the findings, a broad cross -section of the proposed policies in the Housing Element 2021 -2029 address the Goal LU -6/Policy LU -6.1 and support th e interrelated and interdependent relationship between the Element and the Land Use Element of the adopted General Plan. The Housing Element 2021 -2029 is therefore consistent with the adopted General Plan 2040 and specifically Goal LU-6/Policy LU-6.1.
Goal LU-7: New Neighborhoods. Neighborhoods that provide a variety of housing types, densities, designs and mix of uses and services that support healthy and active lifestyles.
LU-7.2: Balanced Neighborhoods: Within the allowed densities and housing types, promote and allow for a range of housing and price levels within each neighborhood to accommodate diverse ages and incomes. For development projects larger than 5 acres, require that a diversity of housing types be provided and that these housing types be mixed rather than segregated by unit type.
LU-7.3: Housing Affordability: Ensure affordable housing is distributed throughout the City to avoid concentrations of poverty and to be accessible to jobs.
LU-7.13 Density bonuses . Support projects that see k for density bonuses for affordable housing, special-needs housing, childcare, and senior housing.
Finding (s):
The Housing Element 2021-2029 specifies Goals and Policies that address these specific Land Use Element Goal and Policies of the adopted General Plan. Proposed Policies 1.1, 1.3, 1.4, 1.5, 1.10,
2.1, 2.2, 2.3, 2.4, 2.5, 2.7, 3.1, 3.2, 3.3, 4.1, 4.2, 4.4, 5 .1, 5.5, 6.1, 6.4 and 6.5 address Goal LU - 7/Policies 7.2, 7.3 and 7.13. Policy 1.1 encourages the incentivization and facilitation of the production of multi -family development in areas where it is needed most. Proposed Policy 1.3 specifies the investment in infrastructure in areas planned for higher -density and affordable housing production.
Proposed Policy 1.4 specifies the facilitation of housing development for vulnerable and special needs populations through programs that incentivize housing to meet th ese needs. Proposed Policy 1.5 specifies the facilitation of the planning, approval and construction of housing that meets a wide range of needs for a variety of household types creating balanced communities. Proposed Policy 1.10 specifies the engagement i n planning processes that identify opportunities for increased housing capacity especially in areas near resources and amenities such as transit, schools, retail uses, public uses, and areas of employment. Proposed Policy 2.1 specifies offsetting the cost of affordable housing development through development permit process improvements to maximize permitting efficiencies, regulatory relief, development flexibility and opportunities for environmental streamlining. Proposed
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Proposed Policy 2.3 encourages affordable and mixed -income developments that increase opportunities for extremely low and lower income households to access resources in high-opportunity areas. Proposed Policy 2.4 promotes affordable alternative forms of housing especially for the creation of more lower-cost owner-occupied housing types. Proposed Policy 2.5 seeks to ensure there is an adequate supply of short -term and long -term housing to meet the needs of vulnerable and special needs populations. Proposed Policy 2.7 seeks to ensure that affordable housing is not lost through redevelopment that provides only market-rate housing by enforcing affordable housing replacement and preservation requirements. Proposed Policy 3.1 encourages the maintenance and repair of existing owner and renter-occupied housing to prevent the deterioration of the housing stock through educational resources, code enforcement and funding resources. Proposed Policy 3.2 specifies the preservation and rehabilitation of housing for lower -income households especially in affordable housing that is at risk of converting to market rate housing. Proposed Policy 3.3 specifies assistance for older adults and those with special needs with home retrofits to increase accessibility. Proposed Policy 4.1 specifies support and bolstering of tenant -based rental assistance to increase housing access for lower-income households. Proposed Policy 4.2 specifies the increase of opportunities for homeownership for lower and moderate income households. Proposed Policy 4.4 specifies increased housing opportunities for lower-income households, especially within high-resource areas and areas with access to opportunities. Proposed Policy 5.1 specifies equitably investing in communities by strengthening resources and opportunities in disadvantaged or under -resourced areas. Proposed Policy 5.5 specifies the attenuation of displacement risks through an increase in the supply of rent - restricted housing units especially in areas with planned or existing resources such as public transportation, parks, schools, employment and infrastructure. Proposed Policy 6.1 promotes equitable and fair housing opportunities for all persons regardless of race, color, religion, sex or gender identity, national origin or ancestry, marital status, age, ability or disability, household composition or size, or any other protected characteristics. Pr oposed Policy 6.4 specifies the identification of existing and new funding streams to target investments in lower-income communities and areas with affordable housing. Proposed Policy 6.5 specifies fostering neighborhoods that include affordable, senior an d accessible housing options, and analyze equity and inclusion through all planning efforts.
