Indio City Council
November 16, 2022

AGENDA ITEM #9.10
Ratification of the purchase of park furniture in the amount of $329,909... Page 161 of 300 s ozonflrm
QUOTATIONAUTHORIZEDSALESPERSONSIGNATURETimL.Hudson10/24/22OutdoorCreationsInc2270BarneyRoadAnderson,CA96007USApH#[email protected],CityofWaterAuthority83101Avenue45lndio,CA92201USA SalesRepTimLHudsonQtyUOM4EA<Each>4EA2EA<Each>
<Each>EAEA<Each>1<Each>
Model#100PS8CastInLogoCustom411CastInLogoCustomCoilRodSmoothFinishNANOTanShipping GoodThru11/23/22
Date:10/24/22QuoteNoQ5608FX#530-365-5129
SHIPTOMilesAvePark-lndioMikeEdgar760-250-3528medgar@indioorgIndio,CA92201 TermsNet30DaysDescription92"SmoothTopPicnicTableFSlegsCastInLogo(6ColorpaintedCityLogoononeLeg)PaintchargeforLogo24"x84"FlatbenchwithoutarmrestCastInLogo(6ColorpaintedCityLogoononeLeg)PaintchargeforLogoCoilRodSmoothFinishNano-Non—sacrificialsealerODCTanColorMustBeTaxed,CompanyOwnedTruck PLEASEFILLINTHEREQUIREDINFORMATIONONTHEADDITIONALPAGEWITHTHETERMSANDPleaseyourorderandacknowledgethatyouhavereadandunderstandourtermsandconditionsForkliftrequiredupondeliveryunlessotherarrangementsmadepriortoorder.STANDARDDELIVERY/-\.R.OANDAPPROVEDSUBMITTALS/ORDERIS16-WEEKS(Doesnotapplytocustomproducts) SubtotalSalesTaxTOTAL
0’‘I00II}I5NC.INS
PurchaseOrder
UnitPrice1,050.00
1800079000
180.00
1,350.00
Amount4,200.00
720.001,580.00
360.00
1,35000
8,21000718.388,928.38

AGENDA ITEM #9.10
Ratification of the purchase of park furniture in the amount of $329,909... Page 162 of 300 QUOTATIONAUTHORIZEDSALESPERSONSIGNATURETimL.Hudson10/27/22OutdoorCreationsInc.2270B Rd Date:10/27/22arneyoa _Anderson,CA96007 Q”°t°N°"Q5609USAPH#530-365-6106FX#[email protected] SHIPTOlndio,Cityof MilesAveParkAnnex-lndio. MikeEdgar760-250-3528WtAtht ..831:1A$encII<le!t5me5I9a'@'"d'°'°'9lndio‘CA92201 Indio,CA92201USA SalesRep GoodThruI TermsTimLHudson 11/26/22Net30DaysQtyUOMModel# Description3EA101FSS 72"SmoothTopPicnictableFSlegs<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)3EACustom PaintchargeforLogo6EA503Waste Squarereceptaclew/reveal3EA503LIDBLUE503LIDBLUE(GR1372-BLO1)3EA503LIDBRONZE503LIDBRONZE(GR1372-BR340)3<Each>CastInLogo CastInLogo(RecycleLogoPaintedBlue)3<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)TrashReceptacleonly3EACustom PaintchargeforLogo<Each>CoilRod CoilRodEASmoothFinishSmoothFinishEANANO Nano-Non-sacrificialsealer<Each>Tan ODCTanColor1<Each>ShippingMustBeTaxed,CompanyOwnedTruck FILLINTHEREQUIREDINFORMATIONONTHEADDITIONALPAGEWITHTHETERMSIONS.nheretoconfirmyourorderaidacknowledgethatyouhavereadandunderstandourtermsandconditionsForkliftrequiredupondeliveryunlessotherarrangementsmadepriortoorder.STANDARDDELIVERYAR0ANDAPPROVEDSUBMITTALS/ORDERIS16-WEEKS(Doesnotapplytocustomproducts) SubtotalSalesTaxTOTAL
III’I‘I00II]INC.(INS
PurchaseOrderUnitPrice1,085.00
180.0069500
180.00
2,025.00
Amount3,255.00
540.004,170.00
54000
2,025.00
10,530.009213811,451.38

AGENDA ITEM #9.10
Ratification of the purchase of park furniture in the amount of $329,909... Page 163 of 300 U!RE)CONDITION.

QUOTATIONAUTHORIZEDSALESPERSONSIGNATURETimL.Hudson1o/19/22(2)2“;‘:)°|;"C'ea:;°":'"°' Date:10/19/22arneyoa _Anderson,CA96007 Q”°‘°N°"Q5610USApH#530-365-6106FX#[email protected] SHIPTOlndio,Cityof DominguezPark-lndio. MikeEdgar760-250-3528WtAtht ..83151’A‘Jen‘i.’;’45me.dsar@'nd'°.°r9Indie‘CA92201 Indio,CA92201USA SalesRep GoodThru TermsTimL.Hudson 11/18/22Net30DaysQtyUOMModel# Description8EA100FSS 92"SmoothTopPicnicTableFSlegs<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)8EACustom PaintchargeforLogo6EA408B 26"x84"ContourBenchwithcenterarmrest<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)6EACustom PaintchargeforLogo4EA411 24"x84"Flatbenchwithoutarmrest4<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)4EACustom PaintChargeforLogo12EA503Waste Squarereceptaclew/reveal6EA503LIDBLUE503LIDBLUE(GR1372-BL01)6EA503LIDBRONZE503LIDBRONZE(GR1372-BR340)6<Each>CastInLogo CastInLogo(RecycleLogoPaintedBlue)6<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)TrashReceptacleonly6EACustom PaintchargeforLogo<Each>CoilRod CoilRodEASmoothFinishSmoothFinishEANANO Nano-Non-sacrificialsealer<Each>Tan ODCTanColor1<Each>ShippingMustBeTaxed,CompanyOwnedTruck PLEASEFILLIN INFORMATIONONTHEADDITIONALPAGEWITHTHETERMSAND SubtotalSalesTaxPleasesignheretoconfirmyourorderandacknowledgethatyouhavereadandTOTALunderstandourtermsandconditionsForkliftrequiredupondeliveryunlessotherarrangementsmadepriortoorder.STANDARDDELIVERYA.R.OANDAPPROVEDSUBMITTALS/ORDERIS16-WEEKS(Doesnotapplytocustomproducts) 0'I‘MN!ICI5NC.‘IINS
PurchaseOrder
UnitPrice1,050.00
180.00940.00180.00790.00180.00695.00
180.00
6,750.00
Amount8,400.00
1,440.005,640.001,080.003,160.00720.008,340.00
1,080.00
6,750.00
36,610003,203.3839,813.38

AGENDA ITEM #9.10
Ratification of the purchase of park furniture in the amount of $329,909... Page 164 of 300 QUOTATIONAUTHORIZEDSALESPERSONSIGNATURETimL.Hudson10/19/22OutdoorCreationsInc.2270BarneyRoadAnderson,CA96007USAPH#[email protected],CltyofWaterAuthority83101Avenue45Indio,CA92201USA SalesTimLHudsonQtyUOM3EA<Each>EAEAEAEA<Each><Each>
_x_x_x_.yg(,;
<Each>EAEA<Each>1<Each>
PLEASEFILLINANDCONDITPleasesign
Model#100FSSCastInLogoCustom503Waste503LIDBLUE503LIDBRONZECastInLogoCastInLogo CustomCoilRodSmoothFinishNANOTanShipping
yourorderandacknowledgethatyouhavereadandunderstandourtermsandconditionsForkliftrequiredupondeliveryunlessotherarrangementsmadepriortoorder.STANDARDDELIVERYAR0ANDAPPROVEDSUBMITTALS/ORDERIS16-WEEKS(Doesnotapplytocustomproducts) GoodThru11/18/22
Date:10/19/22QuoteNo.:Q5611FX#530-365-5129
SHIPTOBurrPark—IndioMikeEdgar760-250-3528medgar@indioorgIndio,CA92201 TennsNet30DaysDescription92"SmoothTopPicnicTableFSlegsCastInLogo(6ColorpaintedCityLogoononeLeg)PaintchargeforLogoSquarereceptaclew/reveal503LIDBLUE(GR1372—BL01)503LIDBRONZE(GR1372—BR340)CastInLogo(RecycleLogoPaintedBlue)CastInLogo(6ColorpaintedCityLogoononeLeg)TrashReceptacleonlyPaintchargeforLogoCoilRodSmoothFinishNano—Non—sacrificialsealerODCTanColorMustBeTaxed,CompanyOwnedTruck REQUIREDINFORMATIONONTHEADDITIONALPAGEWITHTHETERMSSubtotalSalesTaxTOTAL 0’‘I00II]I§I\'I‘"NSt\‘l}.

PurchaseOrder
UnitPrice1,050.00
180.00695.00
18000
1,125.00
Amount3,150.00
540.001,390.00
18000
1,125.00
6,385.00558696,943.69

AGENDA ITEM #9.10
Ratification of the purchase of park furniture in the amount of $329,909... Page 165 of 300

PE UIREDCONUT
nflrmher
QUOTATIONAUTHORIZEDSALESPERSONSIGNATURETimLHudson10/19/22OutdoorCreationsInc.2270BarneyRoadAnderson,CA96007USAPH#[email protected] SHIPTOlndio,Cltyof HjorthPark—Indio0328. MikeEdgar760-25- 5§¥;‘I‘§I’2\lfi‘n‘i."e”45mes*9ar@indi°r°r9lndio‘CA92201 lndio,CA92201USA SalesRep GoodThru TennsTimLHudson 11/18/22Net30D3)/SQtyUOMModel# Description1EA100FSS 92"SmoothTopPicnicTableFSlegs<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)1EACustom PaintchargeforLogo3EA101FSS 72"SmoothTopPicnictableFSlegs<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)3EACustom PaintchargeforLogo4EA503Waste Squarereceptaclew/reveal2EA503LIDBLUE503LIDBLUE(GR1372—BL01)2EA503LIDBRONZE503LIDBRONZE(GR1372—BR340)2<Each>CastInLogo CastInLogo(RecycleLogoPaintedBlue)2<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)TrashReceptacleonly2EACustom PaintchargeforLogo<Each>CoilRod CoilRodEASmoothFinishSmoothFinishEANANO Nano—Non—sacrificiaIsealer<Each>Tan ODCTanColor1<Each>ShippingMustBeTaxed,CompanyOwnedTruck PLEASEFILLINFORMATIONONTHEADDITIONALPAGEWITHTHETERMSAND SubtotalSalesTaxPleasesign yourorderandacknowledgethatyouhavereadand1-01-ALunderstandourtermsandconditionsForkliftrequiredupondeliveryunlessotherarrangementsmadepriortoorder.STANDARDDELIVERYAR0ANDAPPROVEDSUBMITTALS/ORDERIS16-WEEKS(Doesnotapplytocustomproducts) Date:10/19/22QuoteNo.:Q5612FX#530-365-5129 0|’‘I00{I}IiII|’I‘IINSNI}.