Conclusion (s):
As demonstrated in the findings, a broad cross -section of the proposed policies in the Housing Element 2021-2029 address the Goal LU-7/Policies LU-7.2, 7.3 and 7.13 and support the interrelated and interdependent relationship between the Element and the Land Use Element of the adopted General Plan. The Housing Element 2021-2029 is therefore consistent with the adopted General Plan 2040 and specifically Goal LU-7/Policies LU-7.2, 7.3 and 7.13.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) COMPLIANCE:
Pursuant to the provisions of CEQA Guidelines Section 15070 -15075, the City conducted an initial study and determined that the General Plan Amendment - Housing Element Update will not have significant impact on the environment. Staff concluded that the updated Housing Element will provide the capacity to accommodate the RHNA for the planning period with the necessary goals and policies to ensure adequate development of housing for the City during the housing cycle and further that the updated Housing Element is a policy document, and its adoption would not result in any direct or indirect physical impacts because no development or construction is authorized by this action and that that the preparation of an Environmental Impact Report (EIR) is not required. Accordingly, the City prepared a Negative Declaration and on August 17, 2021, a Notice of Intent to Adopt a Negative
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The City Council adopted on January 5, 2022 a Negative Declaration pursuant to the provisions of CEQA Guidelines Section 15070 -15075 concluding that the Housing Element 2021 -2029 would not have significant impact on the environment. The California State Department of Housing and Community Development has notified the City of Indio of the need for non-substantive revisions to the adopted Housing Eleme nt in order to obtain required agency certification. These minor revisions consisted of clarifications to the applicable Housing Element programs in order to highlight the fair housing issue, contributing factor(s), and the program/action types that aim t o further fair housing in the City, pulling information previously identified in the appendices of the Housing Element into the Plan’s Goals, Policies, and Programs. These changes do not change the intent of the Housing Element or commit the City to any fu rther actions throughout the planning period . Therefore, the Director of Community Development has determined that the requested revisions from the State Office of Housing and Community Development do not substantively change the prior environmental analysis and Negative Declaration determination and concludes that no further environmental analysis is required. Therefore, re-adoption of the previous Negative Declaration for the revised Resolution is appropriate.