PurchaseOrder
UnitPrice1,050.00180.001,085.00180.00695.00
180.00
1,80000
Amount1,05000180003,25500540002,780.00
360.00
1,800.00
9,965.00871.9410,836.94

AGENDA ITEM #9.10
Ratification of the purchase of park furniture in the amount of $329,909... Page 166 of 300 %
QUOTATIONAUTHORIZEDSALESPERSONSIGNATURETimLHudsonOutdoorCreationsInc.10/19/222270B Rd Date:10/19/22arneyoaAnderson,CA96007 Q“°t°N°Q5613USApH#530-365-6106FX#530-365-5129Emailtim@outdoorcreationscomSOLDTO SHIPTOlndio,Cltyof ShieldsPark—lndio. MikeEdgar760-250-3528WtAtht ..831:1A3en‘L'.'-745"‘e.d9a’@'”d'°'°'9lndio,CA92201 '”d'°'CA92201USA SalesRep1GoodThru TermsTimL.Hudson 11/18/22Net30DaysQtyUOMModel# Description4EA100FSS92"SmoothTopPicnicTableFSlegs<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)4EACustom PaintchargeforLogo1EA408B 26"x84"ContourBenchwithcenterarmrest<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)1EACustom PaintchargeforLogo6EA503Waste Squarereceptaclew/reveal3EA503LIDBLUE503LIDBLUE(GR1372-BL01)3EA503LIDBRONZE503LIDBRONZE(GR1372-BR340)3<Each>CastInLogo CastInLogo(RecycleLogoPaintedBlue)3<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)TrashReceptacleonly3EACustom PaintchargeforLogo<Each>CoilRod CoilRodEASmoothFinishSmoothFinishEANANO Nano-Non-sacrificialsealer<Each>Tan ODCTanColor1<Each>ShippingMustBeTaxed,CompanyOwnedTruck PLEASEFILLREDINFORMATIONONTHEADDITIONALPAGEWITHTHETERMSANDCON SubtotalSalesTaxPleasesignirmyourorderandacknowledgethatyouhavereadandT01-ALunderstandourtermsandconditionsForkliftrequiredupondeliveryunlessotherarrangementsmadepriortoorderSTANDARDDELIVERYAR0ANDAPPROVEDSUBMITTALS/ORDERIS16-WEEKS(Doesnotapplytocustomproducts) 0'‘I00II}Iil|'I‘I|t\‘SNI}.

PurchaseOrderUnitPrice1,050.00
180.00940.00180.00695.00
180.00
2,475.00
Amount4,200.00
720.0094000180.004,170.00
540.00
2,475.00
13,225.001,157.1914,382.19

AGENDA ITEM #9.10
Ratification of the purchase of park furniture in the amount of $329,909... Page 167 of 300

I QUIREDCONIJTIO
QUOTATIONAUTHORIZEDSALESPERSONSIGNATURETimL.Hudson10/19/22OutdoorCreationsInc.2270BarneyRoadAnderson,CA96007USAPH#[email protected] SHIPTOlndio,Cityof DougYorkPlaza—lndio. MikeEdgar760-250-3528WtAtht ..83131A5en‘Lly45pg¢9?gg9'gg;>6jr9lndio,CA92201 ”'°'USA SalesRep GoodThru1 TennsTimL.Hudson 11/18/22Net30DaysQtyUOMModel# Description4EA408B 26"x84"ContourBenchwithcenterarmrest<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)4EACustom PaintchargeforLogo8EA503Waste Squarereceptaclew/reveal4EA503LIDBLUE503LIDBLUE(GR1372—BL01)4EA503LIDBRONZE503LIDBRONZE(GR1372—BR340)4<Each>CastInLogo CastInLogo(RecycleLogoPaintedBlue)4<Each>CastInLogo CastInLogo(6ColorpaintedCityLogoononeLeg)TrashReceptacleonly4EACustom PaintchargeforLogo<Each>CoilRod CoilRodEASmoothFinishSmoothFinishEANANO Nano—Non—sacrificiaIsealer<Each>Tan ODCTanColor1<Each>ShippingMustBeTaxed,CompanyOwnedTruck PLEASEFILLINFORMATIONONTHEADDITIONALPAGEWITHTHETERMSAND SubtotalSalesTaxPleasesignconfirmyourorderandacknowledgethatyouhavereadandTOTALunderstandourtermsandconditionsForkliftrequiredupondeliveryunlessotherarrangementsmadepriortoorder.STANDARDDELIVERYA.R.OANDAPPROVEDSUBMITTALS/ORDERIS16-WEEKS(Doesnotapplytocustomproducts) Date:10/19/22QuoteNo.:Q5614FX#530-365-5129 0’‘I00ICI§t\'I‘I|t\‘SNI}.

PurchaseOrder
UnitPrice940.00180.00695.00
180.00
2,700.00
Amount3,76000720.005,560.00
720.00
2,700.00
13,460.001,177.7514,637.75

AGENDA ITEM #9.10
Ratification of the purchase of park furniture in the amount of $329,909... Page 168 of 300 City of Indio
City Council
November 16, 2022

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Ratification of the purchase of ten (10) 2023 Ford F -150 X1E-4X4 trucks from Fiesta Ford in the amount of $561,640

RECOMMENDATION:

Ratify the purchase of ten (10) 2023 Ford F -150 X1E-4X4 trucks from Fiesta Ford in the amount of $561,640.

SUMMARY:

Currently, the City has ten (10) Public Works trucks that have met the City’s criteria for replacement.

As these vehicles have continued to age and deteriorate, they have also become less dependable.

These established guidelines exceeded have vehicles for and repair as and, replacement maintenance costs have accelerated on these vehicles, it is more cost-effective for the City to replace these vehicles.

BACKGROUND INFORMATION:

The ten (10) Public Works vehicles are utility vehicles used by Public Works e mployees to carry out their duties. These utility trucks have fulfilled their lifecycle and their replacement is of a critical need to the City. Fleet Services staff has verified that the replacement vehicles will meet the needs for the City’s Public Works Department.

Due to the lengthy lead-time and short window of opportunity to place an order, and to receive vehicles from the date of order, staff is seeking approval to ratify the purchase of the vehicles. The units are expected to be delivered to the City by the end of the current calendar year.

Last August 2022, staff solicited and received bids from three (3) vendors, with Fiesta Ford being the lowest comparable government pricing. The quotes were as follows:

Fiesta Ford, Indio CA $524,412.20
Fritts Ford, Riverside CA $526,437.50
Ken Grody Ford, Redlands CA $541,662.50

Shortly after staff receiving the quotes, the ability to order trucks through Fiesta Ford, or any other Ford dealer, were closed, and staff was unable to place the order for the trucks. On October 26, 2022, staff had an opportunity to order vehicles, which did not include government pricing. Fiesta Ford was able to quote a price which is comparable to the government pricing, but was slightl y higher by $3,722.78 per unit. Staff checked with other Ford dealers and it is unknown when they will be able to AGENDA ITEM #9.11
Ratification of the purchase of ten (10) 2023 Ford F-150 X1E-4X4 trucks ... Page 169 of 300 order trucks. Fiesta Ford has the 10% local preference advantage over other dealers, and therefore staff thought it would be prudent to place the order immediately.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$561,640 In current year budget: Yes
Current FY General
Fund Impact:
$0 Budget adjustment: No
Next FY Financial
Impact:
$0 Strategic Objective:

Source of funds: Vehicle Replacement Fund Fund-Org-Object Reference:
603

Additional Financial Details:

The purchase amount is in the budget for the current fiscal year

ATTACHMENTS:

Attachment 1

APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 08 Nov 2022 Steven Graham, City Attorney Approved - 08 Nov 2022
Jorge Rodriguez, Accountant Approved - 09 Nov 2022
Bryan H. Montgomery, City Manager Approved - 09 Nov 2022

AGENDA ITEM #9.11
Ratification of the purchase of ten (10) 2023 Ford F-150 X1E-4X4 trucks ... Page 170 of 300 ATTACHMENT 1

RECOMMENDED VEHICLE REPLACEMENT LIST

AGENDA ITEM #9.11
Ratification of the purchase of ten (10) 2023 Ford F-150 X1E-4X4 trucks ... Page 171 of 300 Asset # Make Model Vin Year Mileage
1 234 Ford F450 1FDLF47GXSEA79443 1995 5203
2 240 Ford F250 1FTNX20L22EC19989 2002 73529
3 242 Ford F150 1FTPF17L22NB06376 2002 53002
4 244 Ford F150 1FTPF17L62NB06378 2002 107743
5 257 Ford F250 1FTSF30S91EBK7206 2001 131957
6 498 Chevy C3500 1GTHK34U74E324101 2004 106848
7 675 Ford F350 1FTWX31P17EB41532 2007 9975
8 752 Ford F350 1FTWX31R88EC93746 2008 112845
9 786 Ford F250 1FTSX21R88R0C48735 2008 109833
10 788 Ford F250 1FTSX21R88R0C48735 2008 109830
Recommended Vehicle Replacement List

AGENDA ITEM #9.11
Ratification of the purchase of ten (10) 2023 Ford F-150 X1E-4X4 trucks ... Page 172 of 300 City of Indio
City Council
November 16, 2022

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Approval of final Parcel Map for Ramon Antonio Fimbres, Owner, Parcel Map No. 38411, generally located on the north side of Avenue 50 and west of Madison Street

RECOMMENDATION:

Find that the Final Map conforms to all applicable requirements of the Subdivision Map Act and the City’s Subdivision Ordinance; approve th e Final Parcel Map for Ramon Antonio Fimbres, Owner, Parcel Map No. 38411, generally located on the north side of Avenue 50 and west of Madison Street; authorize the City Clerk to attest the approved Parcel Map upon completion of any technical corrections required by the City Engineer.

SUMMARY:

The proposed residential subdivision for Parcel Map No. 38411, is generally located on the north side of Avenue 50 and west of Madison Street. The owner, Ramon Antonio Fimbres, will dedicate the required Avenue 50 right of way per the City of Indio Mobility Element of the General Plan.

BACKGROUND INFORMATION:

On September 16, 2021, Senate Bill 9 (SB 9) was signed into law by Governor Gavin Newsom to, among other things, help increase the housing stock in single family residential zones, as it allows for a local agency to ministerially approve a parcel map upon meeting a number of criteria. This criteria includes, among other things, that the parcel map subdivides an existing parcel to create no more than two new parcels resulting in size no less than 1,2 00 square feet each. Additionally, an affidavit that the applicant intends to use one of the housing units as a principal residence for at least three years from the date of approval is required. The ministerial approval process allows for the applicant to bypass the tentative parcel map approval by the Planning Commission and requiring just the final parcel map approval by City Council.

Parcel Map No. 38411 meets the required criteria of SB 9, and the property owner, Ramon Antonio Fimbres, has submitted the required signed affidavit. Therefore, staff recommends approval of Parcel Map No. 38411.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$0 In current year budget: N/A
AGENDA ITEM #9.12
Approval of final Parcel Map for Ramon Antonio Fimbres, Owner, Parcel Ma... Page 173 of 300 Current FY General
Fund Impact:
$0 Budget adjustment: N/A
Next FY Financial
Impact:
$0 Strategic Objective:

Source of funds: N/A Fund-Org-Object
Reference:

N/A

Additional Financial Details:

Parcel Map No. 38411 is not required to be annexed into the Public Safety Community Facilities District 2004-1.

ATTACHMENTS:

Attachment 1

APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 08 Nov 2022 Steven Graham, City Attorney Approved - 08 Nov 2022
Jorge Rodriguez, Accountant Approved - 09 Nov 2022
Bryan H. Montgomery, City Manager Approved - 09 Nov 2022

AGENDA ITEM #9.12
Approval of final Parcel Map for Ramon Antonio Fimbres, Owner, Parcel Ma... Page 174 of 300 ATTACHMENT 1

VICINITY MAP

AGENDA ITEM #9.12
Approval of final Parcel Map for Ramon Antonio Fimbres, Owner, Parcel Ma... Page 175 of 300 ATTACHMENT - 1

COUNCIL MEETING DATE

APPLICANT
N
W E

E N G I N E E R I N G S E R V I C E S
LEGEND

PROJECT

LOCATION
NOVEMBER 16, 2022
SUMMARY:

THE PROPOSED RESIDENTIAL SUBDIVISION FOR PARCEL
MAP NO. 38411, GENERALLY LOCATED ON THE NORTH
SIDE OF AVENUE 50 AND WEST OF MADISON STREET.

THE OWNER, RAMON ANTONIO FIMBRES, WILL DEDICATE
THE REQUIRED AVENUE 50 RIGHT OF WAY PER THE CITY OF
INDIO MOBILITY ELEMENT OF THE GENERAL PLAN.

V I C I N I T Y M A P
S

NOT TO SCALE
Ramon Antonio Fimbres
(Owner)

JEFFERSON ST

MADISON ST

MONROE ST
AVENUE 50

CITY OF INDIO

CITY OF

LA QUINTA
PM 38411
AVENUE 49
AVENUE 52

AGENDA ITEM #9.12
Approval of final Parcel Map for Ramon Antonio Fimbres, Owner, Parcel Ma... Page 176 of 300 City of Indio
City Council
November 16, 2022

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Scott Trujillo, Deputy City Manager
Subject: Mural Deaccession and Restoration: Approve (1) Deaccession of History of Transportation Mural, per the City of Indio Public Arts Deaccessioning Policy including removal of Mural and repainting the wall in amount of $7,925.00; (2) restoration (3) and $2,000; of amount Ann’s Mural Bakery Mary of in restoration of Old Indio Mural in amount of $3,500.

RECOMMENDATION:

Approve (1) Deaccession of History of Transportation Mural, per the City of Indio Public Arts Deaccessioning Policy including removal of Mural and repainting the wall in amount of $7,925.00; (2) restoration of Mary Ann’s Bakery Mural in amount of $2,000; and (3) restoration of Old Indio Mural in amount of $3,500.

SUMMARY:

The Public Arts Commission’s at their November 8 meeting reviewed the staff reports and images of History of Transportation Mural, Mary Ann’s Mural, and Old Indio Mural and recommended to the City Council to remove History of Transportation Mural per the C ity of Indio Public Arts Deaccessioning Policy including mural removal and painting the wall that the said mural is located on in amount of $7,925.00 and made a separate recommendation to restore Mary Ann’s Bakery Mural and Old Indio Mural in amount of $5,500.

BACKGROUND INFORMATION:

There are currently nine (9) wall murals in and around Downtown Indio. Three (3) of the murals were previously commissioned as public murals by the City, while the remaining six (6) murals are private.

The private murals were created through a previous program administered through the City of Indio Chamber of Commerce now operating as the Greater Coachella Valley Chamber of Commerce. The City has had no direct operation or maintenance responsibilities for the privately owned murals since their inception. However, recognizing the public’s interest in having these murals properly repaired and maintained, City staff in summer of 2020 worked with the City Attorney’s Office to create a “Mural Facade Program Agreement” template document.

In fall 2020, City staff issued a Request for Qualifications (RFQ) for qualified individuals or firms with demonstrated skills and experience in on maintenance and preventative care, and examination and conservation of artworks in the Indio Art Pu blic Places Collection (AIPP) with a particular focus on mural restoration and conservation. The RFQ response closure date was December 11, 2020. The City hired Evergreene Architectural Arts to conduct a comprehensive condition assessment of all murals in the City (Attachment 1).

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 177 of 300

On November 9, 2021 meeting, the Public Arts Commission recommended to the City Council the following actions for History of Transportation Mural, Mary Ann’s Bakery Mural, and Old Indio Mural, which were approved by the City Council on January 19, 2022.

1. Recommendation for History of Transportation was to retain the mural as is and re-evaluate its condition with the Public Arts Commission in 48 months. Painted by artist Duane Flatmo in 1997, History of Transportationis one of two (2) murals painted at the Clark’s Truck Stop, Located at 82231 Indio Blvd, facing Sun Gold Street.

2. Recommendation for Mary Ann’s Mural was to retain the mural as is and re -evaluate its condition with the Public Arts Commission in 48 months. Painted by artist Duane Flatmo in 1997, Mary Ann’s Bakeryis the second mural painted at the Clark’s Truck Stop, Located at 82231 Indio Blvd. facing Indio Boulevard.

3. Recommendation for Old Indo Mural was to retain the mural as is and re-evaluate its condition with the Public Arts Commission in 12 months. Painted by Bijan Masoumpanah in 2016, Old Indiois one of most recently painted murals. Located at 82 -789 Miles Avenue; east all facing Towne Street.

However, since then staff has inspected the above noted murals and the following actions shall be taken:

1. Request for Deaccessioning of History of Transportation:

This mural is in very bad condition and requires exce ssive repair including removal of and repainting of the entire mural, which is impractical and unfeasible. Staff has contacted the original artist, Duane Flatmo, for consultation and right of first refusal. The Artist has indicated that the mural is beyond repair and he is no longer painting murals.

Deaccessioning of this mural required the City to follow “City of Indio Public Art Deaccessioning Policy” (“the Policy), which was adopted by Resolution No. 10113 on September 15, 2019 (Attachment 2 to this staff report). The Policy states that: “Deaccessioning is the formal process by which artwork is permanently removed from the Art in Public Places collection including but not limited to transfer, donation, loss, sale, or involuntary destruction”. In ad dition, the Policy states that: “Although generally the City of Indio would like its commissioned public art to remain in situ for a minimum of 15 years (although 15 years is not a limit on the life of an artwork), it recognizes that public artwork is not necessarily going to be installed in perpetuity”. It should be noted that History of Transportation mural was painted 25 years ago (in 1997).

The Deaccession Form that includes detailed information about History of Transportation Mural that has been approved by the Chairperson of the Public Arts Commission is attached to this staff report as Attachment 3.

Evergreene Architectural Arts has indicated that the cost to restore this mural is $161,781, which is cost prohibitive. The mural has deteriorated beyond repair and the condition of the Artwork cannot be reasonably guaranteed (Please see Attachment 4 to this staff report for current images of all murals).

The cost to entirely remove History of Transpiration mural and repaint the wall is $7,925.00 (Attachment 5). Staff has contacted the property owner and the artist and has notified them about initiating a deaccessioning process.

2. A request to restore Mary Ann’s Bakery Mural:

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 178 of 300 This mural is in a fair condition except some paint peeling/falling and small graffiti that could be repaired and sealed. Ravi Wilkie, a muralist and conservator, will restore this mural including cleaning, fixing the peeling/falling paint, removing the areas of graffiti, and retouching the paint as needed. The final step would be to apply a coat of sealer over the entire mural. The cost to restore this mural is $2,000 (Attachment 6).

It should be noted that the staff has contacted the original artist , Duane Flatmo, for consultation and right of first refusal. The Artist has indicated that he is no longer painting murals. Therefore, staff is utilizing the conservator.

3. A request to restore Old Indio Mural:

This mural includes paint fall, peeling of paint, areas of stain, and cracks. Ravi Wilkie, a muralist and conservator, will restore this mural to address the most obviously damaged and problematic areas, (mostly on the bottom half of the mural), to re-adhere the peeling paint as well as fill and r epaint where most needed. In addition, to remove and/or repaint the areas where there is any over paint remaining from a previous clean/removal attempts. The final step would be a coat of sealer over the entire mural. The cost to restore this mural is $3,500 (Attachment 5).

It should be noted the staff has contact the original artist, Bijan Mashoumpand to restore the mural. However, his cost is $5,000. Per the contract between the City and the Artist, the City requires to “make reasonable efforts to consult with the Artist” and provide “the opportunity to execute the repairs,” but the City is not required to select the Artist at a noncompetitive price. Since the Artist could not bring the price down, the City is utilizing the lower -priced conservator.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$13,425 In current year budget: Yes
Current FY General
Fund Impact:

None Budget adjustment: No
Next FY Financial
Impact:

None Strategic Objective: Community
Beautification
Source of funds: Public Arts Fund Fund-Org-Object
Reference:
203-521064

ATTACHMENTS:

Attachment 1 - Evergreene Architectural Arts Assessment Repport Attachment 2 - City of Indio Public Art Deaccessioning Policy Attachment 3 - Deaccession Form
Attachment 4 - Images
Attachment 5 - Conservation Cost Estimate
Attachment 6 - RG Construcation Cost Estimate

APPROVAL(S):

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 179 of 300 Scott Trujillo, Deputy City Manager Approved - 10 Nov 2022 Lauren Sanchez, Assistant City Attorney Approved - 10 Nov 2022 Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 10 Nov 2022 Bryan H. Montgomery, City Manager Approved - 10 Nov 2022

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TO: Debra Alleyne
Public Art and Historic Preservation Management Analyst City of Indio, Community Development Department
100 Civic Center Mall, Indio, CA 92201
Direct: (760) 391-4075 | Cell: (760) 574-9323
Email: [email protected]

FROM: Jaime Carpenter, Conservator - EverGreene Architectural Arts

DATE: July 09, 2021

PROJECT: 5-1-21035 – City of Indio Murals

SUBJECT: Murals Assessment, Treatment Recommendations, and Cost Estimates

At the behest of the City of Indio and facilitated by Debra Alleyne, EverGreene Architectural Arts (EverGreene) surveyed and assessed 11 outdoor mural paintings positioned on the exterior façades of numerous buildings located throughout downtown Indio, California. The on-site assessments were performed by EverGreene Conservator, Jaime Carpenter, on May 18th and 19th, 2021. This submittal provides a summary of the current conditions identified for each mural, provides a treatment priority categorization, and provides recommendations for remedial conservation treatments.

Downtown Indio is adorned with a number of large, sophisticated, beautifully rendered mural paintings, commissioned as a part of the Historic Mural Project, launched by the Chamber of Commerce in 1996.