ATTACHMENTS:
AttacmentA_RevisedResolutionNo10254ExhibitA_Indio6thCycleHousingElement AttachmentB_Revised Indio 6th Cycle Housing Element_MarkedUp
APPROVAL(S):
Kevin H. Snyder, Dir. Of Community Development Approved - 30 Mar 2022 Bryan H. Montgomery, City Manager Approved - 31 Mar 2022
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1 REVISED RESOLUTION NO. 10254
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO,
CALIFORNIA, MAK ING AN ENVIRONMENTAL DETERMINATION
UNDER CEQA AND RE-APPROVING THE REVISED GENERAL
PLAN HOUSING ELEMENT 2021 -2029 IN RESPONSE TO
REQUIRED REVISIONS FROM THE STATE OFFICE OF HOUSING
AND COMMUNITY DEVELOPMENT AND RE-ADOPTING A
NEGATIVE DECLARATION
WHEREAS, the General Plan Housing Element serves as a policy guide to address the comprehensive housing needs of the City of Indio; and,
WHEREAS, the Housing Element does not build new units, but rather provides a plan of action for producing housing of all types and income levels in the City; and,
WHEREAS, the components of the Housing Element are largely dictated by the State of California and typic ally must include a detailed analysis of the City’s demographic, economic, and housing characteristics, a comprehensive analysis of the barriers to producing and preserving housing, a review of the City’s progress in implementing current housing policies a nd programs, an identification of goals, objectives, and policies, in addition to a full list of programs that will implement the vision of the plan; and a suitable sites inventory that could accommodate new housing thereby demonstrating the City’s ability to meet the quantified housing number established in the Regional Housing Needs Assessment (RHNA); and
WHEREAS, the Housing Element is a required element of the City’s General Plan, however it is provided under separate cover due to the need for frequent updates and to facilitate compliance with State reporting requirements ; and,
WHEREAS, the City of Indio currently has an adopted Housing Element (2013 - 2021) that must be updated to comply with the statutory requirements for the Sixth Cycle Housing Element process mandated by the State of California; and,
WHEREAS, the State of California sets the total number of units that each region in California must build and the Southern California region has to plan for over 1.3 million units; and,
WHEREAS, the Southern California Association of Governments (SCAG) is the regional planning agency that identifies and assigns the number of housing units each local government must plan for and identified in October 2020 that the City of Indio must plan for the production of 7,812 housing units in the City between 2021 and 2029 of which 2,963 or 38 percent must be affordable; and,
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2 WHEREAS, the City’s Sixth Cycle RHNA targets are broken down by income level inclusive of 896 extremely low-income housing units, 897 very low-income housing units, 1,170 low-income housing units 1,315 moderate income housing units and 3,534 above moderate income housing units; and,
WHEREAS, in accordance with State Law, the City must adopt and received state certification of its Housing Element by no later than February 12, 2022; and,
WHEREAS, the Housing Element Update is organized into five sections and six appendices, inclusive of a pro-housing statement, General Plan consistency, goals and policies and program implementation; and,
WHEREAS, the Program Implementation Section is a table of all programs proposed in the 2021-2029 Housing Element Update; and,
WHEREAS, the Housing Element Goals present the City’s housing priorities and their associated objectives, policies, programs, and proposed activities; and,
WHEREAS, the City of Indio conducted substantive public outreach and community engagement for the Housing Element Update throughout out 2020 and 2021 that as a d irect result of the COVID -19 pandemic stay-at-home orders provided the City with opportunities to explore new avenues for public engagement and increased access for those who are traditionally not involved in the planning process; and,
WHEREAS, the public outreach and community engagement effort were held across a variety of platforms, including a dedicated City website with project information and different avenues to provide public comment, a community survey, three virtual community workshops, two join t City Council and Planning Commission study sessions, multiple public review periods for publicly issued documents and formally noticed public hearings for the Planning Commission and City Council that contributed to a set of meaningful goals, policies, a nd programs that reflect the City’s housing needs and the priorities and needs of all of those in the City, including those with special needs and lower-income populations; and,
WHEREAS, pursuant to the provisions of CEQA Guidelines Section 15070 - 15075, the Director of Community Development has determined that the General Plan Amendment - Housing Element Update will not have significant impact on the environment. The Director of Community Development concludes that the updated Housing Element will provide the capacity to accommodate the RHNA for the planning period with the necessary goals and policies to ensure adequate development of housing for the City during the housing cycle and furt her that the updated Housing Element is a policy document, and its adoption would not result in any direct or indirect physical impacts because no development or construction is authorized by this action and that that the preparation of an Environmental Impact Report (EIR) is not required.