The paintings were executed by a range of artists between 1997 to 2016. They are painted on the external façade of multiple downtown buildings, mainly found to have cement block or California “stucco” support surfaces. Although no analysis was performed, the murals were all identified as either acrylic polymer or oil paint medium.

The on-site inspection was performed from ground level, therefore close visual assessment of all areas was not possible.

SUMMARY OF FINDINGS
As a group, the murals were found to be in variable condition, ranging from “good” with low treatment priority, to “critical” with very high treatment priority recommended. A summary table is provided below.

Indio Murals Assessment – Summary Table
No. Title Artist Year Paint Media Dimensions Varnished Condition Treatment Priority
1 History of
Transportation
Duane Flatmo 1997 Undetermined
(Oil or Acrylic)
18’ x 90’ Yes Critical Very High
2 Mary Ann’s Bakery Duane Flatmo 1997 Undetermined
(Oil or Acrylic)
18’ x 30’ No Fair Moderate

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2 3 Desert Cahuilla
Village
Don Gray 1998 Undetermined
(Oil or Acrylic)
-- No Fair Low
4 History of the Date
Industry in the
Coachella Valley
Chuck Caplinger 1998 Acrylic 18’ x 77’ Yes Critical Very High 5 History of Electricity
in and Around Indio
Jim Fahnestock 2000 Oil -- Yes Critical Very High
6 Agriculture in Indio
and the Coachella
Valley
Jim Fahnestock 2002 Oil 18’ x 95’ Unknown Fair Moderate 7 History of Water in
the Coachella Valley
Don Gray 2003 Undetermined
(Oil or Acrylic)
15’ x 140’ Possible Poor High
8 Moving Towards the
Future
David Oceloti
Garcia
2012 Acrylic 14’ x 62’ No Fair Moderate
9 Rebirth Nicole Ponsler 2013 Acrylic 17’ x 50’ Yes Fair Moderate 10 Old Indio Bijan
Masoumpanah
2016 Undetermined
(Oil or Acrylic)
-- No Fair Moderate
14 Monarch Migration
Mural
Walter Lab 2016 Undetermined
(Oil or Acrylic)
-- No Good Low

This group of paintings displays many conditions commonly faced by outdoor murals which include phenomena such as flaking and peeling paint, cracking and detaching substrate, spalling, salt efflorescence, fading, paint erosion, degradation of previous coatings, and graffiti vandalism. While some of these issues can be effectively mitigated with conservation treatment, other issues such as fading, erosion, and coating degradation are enhanced by the particularly harsh desert environment in which these murals are situated and are not reversable or preventable. As such the following recommendations should be considered for the group of paintings as a whole:
• High resolution photographic documentation – Outdoor mural paintings have an inherently shorter lifespan than indoor paintings due to the particular environmental impacts faced from deterioration sources such as rainwater exposure, sandstorms, pollution, temperature fluctuations, direct sunlight, etc. Outdoor murals cannot be readily protected from these sources of deterioration, meaning that regardless of remedial conservation treatment efforts, outdoor murals will continue to degrade at a rapid rate over time. Therefore, comprehensive, high-resolution photo documentation such as photogrammetry is recommended to document the murals for posterity and to assist in their restoration should they need to be entirely repainted or otherwise recreated in the future.
• Avoidance of varnish or coating application – Generally speaking, coatings and varnishes cause more problems than benefits when applied to outdoor paintings and require maintenance of their own in the relatively short term, including frequent removal and replacement. Varnishes and coatings are able to slow fading but not prevent it. In addition, they protect against graffiti vandalism, but only if rigorously maintained. Conversely, their application frequently causes severe flaking, paint loss, discoloration (yellowing and darkening), blanching, spalling of the support, and exacerbation of salt efflorescence. That being said, new coating materials are regularly being developed and research may be implemented to evaluate potential new options; however, no known materials are currently recommended. • Vandalism deterrents – the implementation of certain passive measures may help to deter future acts of graffiti vandalism. Measures may include increasing visibility of the murals overnight by improving lighting, reducing access to the mural surfaces with barriers, and installing visible security cameras as disincentives.

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3 INDIVIDUAL MURAL ASSESSMENTS AND RECOMMENDATIONS

History of Transportation (#1)
82253 Indio Blvd.; west wall on Clark's Travel Center, facing Sungold Street.

Condition
Painted by artist Duane Flatmo in 1997, History of Transportation is one of 2 murals painted at the Clark’s Truck Stop on Indio Boulevard. The composition is executed on the side façade, along the West wall of the building.

It is painted on a white primed cement block of a generally smooth surface with the exception of indented grout lines. The substrate shifts to a wooden panel in the central portion of the mural. Overall, the substrate, primer, and paint layers are in critical condition. Active cracking of the substrate, paint flaking, and paint loss were documented throughout.

The surface appears significantly soiled throughout with multiple areas of graffiti and surface accretions such as bird excrement, paint splatters, foam insulation, and calcareous deposits due to water flow around a faulty gutter system. The paint layers in the central portion of the mural, where the substrate switches to a wooded panel, appear to be abraded and worn (particularly in the sky). Select areas of loss have been poorly overpainted, and do not accurately represent the intentions of the original composition. A varnish layer was previously applied to the entire surface of the mural which has begun to disintegrate, producing an uneven, discolored, flaking, and powdering surface.

The mural is located at 82-253 Indio Boulevard, at the Clark's Truck Stop on the West wall of the building, along Sun Gold Street.

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4 Recommendations
History of Transportation is currently in critical condition and has been assigned a very high conservation treatment prioritization. Select areas of unstable paint will require immediate stabilization through flake re-adhesion and paint consolidation. A light dry cleaning is then recommended for all surfaces, using soft brushes, Wishab, and/or vulcanized rubber sponges. An aqueous cleaning method may be required to remove stubborn dirt from within the wall texture and grout lines. Tenacious surface accretions, such as graffiti, inappropriate overpainting, and calcareous deposits will likely require further aqueous or solvent based cleaning for successful removal. The degraded coating should be removed to the extent possible without damaging the underlying paint layer beneath.

All cracks and unsound plaster will require localized stabilization including consolidation and injection re-adhesion. Following complete stabilization, loss compensation should be executed, which includes both substrate and pictorial layers.

Overall image of History of Transportation.

Detail showing central wooden support panel in
which the paint layer appears worn and abraded.
(Photo: EverGreene, 2021)

Detail of graffiti on painted surface and paint loss.
(Photo: EverGreene, 2021)

Detail of severe paint peeling, spalling/decohesion
of substrate, and paint loss. (Photo: EverGreene,
2021)

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5 Mary Ann’s Bakery (#2)
82253 Indio Blvd., north wall on west end, on Clarks Travel Center facing Indio Blvd.

Condition
Painted by artist Duane Flatmo in 1997, Mary Ann’s Bakery is one of 2 murals painted at the Clark’s Truck Stop on Indio Boulevard. The composition is executed on the front façade, or Northwest corner of the building.

The mural is executed on white primed cement block with deep grout lines. The texture is relatively smooth, although the deep grout lines allow dirt and surface accretions to settle in the indents. There is a small section in the upper portion of the mural where the substrate changes to a plastered surface with textured “stucco” plaster on the east side and smooth plaster west. Overall, the substrate and paint layers are in fair condition. A minimal amount of cracking was documented in the substate. Paint loss and active flaking were primarily noted along the bottom margin on the composition. The surface appears only slightly soiled throughout, with occasional graffiti and surface accretions such as bird excrement and mortar splatter. The paint layers in the upper right stucco section appear to be weathered and abraded.

The mural is located at 82-253 Indio Boulevard, at Clark's Truck Stop on the Northwest Corner of Indio Boulevard and Sun Gold Street.

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6 Recommendations
Mary Ann’s Bakery is currently in fair condition. A light dry cleaning is recommended across the surface, using dust brushes, Wishab, and/or vulcanized rubber sponges. An aqueous cleaning method may be required to remove stubborn dirt from within the wall texture and deep grout lines. Tenacious surface accretions may require further aqueous or solvent based cleaning for proper removal.

Unstable paint layers along the bottom edge of the composition will require localized stabilization followed by loss compensation. The upper stucco portion of the mural may also require stabilization and loss compensation where the original appears abraded.

Overall image of Mary Ann’s Bakery.

Detail showing paint loss and active flaking along
bottom margin of composition. (Photo:

EverGreene, 2021)

Detail of mortar splatter. (Photo: EverGreene, 2021)

Detail of bird excrement. (Photo: EverGreene, 2021)

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7 Desert Cahuilla Village (#3)
82862 Miles Avenue; southeast corner of Indio Blvd. & Towne St., facing Indio Blvd.

Condition
Painted by artist Don Gray in 1998, Desert Cahuilla Village is one of the largest scale murals that was assessed during the recent survey. It is located at the Southeast corner of Indio Boulevard at Towne Street.

It is painted on a white primed cement block support with deep indented grout lines, and a generally rough surface. The pronounced texture allows dirt and surfaces accretions to easily collect and become embedded. The mural was executed over a substrate that contained multiple areas of previous, pronounced patching. The substrate and patches appear stable, although the textures differ significantly. Overall, the substrate, primer, and paint layers are in stable condition. The presenting paint layers appear to be light-bleached or faded due to significant sunlight and UV exposure.

The surface is fairly soiled throughout, with scuffs and abrasions along the bottom margins. There are slight discolorations, particularly within the lower blue fields of the composition. The central figure has large graffiti on its chest. The appearance of the graffiti was subdued with an inappropriate overpaint, causing additional discoloration of the area.

The mural is located at 82-862 Miles Avenue on the
Southeast corner of Indio Boulevard at Towne
Street.

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8 Recommendations
Desert Cahuilla Village is currently in fair condition; however, it was given a low conservation treatment priority because it appears stable and does not show signs of ongoing, active deterioration. A light, dry cleaning is recommended for all surfaces, using soft dust brushes, Wishab, and/or vulcanized rubber sponges. An aqueous cleaning method will likely be required to remove stubborn dirt from within the wall texture and grout lines. Tenacious surface accretions, such as graffiti, inappropriate overpainting, and brown staining will likely require further aqueous or solvent based cleaning for successful removal.

Cracks and unsound plaster will require spot stabilization. Following spot stabilization, loss compensation will be executed, which should address both the substrate and pictorial layers. The chest of the graffitied figure should be repainted to remove any ghosting and discoloration currently present.

Detail showing graffiti which has been painted out
with poorly matched overpaint. (Photo: EverGreene,
2021)

Detail showing faded surface appearance and
original patches in the substrate of differing surface
texture. (Photo: EverGreene, 2021)

Overall image of Desert Cahuilla Village.

Detail showing scuffs and
abrasions along bottom
margin. (Photo: EverGreene,
2021)

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9 History of the Date Industry in the Coachella Valley (#4) 45013 Oasis St.; north wall on east end (to the left), facing Miles Avenue.

Condition
Painted in acrylic medium by artist Chuck Caplinger in 1998, History of the Date Industry in the Coachella Valley is located at the southwest corner of Miles Avenue and Oasis Street.

It is painted on a white primed cement block support with a generally smooth surface excepting indented grout lines. Overall, the substrate, primer, and paint layers are in critical condition. Active cracking and spalling of the substrate, abrasion, significant paint flaking, and paint loss were documented throughout.

The surface appears significantly soiled, with scuffs along the bottom margins and brown surface accretions in the upper left sky. The mural has been previously repainted in its entirety, due to extensive damages to the pictorial layers. A varnish layer was previously applied over the surface of the mural which has begun to disintegrate, leaving an uneven, discolored, flaking, and powdering surface. The varnish was applied with a roller, producing a thick and uneven layer. The roller texture also caused small bubbles on the surface of the varnish throughout the entire mural.

The mural is located at 45-013 Oasis Street on the
southwest corner of Miles Avenue and Oasis Street.

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10 Recommendations
History of the Date Industry in the Coachella Valley is currently in critical condition and prioritized as have a very high conservation treatment need. Select areas of unstable paint will require immediate stabilization. A light dry cleaning is then recommended to all surfaces, using soft brushes, Wishab, and/or vulcanized rubber sponges. Additional paint consolidation may be required following surface cleaning. An aqueous cleaning method may be required to remove stubborn dirt from within the wall texture and grout lines. Tenacious surface accretions, such as graffiti (if present), inappropriate overpainting, and brown staining will likely require further aqueous or solvent based cleaning for successful removal. Removal of the degraded, previous coating is recommended if possible without disturbing the underlying paint layer.

All cracks and unsound plaster will require localized stabilization. Loss compensation of the support and paint layer should then be implemented.

Detail showing widespread nature of paint loss
across mural surface. (Photo: EverGreene, 2021)

Detail showing significant spalling and decohesion
of the substrate, in addition to paint flaking and
loss. (Photo: EverGreene, 2021)

Overall image of History of the Date Industry in the
Coachella Valley.

Overall image of History of the Date Industry in the
Coachella Valley. (Photo: EverGreene, 2021)

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11 History of Electricity in and Around Indio (#5)
45-435 Fargo Street; facing Civic Center Drive.

Condition
Painted in an oil medium by artist Jim Fahnestock in 2000, History of Electricity In and Around Indio was painted two years prior to his mural Agriculture in Indio and the Coachella Valley. The mural is located at 45-435 Fargo Street on the Southwest corner of Civic Center Mall at Fargo Street.

It is executed on a primed, cement block support with a generally smooth surface finish, excepting indented grout lines. The left 15 feet (approximate) of the composition is painted on a larger support block format and appears to be in better condition than the mural as a whole. Overall, the substrate, primer, and paint layers (excluding the 15 feet of mural executed on a differing block substrate) are in critical condition. Active cracking and spalling of the substrate, abrasion, paint flaking and loss, and varnish flaking and powdering were identified and documented throughout. Rainwater appears to have eroded the paint layer in large streaks, creating large areas of loss particularly concentrated along the top margin.

The surface appears significantly soiled throughout, with tenacious splashes, graffiti, and inappropriate paint touchups. The presenting paint layers appear significantly faded from exposure to direct sunlight.

Significant powdering and loss from apparent water streaking compound the faded and inconsistent visual appearance. In addition, the substrate appears to be spalling from salt efflorescence.

The mural is located at 45-435 Fargo Street on the Southwest corner of Civic Center Mall at Fargo Street.

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12 Recommendations
History of Electricity In and Around Indio is currently in critical condition and was assigned a very high priority level for conservation treatment. Select areas of unstable paint will require immediate stabilization. A light, dry cleaning is then recommended for all surfaces, using dust brushes, Wishab, and/or vulcanized rubber sponges. Efflorescent and spalling support material should be removed down to a stable surface and poulticed as necessary. An aqueous cleaning method may be required to remove stubborn dirt from within the wall texture and grout lines. Tenacious surface accretions, such as graffiti, inappropriate overpainting, and splashes will likely require further aqueous or solvent based cleaning for successful removal.

All cracks and unsound plaster will require localized stabilization. Flaking and powdering will additionally require stabilization through consolidation and re-adhesion. Following complete stabilization, loss compensation will be executed, which includes both substrate and pictorial layers.

Large areas of erosion will require repainting.

Overall image of History of Electricity In and Around the Coachella Valley.

Detail showing erosion and fading
of mural surface. (Photo:

EverGreene, 2021)

Detail showing spalling of the substrate and
associated peeling, flaking, and loss of the paint
layer. (Photo: EverGreene, 2021)

Detail showing erosion and fading of the mural
surface. (Photo: EverGreene, 2021)

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13 Agriculture in Indio and the Coachella Valley (#6)
82740 Miles Avenue; east wall of Yellow Mart, facing Towne Street.

Condition
Painted in an oil medium by artist Jim Fahnestock in 2002, Agriculture in Indio and the Coachella Valley is located along Towne Street on the east-facing wall of the Yellow Mart building.

The mural is executed on an undetermined substrate, skimmed with plaster which provides a semi- rough surface texture. The texture allows dirt and surfaces accretions to easily collect. Minor cracks in the substrate were documented throughout the composition. Pictorial layers appear generally stable, with minimal loss and flaking, primarily along the bottom edge. The presenting paint layers seem to be significantly bleached due to UV exposure.

The surface appears significantly soiled throughout, with heavier soiling along the bottom margin. A varnish layer was likely applied to the mural which appears to be causing blanching in select areas, leaving an uneven and chalky (almost ghost-like) appearance. Areas affected by the blanching include the field to the left of the central figure, the central figure, grape bunches and vines, the green landscape behind the horses, and the figures on the right (including the suitcase).

The mural is located at 82740 Miles Avenue, along the
East side of the Yellow Mart Building, facing Towne
Street.

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14 Recommendations
Agriculture in Indio and the Coachella Valley is currently in fair condition. A light, dry cleaning is recommended for all surfaces, using soft brushes, Wishab, and/or vulcanized rubber sponges. An aqueous cleaning method may be required to remove stubborn dirt from within the wall texture.

Tenacious surface accretions, such as bird excrement and the blanched varnish layers, will likely require further aqueous or solvent based cleaning for successful removal. Additional investigation and testing to determine if a coating is present and if its removal is possible and will improve the visibility of the mural. Paint consolidation should be tested to establish if reformation and re-saturation of the original paint layer is possible.

All cracks, unsound plaster, and lifting paint will require localized stabilization. Following stabilization, loss compensation will be executed, which includes both substrate and pictorial layers.

Overall image of Agriculture in Indio and the Coachella Valley.

Detail showing heavy soiling along
bottom. (Photo: EverGreene, 2021)

Detail showing cracking in the plaster substrate and general fading of the paint layer. (Photo: EverGreene, 2021)

Detail showing cracking in
the plaster substrate and
general fading of the paint
layer. (Photo: EverGreene,
2021)

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15 History of Water in the Coachella Valley (#7)
45-175 Fargo Street; south wall of the Indio Performing Arts Center.

Condition
History of Water in the Coachella Valley is the second mural in the current assessment painted by artist, Don Gray. The mural was executed in 2003, and is located at 45-175 Fargo Street, East of Smurr Street and North of Civic Center Mall, on the south facing wall between Fargo Street and the alley at Pocket Park.

The mural is executed on a metal lath substrate, skimmed with a plaster layer of semi-rough surface texture. The texture allows dirt and surface accretions to easily collect. Overall, the substrate, primer, and paint layers are in poor condition. There is active large-scale cracking of the support plaster, many of which have resulted in complete loss of both the plaster and paint layers.

The surface appears significantly soiled throughout, with heavier soiling along the bottom margins and minor graffiti in multiple locations. A possible, previous varnish layer has left the surface blanched, discolored, and uneven; or the pigments have been significantly weathered and sun-bleached, resulting in an uneven, undersaturated appearance.

The mural is located at 45-175 Fargo Street, East of Smurr Street and North of Civic Center Mall, on the south facing wall between Fargo Street and alley at Pocket Park.

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16 Recommendations
History of Water in the Coachella Valley is currently in poor condition and was categorized as high priority for conservation treatment. Select areas of unstable substrate and accompanying paint will require immediate stabilization. A light, dry cleaning is then recommended for all surfaces, using soft brushes, Wishab, or vulcanized rubber sponges. An aqueous cleaning method may be required to remove stubborn dirt from within the wall texture. Tenacious surface accretions, such as graffiti, inappropriate overpainting (in any), and staining will likely require further aqueous or solvent based cleaning for successful removal. The paint layer may require consolidation. Re-saturation of the paint layer is unlikely without repainting.

All cracks and unsound plaster will require localized stabilization. Following stabilization, loss compensation will be executed, which includes both substrate and pictorial layers.

Overall image of History of Water in the Coachella Valley.

Detail showing faded or
blanched appearance of
mural surface today.
(Photo: EverGreene, 2021)

Detail showing faded or blanched appearance of mural surface today. (Photo: EverGreene, 2021)

Detail showing cracking in
the substrate and
associated paint instability.
(Photo: EverGreene, 2021)

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17 Moving Towards the Future (#8)
45-125 Smurr Street; north wall facing the parking lot and park area to the north, towards Miles Ave.

Condition
Painted by artist David Oceloti Garcia in 2012, Moving Towards the Future is painted in acrylic medium on the North facing wall, at the back of Aladdin’s Florist & Wedding Chapel.

The mural is executed on a primed, cement block support with indented grout lines. The texture is relatively smooth, although the deep grout lines allow dirt and surfaces accretions to settle in the indents. Overall, the substrate and paint layers are in fair condition. A minor amount of cracking was documented in the substate. Active paint cleavage, loss, and flaking was noted, primarily at the bottom margin of the composition and along the documented cracks. The surface appears only slightly soiled throughout with occasional surface accretions such as bird excrement and splatters of other unidentified substances.

The mural is located at 45-125 Smurr Street on the North wall facing the parking lot and open park area to the
Northwest of Miles Avenue.

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18 Recommendations
Moving Towards the Future is currently in fair condition and was identified as a moderate priority for conservation treatment. A light dry cleaning is recommended for all surfaces, using soft brushes, Wishab, and/or vulcanized rubber sponges. An aqueous cleaning method may be required to remove stubborn dirt from within the wall texture and deep grout lines. Tenacious surface accretions may require further aqueous or solvent based cleaning for successful removal.

Unstable paint layers along the bottom edge of the composition and along documented cracks will require localized stabilization followed by loss compensation of both the substrate and pictorial layers.

Overall image of Moving Toward the Future.

Detail showing cracking in the
substrate and associated
instable paint. (Photo:

EverGreene, 2021)

Detail showing cracking in the substrate and associated instable paint. (Photo: EverGreene, 2021)

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19 Rebirth (#9)
82660 Miles Avenue; west wall of Quick & Easy Store, facing Kings Street.

Condition
Artist, Nicole Ponsler, painted Rebirth in 2013. It was executed in acrylic medium on the West wall of the Quick & Easy, facing King Street.