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3 WHEREAS, on August 17, 2021, the City of Indio issued and circulated for a 30-day public review and comment period a Notice of Intent to Adopt a Negative Declaration and Initial Study for the Housing Element Update with the public comment period began on Tuesday, August 17, 2021 and ended on Monday, September 20, 2021; and,
WHEREAS, on November 24, 2021, a notice of public hearing for the December 8, 2021 Planning Commission public hearing for the proposed General Plan Amendment for the Housing Element was published in the Desert Sun, the newspaper of record and a notice of the Planning Commission’s public hearing was posted on the City website and on the City’s social media platforms and interested parties that had previously requested to be via electronic mail message were also notified of the public hearing; and,
WHEREAS, on December 8, 2021, the Planning Commission for the City of Indio conducted a duly noticed public hearing, and following the close of the public hearing and deliberation, recommended to the City Council the approval of the General Plan Amendment adopting the City of Indio Housing Element 2021-2029 as set forth in Exhibit “A” and adoption of a Negative Declaration and Initial Study for the Housing El ement 2021-2029; and,
WHEREAS, on December 22, 2021, a notice of public hearing was published in the Desert Sun, the newspaper of record for the City Council’s January 5, 2022 public hearing, and a notice of the City Council’s public hearing was posted on the City website and on the City’s social media platforms and interested parties that had previously requested to be via electronic mail message were also notified of the public hearing; and,
WHEREAS, as with other elements of the General Plan, the Hous ing Element Update provides the policy framework for future planning decisions and identifies a series of implementation steps intended to meet the goals, objectives, and policies within the Housing Element Update; and,
WHEREAS, as with other elements of the General Plan, the Housing Element Update provides the policy framework for future planning decisions and identifies a series of implementation steps intended to meet the goals, objectives, and policies within the Housing Element Update; and
WHEREAS, The City’s updated Housing Element will serve as the City’s housing plan for 2021-2029, setting clear goals and objectives on meeting the housing needs of all segments of the population and preventing the displacement of existing residents; and
WHEREAS, on January 5, 2022, the City Council adopted Resolution No. 10254 approving a General Plan amendment to adopt the Housing Element 2021 -2029 and adopting a Negative Declaration; and,
AGENDA ITEM #10.1
Revised Resolution No. 10254 re-approving the revised version of Housing... Page 269 of 1245
4 WHEREAS, on March 22, 2022, the State of California Department of Housing and Community Development notified the City of the need for non-substantive revisions to the adopted Housing Element in order to obtain required agency certification. These minor revisions consisted of clarifications to the applicable Housing Element programs in order to highlight the fair housing issue, contributing factor(s), and the program/action types that aim to further fair housing in the City, pulling information previously identified in the appendices of the Housing Element into the Plan’s Goals, Policies, and Programs. These changes do not change the intent of the Housing Element or commit the City to any further actions throughout the planning period; and,
WHEREAS, in order to ensure that these non -substantive revisions are incorporated into and made part of the City’s adopted Housing Element that will be further reviewed by the Department of Housing and Community Development for certification, the re-adoption of a revised Resolution No. 10254 is required so that the revised Housing Element is adopted by the City Council;
WHEREAS, the adoption of a revised Resolution No. 10254 support s the City’s efforts to obtain the required certification of the Housing Element from the State Office of Housing and Community Development; and,
WHEREAS, on March 25, 2022, a notice of public hearing was published in the Desert Sun, the newspaper of record, for the City Council’s April 6, 2022 public hearing, and a notice of the City Council’s public hearing was posted on the City website.
WHEREAS, the City C ouncil conducted a public hearing on April 6, 2022 and following its conclusion voted to adopt Revised Resolution No. 10254 approving the revised Housing Element 2021 -2029 and re-adopting the previously approved Negative Declaration.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA, HEREBY RESOLVES, FINDS AND DETERMINES AS FOLLOWS:
Section 1. The City Council hereby specifically finds that all of the facts set forth in the recitals of this revised Resolution are true and correct, are incorporated into this Resolution by reference and constitute a material part of this Resolution.
Section 2. Based upon the evidence presented during the noticed April 6, 2022 public hearing, the City Council hereby finds that the revised Housing Element 2021-2029 is consistent with the General Plan as follows:
1. The elements that comprise the City’s General Plan are required by State law to be internally consistent. Together these elements provide the framework for the development of facilities, services, and land uses necessary to address the long- term needs of the City’s current and future residents, property owners, and