The substrate is composed of white primed, cement block with indented grout lines. The surface texture is relatively smooth, although the grout lines allow dirt and surfaces accretions to settle in the indents. Overall, the substrate and paint layers are in fair condition. A minimal amount of cracking was documented in the substate. Paint loss and active flaking were primarily noted along the bottom margin of the composition. The surface appears soiled throughout, with one location of graffiti and minor surface accretions such as bird excrement and tenacious splatter marks along the bottom portion of the mural. Select surface accretions are slightly raised. A varnish layer has been previously applied to the mural and in select areas demonstrates blanching.

The mural is located at 82-660 Miles Avenue on the West wall of the Quick & Easy facing King Street.

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20 Recommendations
Rebirth is currently in fair condition with conservation treatment prioritized as moderate. A light dry cleaning is recommended to all surfaces, using soft brushes, Wishab, and/or vulcanized rubber sponges.

An aqueous cleaning method may be required to remove stubborn dirt from the lower portion of the wall where heavier soiling is documented. Tenacious surface accretions, blanching, and graffiti may require further aqueous or solvent based cleaning for proper removal.

Unstable paint layers along the bottom edge of the composition will require stabilization. Removal of the degraded coating should be tested and further evaluated onsite, to determine the potential for and benefit of safe removal. Stabilization and cleaning should be followed by loss compensation.

Overall image of Rebirth.

Detail of loss and unstable paint layer along
bottom margin of composition. (Photo:

EverGreene, 2021)

Detail of streaking likely caused by blanching
varnish layer. (Photo: EverGreene, 2021)

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21 Old Indio (#10)
82-789 Miles Avenue; east all facing Towne Street.

Condition
Painted by Bijan Masoumpanah in 2016, Old Indio is one of most recently painted compositions undergoing assessment. The composition is executed on an east-0facing wall along Towne Street.

The mural is executed on an undetermined substrate, skimmed with plaster providing a semi-rough surface texture. The texture allows dirt and surface accretions to easily collect. Overall, the substrate and paint layers are in fair condition. A moderate amount of cracking was documented in the plaster substate causing paint cleavage and loss. Paint loss and active flaking were primarily noted along the bottom margin on the composition and along cracks in the substrate. The surface is slightly soiled throughout, with heavier deposits along the lower portion of the mural and surface accretions such as bird excrement in the upper and lower left margins.

The mural is located at 82-789 Miles Avenue, along
Towne Street on the East facing wall.

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22 Recommendations
Old Indio is currently in fair condition with conservation treatment necessity prioritized as moderate. A light, dry cleaning is recommended for all surfaces, using a soft brush, Wishab, and/or vulcanized rubber sponges. An aqueous cleaning method may be required to remove stubborn dirt from within the wall texture. Tenacious surface accretions may require further aqueous or solvent based cleaning for successful removal.

All cracks and unsound plaster will require localized stabilization. Following substrate stabilization, compromised paint layers along the bottom edge of the composition and along presenting cracks in the substrate will require stabilization. Loss compensation for both substrate and pictorial layers should then be completed.

Overall image of Old Indio.

Detail showing a crack in the plaster substrate with
associated tenting and flaking. (Photo:

EverGreene, 2021)

Detail showing a crack in the substrate with
associated plaster and paint loss. (Photo:

EverGreene, 2021)

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July 09, 2021 Indio, California __________________________________________________________ _____________________________________

23 Monarch Migration (#14)
79-767 Avenue 39, North, East and West walls of the Library Building and North wall of Building “C”.

Condition
Painted by artist Walter Lab in 2016, Monarch Migration is one of the more recently painted murals assessed during the recent survey. The composition spans 2 buildings, with multiple monarch butterflies decorating the upper North façade of building “C” and the North, East, and West façades of the adjacent Library.

The mural is executed on a painted, textured “stucco” plaster. The texture is quite rough, allowing dirt and other accretions to become easily collected on the mural surface. Overall, the mural is in good condition. There is no documented or observed paint loss or flaking. The main condition identified was widespread surface soiling with occasional markings within the flat background fields. The vertical joint lines of the plaster application present the only possible area of substrate and/or paint instability. Eight joints dissect the images; however, the joint on the West façade of the library appears to have a crack running parallel, spanning the entire length of the joint. The assessment was preformed from ground level, therefore close inspection of the joints and pictorial layers was not feasible.

The mural is located at 79-767 Avenue 39, on the North, East and West walls of the Library Building and North wall of Building "C", at Desert Ridge Academy.

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24 Recommendations
Monarch Migration is currently in good condition and conservation treatment is low priority. A light, dry cleaning is recommended for all surfaces using dust brushes, a Wishab, and/or vulcanized rubber sponges. All vertical joints should be properly assessed to ensure paint and plaster stability. Localized plaster stabilization through injections and paint consolidation will be required in any areas presenting instability to prevent future loss.

Overall image of Monarch Migration. (Photo:

EverGreene, 2021)

Overall image of Monarch Migration. (Photo:

EverGreene, 2021)

Overall image of Monarch Migration. (Photo:

EverGreene, 2021)

Overall image of Monarch Migration. (Photo:

EverGreene, 2021)

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25 CONSERVATION TREATMENT COST ESTIMATES
A cost estimate for remedial conservation treatment for each of the 11 murals is provided in the table below. The estimates provided represent the cost for the maximum level of treatment recommended for each mural. Upon request, additional estimates can be provided to reflect the minimum level of treatment recommended; and/or estimates can be provided to represent a phased conservation approach to allow for the allocation of funds over time.

Please note:
• Estimates include the cost of labor, materials, transportation-related expenses, and insurance. • Estimates do not include costs for non-treatment recommendations such as comprehensive, high-resolution photo documentation (photogrammetry), or the implementation of vandalism deterrents.
• Prices are valid through the end of 2021. For each successive year please add 4% - 7% to account for labor, insurance, material, and other cost increases.

Indio Murals Assessment – Remedial Treatment Cost Estimates No. Title Artist Year Dimensions Varnished Condition Treatment Priority
Cost
1 History of
Transportation
Duane Flatmo 1997 18’ x 90’ Yes Critical Very High $ 161,781.00 2 Mary Ann’s Bakery Duane Flatmo 1997 18’ x 30’ No Fair Moderate $ 22,250.00 3 Desert Cahuilla
Village
Don Gray 1998 -- No Fair Low $65,838.00
4 History of the Date
Industry in the
Coachella Valley
Chuck Caplinger 1998 18’ x 77’ Yes Critical Very High $128,798.00 5 History of Electricity
in and Around Indio
Jim Fahnestock 2000 -- Yes Critical Very High $111,650.00 6 Agriculture in Indio
and the Coachella
Valley
Jim Fahnestock 2002 18’ x 95’ Unknown Fair Moderate $58,641.00 7 History of Water in
the Coachella Valley
Don Gray 2003 15’ x 140’ Possible Poor High $87,305.00 8 Moving Towards the
Future
David Oceloti
Garcia
2012 14’ x 62’ No Fair Moderate $27,352.00
9 Rebirth Nicole Ponsler 2013 17’ x 50’ Yes Fair Moderate $28,664.00 10 Old Indio Bijan
Masoumpanah
2016 -- No Fair Moderate $29,977.00
14 Monarch Migration
Mural
Walter Lab 2016 -- No Good Low $10,077.00
Total Cost $732,333.00

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 205 of 300 RESOLUTIONNO.10113ARESOLUTIONOFCOUNCILOFTHECITYOFINDIOADOPTINGACITYWIDEDEACCESSIONPOLICYFORPUBLICARTWHEREAS,publicartreflectstheCityoflndio’speople,heritageandcultureandtheCityofIndiohasanestablishedpublicartsprogramfortheacquisition,sitingandmanagementofpublicart;andWHEREAS,Section32.30oftheIndioMunicipalCodeestablishesthePublicArtsandHistoricPreservationCommissionasanadvisorybodytotheCityforacquisition,sitingandmanagementofpublicartwithintheCityofIndio;andWHEREAS,Section32.30(F)oftheIndioMunicipalCodespecifiesthatthePublicArtsandHistoricPreservationCommissionshall,amongstitsadvisoryduties,createandrecommendpolicyinconformitywiththeGeneralPlanforthevisualartsandhistoricpreservation;andWHEREAS,theremaybeinstanceswheretheremovalofpublicartfromtheCityof|ndio’sPublicArtsCollectionisdeemednecessary;andWHEREAS,manylocalgovernmentsintheStateofCaliforniathatoperatepublicartsprogramsmanagetheremovalofpublicartaccordingtotheguidelinesandstandardsofadeaccessionpolicy;andWHEREAS,recentlythePublicArtsandHistoricPreservationassistedbyCitystaffhasdevelopadeaccessionpolicyspecifictotheCityofIndioforrecommendationtotheCityCouncil;andWHEREAS,onAugust13,2019,thePublicArtsandHistoricPreservationCommitteerecommendedtotheCityCounciltheadoptionofadeaccessionpolicyforpublicartfortheCityoflndio;andWHEREAS,theCityCouncildesirestoadoptadeaccessionpolicytoprovideclearcriteriaandguidanceforthepermanentremovalofpublicartfromtheCityoflndio’sPublicArtsPrograminfurtheranceofthepublichealth,safetyandwelfare.NOW,THEREFORE,THECITYCOUNCILOFTHECITYOFINDIOHEREBYFINDS,DETERMINES,RESOLVES,ANDORDERSASFOLLOWS:Section1.Theaboverecitalsaretrueandcorrectandareincorporatedherein.Section2.ThepolicyattachedheretoasExhibitAentitled“DeaccessionPolicyforPublicArtsintheCityof|ndio”incorporatedhereinbythisreferenceasiffullysetforthherein,isherebyadopted.

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 206 of 300 Section3.TheCityCouncilfindstheadoptionofthisresolutionanditsattachmentExhibitAisnotsubjecttotheCaliforniaEnvironmentalQualityAct(“CEQA”)pursuanttoSections15060(c)(2)(theactivitywillnotresultinadirectorreasonablyforeseeableindirectphysicalchangeintheenvironment)and15060(c)(3)(theactivityisnotaprojectasdefinedinSection15378)oftheCEQAGuidelines,CaliforniaCodeofRegulations,Title14,Chapter3,becauseithasnopotentialforresultinginphysicalchangetotheenvironment,directlyorindirectly.Section4.TheCityClerkshallcertifytotheadoptionofthisResolution.PASSED,APPROVEDANDADOPTEDthis18“ofSeptember2019.

RAMOSAMITH,MAYOR
ATTEST:

CYNTHIA%%RNA?Z,CMCCITYCLERK

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EXHIBITA

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 208 of 300 CityoflndioPublicArtDeaccessioningPolicy
BACKGROUND:ItisthegoaloftheArtINPublicPlacesProgram(AIPP)tomaintainahighqualityartcollectionwithintheCityoflndio.ArtworkscommissionedthroughtheAIPPareconsideredapermanentpartoftheAlPP'scollection,aslongastheworkmaintainsitsphysicalintegrity,identityandauthenticity,andaslongasitremainsusefultothepurposesoftheCityoflndio’sartprogramandmunicipalgoals.Whenanyoftheseconditionsnolongerprevail,thePublicArtsandHistoricPreservationCommissionmayconsiderrecommendingtotheCityCouncilthatthepieceofartinquestionbedeaccessioned.DeaccessioningistheformalprocessbywhichartworkispermanentlyremovedfromtheArtINPublicPlacescollectionincludingbutnotlimitedtotransfer,donation,loss,sale,orinvoluntarydestruction.Deaccessioning,whencarriedoutinanappropriatemannerandwiththoughtfulconsideration,isanintegralpartofresponsiblecollectionsmanagement.Although-generallytheCityoflndiowouldlikeitscommissionedpublicarttoremaininsituforaminimumof15years(although15yearsisnotalimitonthelifeofanartwork),itrecognizesthatpublicartworkisnotnecessarilygoingtobeinstalledinperpetuity.ThePublicArtsandHistoricPreservationCommissionischargedwithprovidingguidelinesandapprovalpoliciestomaintaintheaestheticqualityofartworkthatadheretobestpracticesandaresubsequentlyapprovedbytheCityCouncil.Therefore,adversepublicopinionisinsufficientcauseanddoesnotjustifytherelocationorremovalofpermanentlyinstalledartworkifthecommissioningguidelinesandapprovalpolicieswereappropriatelyapplied.Theconsiderationfordeaccessioningaworkofartshallinvolvethesamedegreeofcarefulreviewasadecisiontocommission,leaseorpurchaseaworkofart.TotheextentthattheFederalVisualArtistsRightsAct(V ARA)andtheCaliforniaArtsPreservationAct(CAPA)apply,theCityshalltakesuchlawsintoconsiderationwhenimplementingthispolicy.DEACCESSlON_POLlCY:TheCityoflndioreservestherighttoremoveorothenlvisedisposeofartworkfromtheCity'spublicartcollection.ELIGIBLEARTWORK:AllartworkacquiredthroughtheArtINPublicPlacesProgramorthroughdonationareeligiblefordeaccession.Inthecaseofdonatedartwork,alllegaldocumentsregardingthedonationshallbereviewedandalegalopinionrenderedbytheCityAttorneybeforeproceedingwiththedeaccessioningprocess.CRITERIAFORDEACCE§S|ON|_NG:

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 209 of 300 .Theconditionoftheartworkrequiresrestorationingrossexcessofitsaestheticvalue,orisinsuchadeterioratedstatethatrestorationwouldproveunfeasibleorimpractical,orimpossible..Theartworkrequiresexcessiveorunreasonablemaintenance;hasfaultsindesign,materials,orworkmanship;orrepairorremedyisimpracticalorunfeasibleorwouldcompromisetheintegrityoftheoriginalartwork..Theworkhasbeenfoundtohavebeenfalselydocumented,fraudulentorinviolationofexistingcopyrightlaws..Theconditionorsecurityoftheartworkcannotbereasonablyguaranteed,ortheCitycannotproperlycarefororstorethework..Inthecaseofsite-specificartwork,significantchangesintheuseorcharacterofthesitewheretheartworkislocatedthreatenstheartwork'ssurvivalorsignificantlyadverselyaffectsordiminishestheartisticintegrityoftheartworkoritsaccessibility..Duetounforeseencausestheartworkhasbecomepotentiallyhazardoustothe-publicorpresentsathreattopublicsafety..Iftheartworkhasbeenlost,stolen,orismissing,theartworkmaybedeaccessionedaslongrecordstheCitykeepsallrecordsrelatingtotheartwork.PROCESSFORDEACCESSIONING:DeaccessionNotificationCitystaffshallcomplywithanystateorfederalnoticerequirements,ifapplicabletotheartwork,andinsuchcaseshallmakeareasonableefforttocontacttheartistwhoseartworkisbeingconsideredfordeaccession.InformationregardingthepotentialdeaccessionmethodsandtheCity'sprocessshallbeprovidedtotheartist.RequestforDeaccessiona.ThePublicArtandHistoricPreservationCommission,theCityCouncilorCityStaffmayinitiatetheprocessforthedeaccessionofartwork.AnyrequestfordeaccessionshallfirstbereviewedbythePublicArtandHistoricPreservationCommissionassetforthinthisPolicy.b.CitystaffshallpreparetheRequesttoDeaccessionformandpresentallofthefollowinginformationtothePublicArtandHistoricalPreservationCommissionforitsconsideration:1.Artistandartworkinformation:Artist'sname,biographicalinformation,contactinformation,awrittendescriptionoftheartwork;artist'sstatementabouttheartworknamedinthedeaccessionrequest.

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 210 of 300 .Rationale:Anarrativestatingreasonsandrequestrforthedeaccessionoftheartwork..History:Provideoriginalacquisitionmethodandcommissionprice..Independentconditionassessmentoftheartwork:Ifapplicable,anindependentprofessionalconservator’sreportofthecurrentconditionoftheartwork,treatmentrecommendations,treatmentcosts,andrecommendedmaintenance..Independentappraisalofthevalueoftheartwork:Anindependentprofessionalappraisal,oranestimateofvalueoftheworkbasedonrecentdocumentationofgalleryandauctionsales..Artistnotification:Ifapplicableinformationregardingnotificationtotheartistortheartist’sdesignatedheir(s),orlegallyrecognizedrepresentative(s),andartist’sresponse..Methodofremoval:Arecommendationofthemethodofdeaccessionincludingbutnotlimitedtodemolition,donationorsaleandareasonforthechosenmethodofremoval..Cost:Thecostsassociatedwithdeaccessioningincludingthechosenmethodofremoval.ReviewProcessforRequestPUBLICARTANDHISTORICPRESERV ATIONCOMMISSION:TheCommission,uponreceiptoftheRequestforDeaccessionformandinformationprovidedbystaff,shallconsiderandevaluatetherequestatdulynoticedpublicmeeting.TheCommissionshallundertakethefollowingactions:1.2.Assesstheapplicationaccordingtothedeaccessionpolicy.EvaluatetheRequestforDeaccessionusingtheirjudgement,experience,andknowledge..V otetoapproveorrejecttheRequestforDeaccession.MakearecommendationtotheCityCouncilregardingthedeaccessionoftheartwork.TheCommissionmayalsorequestfurtherinformationordocumentsiftheyareunabletomakeadetermination.CITYCOUNCIL:ThePublicArtandHistoricPreservationstaffshallconveytherecommendationoftheCommissiontotheCityCouncilafterwhichtheCityCouncilshall:

AGENDA ITEM #9.13
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1.ReviewthePublicArtandHistoricPreservationCommission'srecommendations(includingrecommendationstodenyapproval).2.TheCityCouncilmayapprove,denyortakenoactionontherecommendationfordeaccession.

ApprovalofDeaccessiona.IftheRequestforDeaccessionisapprovedbytheCityCouncil.themethodofdeaccessionmustalsobedeterminedbytheCityCouncilwithinputfromtheCommissionandCitystaff.(seeAppendixA).Allrecordsincludingbutnotlimitedtophotosapplicationform,applicationmaterials,commissionminutes,andcouncilresolutionsmustbearchived.b.IfaCityownedartworkissold:1.ProceedsshouldbedepositedintotheArtinPublicPlacesfund.2.TheCity'sRiskManagermustbenoti?edsothattheworkcanberemovedfromtheCity'sinsurancepolicy.DenialofDeaccession:IftheCityCouncilvotestodenyanapplicationfordeaccession,theCouncil’sdecisionisfinal.

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 212 of 300 APPENDIXA— DEACCESSIONINGMETHODOPTIONSDEACCESSIONINGMETHODOPTIONS:. iv.
vi.

SaleoftheArtworktotheArtistorotherThirdPartyTheartistmaybegiventherightoffirstrefusalandhavetheoptionofpurchasingtheartworkatanegotiatedprice.Suchpricemayincludethecosttoremoveandtransfertheartwork.Alternatively,theCitymayobtainaprofessionalappraisaloftheartwork'svalueandadvertisethesaleoftheartworkbyauction,competitiveorothermethodofsale,includingdisposingoftheartworkusingsurpluspropertyprocedures.TheCityhasthediscretiontoselltheartworktoathirdpartyatanegotiatedpricetakingintoconsiderationtheartwork'scurrentcondition.Iftheartworkissold,allproceedsfromthesaleshallbedepositedintheArtinPublicPlacesfund.RelocationofPublicDisplayIfthepieceproposedfordeaccessionisinaconditionsuchthatitcouldbere-installed,theCommissionwillattempttoidentifyanotherappropriatesiteintheCity.Iftheartworkwasdesignedforaspecificsite,theCommissionwillattempttofindarelocatedsitefortheworkconsistentwiththeCity’sandartist’sintention.Ifpossible,theartist’sassistancewillberequestedtohelpmakethisdetermination.DisclaimAuthorshipInthecasewherethemethodofdeaccessionwouldcompromisetheintegrityoftheartwork,theartistshallbegiventheopportunitytodisclaimauthorshipandrequestthathis/hernamenotbeusedinconnectionwiththegivenwork.ExchangeofArtWorkAmutualagreementbetweentheCityandtheartist.maybetoreplacetheworkwithamoreappropriateworkbythesameartistforavalueequalorgreaterthantheoriginalcostorcurrentvalueoftheartworktobedeaccessioned.Alteration,Modification,orDestructionofArtWorkItistheresponsibilityoftheCitytopreserveandprotecttheArtINPublicPlacesCollection.However,undercertainconditions,andaccordancewiththeCaliforniaArtPreservationAct(CivilCode987),andtheVisualArtistsRightsActof1990(17U.S.C.106Aand113(d))IasapplicableandconsistentwiththeCity'scontractualagreementwiththeartist;theartworkmaybemodifiedordestroyed.TheCityrecognizesthatthisisadeliberateandseldomusedprocedurebutisonemethodofdeaccessioningartwork.Inthecaseofanemergencyremovalthatmayresultindestructionorirreparabledamage,thecitywillactinaccordancewithadviceoftheCityAttorney.RemovalofArtwork

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 213 of 300 vii.Theartworkmayberemovedfrompublicdisplayandplacedintostorage.DonationofArtworkTheCitymaydonatetheartworktoanothergovernmententity,schoolornon-profit,civic,charitableorculturalorganizationthatwillproperlyinstallanddisplaytheartworkinanappropriatepublicplace.

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 214 of 300 APPENDIXB—VISUALARTISTSRIGHTSACT(V ARA)FederalLawTITLE17— COPYRIGHTSTitle17UnitedStatesCode,Section106A:Rightsofcertainauthorstoattributionandintegrity1.RightsofAttributionandIntegrity:Subjecttosection107andindependentoftheexclusiverightsprovidedinsection106,theauthorofaworkofvisualart— a.shallhavetheright—
i.toclaimauthorshipofthatwork,and,ii.topreventtheuseofhisorhernameastheauthorofanyworkofvisualartwhichheorshedidnotcreate;b.shallhavetherighttopreventtheuseofhisorhernameastheauthoroftheworkofvisualartintheeventofadistortion,mutilation,orothermodificationoftheworkwhichwouldbeprejudicialtohisorherhonororreputation;and,c.subjecttothelimitationssetforthinsection113(d),shallhavetheright— i.topreventanyintentionaldistortion,mutilation,orothermodificationofthatworkwhichwouldbeprejudicialtohisorherhonororreputation,andanyintentionaldistortion,mutilation,ormodificationofthatworkisaviolationofthatright,and,ii.topreventanydestructionofaworkofrecognizedstature,andanyintentionalorgrosslynegligentdestructionofthatworkisaviolationofthatright.2.ScopeandExerciseofRights:Onlytheauthorofaworkofvisualarthastherightsconferredbysubsection(a.)inthatwork,whetherornottheauthoristhecopyrightowner.Theauthorsofajointworkofvisualartareco-ownersoftherightsconferredbysubsection(a.)inthatwork.3.Exceptions:a.Themodificationofaworkofvisualartwhichisaresultofthepassageoftimeortheinherentnatureofthematerialsisnotadistortion,mutilation,orothermodificationdescribedinsubsection(a.3.A.).b.Themodificationofaworkofvisualartwhichistheresultofconservation,orofthepublicpresentation,includinglightingandplacement,oftheworkisnota

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 215 of 300 destruction,distortion,mutilation,orothermodificationdescribedinsubsection(a)(3)unlessthemodificationiscausedbygrossnegligence.c.Therightsdescribedinparagraphs(1.)and(2.)ofsubsection(a.)shallnotapplytoanyreproduction,depiction,portrayal,orotheruseofaworkin,upon,orinanyconnectionwithanyitemdescribedinsubparagraph(A.)or(B.)ofthedefinitionof"workofvisualart”insection101,andanysuchreproduction,depiction,portrayal,orotheruseofaworkisnotadestruction,distortion,mutilation,orothermodificationdescribedinparagraph(3)ofsubsection(a.).4.DurationofRights:a.Withrespecttoworksofvisualartcreatedonoraftertheeffectivedatesetforthinsection610(a)oftheVisualArtistsRightsActof1990,therightsconferredbysubsection(a.)shallendureforatermconsistingofthelifeoftheauthor.b.Withrespecttoworksofvisualartcreatedbeforetheeffectivedatesetforthinsection610(a)oftheVisualArtistsRightsActof1990,buttitletowhichhasnot,asofsucheffectivedate,beentransferredfromtheauthor,therightsconferredbysubsection(a.)shallbecoextensivewith,andshallexpireatthesametimeas,therightsconferredbysection106.c.Inthecaseofajointworkpreparedbytwoormoreauthors,therightsconferredbysubsection(a.)shallendureforatermconsistingofthelifeofthelastsurvivingauthor.d.Alltermsoftherightsconferredbysubsection(a)runtotheendofthecalendaryearinwhichtheywouldothen/viseexpire.5.TransferandWaiver:a.Therightsconferredbysubsection(a.)maynotbetransferred,butthoserightsmaybewaivediftheauthorexpresslyagreestosuchwaiverinawritteninstrumentsignedbytheauthor.Suchinstrumentshallspecificallyidentifythework,andusesofthatwork,towhichthewaiverapplies,andthewaivershallapplyonlytotheworkandusessoidentified.Inthecaseofajointworkpreparedbytwoormoreauthors,awaiverofrightsunderthisparagraphmadebyonesuchauthorwaivessuchrightsforallsuchauthors.b.Ownershipoftherightsconferredbysubsection(a.)withrespecttoaworkofvisualartisdistinctfromownershipofanycopyofthatwork,orofacopyrightoranyexclusiverightunderacopyrightinthatwork.Transferofownershipofanycopyofaworkofvisualart,orofacopyrightoranyexclusiverightunderacopyright,shallnotconstituteawaiveroftherightsconferredbysubsection(a).Exceptasmayothenivisebeagreedbytheauthorinawritteninstrumentsignedbytheauthor,awaiveroftherightsconferredbysubsection(a.)withrespecttoaworkofvisualartshallnotconstituteatransferofownershipofanycopyofthatwork,orofownershipofacopyrightorofanyexclusiverightunderacopyrightinthatwork.

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 216 of 300 SOURCE:(AddedPub.L.101-650,titleVi,Sec.603(a),Dec.1,1990,104Stat.5128.)Title17UnitedStatesCode,Section1131.

2. inacaseinwhich—
a.aworkofvisualarthasbeenincorporatedinormadepartofabuildinginsuchawaythatremovingtheworkfromthebuildingwillcausethedestruction,distortion,mutilation,orothermodificationoftheworkasdescribedinsection106A(a.3.),and.theauthorconsentedtotheinstallationoftheworkinthebuildingeitherbeforetheeffectivedatesetforthinsection610(a.)oftheVisualArtistsRightsActof1990,orinawritteninstrumentexecutedonoraftersucheffectivedatethatissignedbytheownerofthebuildingandtheauthorandthatspecifiesthatinstallationoftheworkmaysubjecttheworktodestruction,distortion,mutilation,orothermodification,byreasonofitsremoval,thentherightsconferredbyparagraphs(2.)and(3.)ofsection106A(a.)shallnotapply.Iftheownerofabuildingwishestoremoveaworkofvisualartwhichisapartofsuchbuildingandwhichcanberemovedfromthebuildingwithoutthedestruction,distortion,mutilation,orothermodificationoftheworkasdescribedinsection106A(a)(3),theauthor'srightsunderparagraphs(2.)and(3.)ofsection106A(a.)shallapplyunless— a.theownerhasmadeadiligent,goodfaithattemptwithoutsuccesstonotifytheauthoroftheowner’sintendedactionaffectingtheworkofvisualart,or.theownerdidprovidesuchnoticeinwritingandthepersonsonotifiedfailed,within90daysafterreceivingsuchnotice.eithertoremovetheworkortopayforitsremoval.Forpurposesofsubparagraph(A),anownershallbepresumedtohavemadeadiligent,goodfaithattempttosendnoticeIftheownersentsuchnoticebyregisteredmailtotheauthoratthemostrecentaddressoftheauthorthatwasrecordedwiththeRegisterofCopyrightspursuanttoparagraph(3).iftheworkisremovedattheexpenseoftheauthor,titletothatcopyoftheworkshallbedeemedtobeintheauthor..TheRegisterofCopyrightsshallestablishasystemofrecordswherebyanyauthorofaworkofvisualartthathasbeenincorporatedinormadepartofabuilding,mayrecordhisorheridentityandaddresswiththeCopyrightOffice.TheRegistershallalsoestablishproceduresunderwhichanysuchauthormayupdatetheinformationsorecorded,andproceduresunderwhichownersofbuildingsmayrecordwiththeCopyrightOfficeevidenceoftheireffortstocomplywiththissubsection.SOURCE:(Pub.L.94-553,titleI,Sec.101,Oct.19,1976,90Stat.2560;Pub.L.101-650,titleVl,Sec.604,Dec.1,1990,104Stat.5130.)

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Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 217 of 300 APPENDIXC—CALIFORNIAARTSPRESERV ATIONACT(CAPA)StateLawCALIFORNIACIVILCODE§9871.TheLegislatureherebyfindsanddeclaresthatthephysicalalterationordestructionoffineart,whichisanexpressionoftheartist’spersonality,isdetrimentaltotheartist’sreputation,andartiststhereforehaveaninterestinprotectingtheirworksoffineartagainstanyalterationordestruction;andthatthereisalsoapublicinterestinpreservingtheintegrityofculturalandartisticcreations.2.Asusedinthissection:a."Artist"meanstheindividualorindividualswhocreateaworkof?neart.b."Fineart"meansanoriginalpainting,sculpture,ordrawing,oranoriginalworkofartinglass,ofrecognizedquality,butshallnotincludeworkpreparedundercontractforcommercialusebyitspurchaser.c."Person"meansanindividual,partnership,corporation,LimitedLiabilityCompany,associationorothergroup,howeverorganized.d."Frame"meanstoprepare,orcausetobeprepared,aworkof?neartfordisplayinamannercustomarilyconsideredtobeappropriateforaworkoffineartintheparticularmedium.e."Restore”meanstoreturn,orcausetobereturned,adeterioratedordamagedworkoffineartasnearlyasisfeasibletoitsoriginalstateorcondition,inaccordancewithprevailingstandards.f.“Conserve"meanstopreserve,orcausetobepreserved,aworkoffineartbyretardingorpreventingdeteriorationordamagethroughappropriatetreatmentinaccordancewithprevailingstandardsinordertomaintainthestructuralintegritytothefullestextentpossibleinanunchangingstate.9."Commercialuse"meansfineartcreatedunderawork—for-hirearrangementforuseinadvertising,magazines,newspapers,orotherprintandelectronicmedia.3.CurrentStatutoryLanguagea.Noperson,exceptanartistwhoownsandpossessesaworkoffineartwhichtheartisthascreated,shallintentionallycommit,orauthorizetheintentionalcommissionof,anyphysicaldefacement,mutilation,alteration,ordestructionofaworkoffineart.b.Inadditiontotheprohibitionscontainedinparagraph(1),nopersonwhoframes,conserves,orrestoresaworkoffineartshallcommit,orauthorizethecommissionof,anyphysicaldefacement,mutilation,alteration,ordestructionofaworkoffineartbyanyactconstitutinggrossnegligence.Forpurposesofthissection,theterm

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 218 of 300 “grossnegligence"shallmeantheexerciseofsoslightadegreeofcareastojustifythebeliefthattherewasanindifferencetotheparticularworkoffineart.4.Theartistshallretainatalltimestherighttoclaimauthorship,or,forajustandvalidreason,todisclaimauthorshipofhisorherworkoffineart.Toeffectuatetherightscreatedbythissection,theartistmaycommenceanactiontorecoverorobtainanyofthefollowing:a.b. d.e.
lnjunctiverelief.Actualdamages.Punitivedamages.intheeventthatpunitivedamagesareawarded,thecourtshall,initsdiscretion,selectanorganizationororganizationsengagedincharitableoreducationalactivitiesinvolvingthefineartsinCaliforniatoreceiveanypunitivedamages.Reasonableattorneys’andexpertwitnessfees.Anyotherreliefwhichthecourtdeemsproper.5.Indeterminingwhetheraworkoffineartisofrecognizedquality,thetrieroffactshallrelyontheopinionsofartists,artdealers,collectorsoffineart,curatorsofartmuseums,andotherpersonsinvolvedwiththecreationormarketingoffineart.‘Therightsanddutiescreatedunderthissection:Shall,withrespecttotheartist,orifanyartistisdeceased,hisorherheir,beneficiary,devisee,orpersonalrepresentative,existuntilthe50thanniversaryofthedeathoftheartist..Shallexistinadditiontoanyotherrightsanddutieswhichmaynoworinthefuturebeapplicable.Exceptasprovidedinparagraph('1)ofsubdivision(h),maynotbewaivedexceptbyaninstrumentinwritingexpresslysoprovidingwhichissignedbytheartist.6.CurrentStatutoryLanguageifaworkoffineartcannotberemovedfromabuildingwithoutsubstantialphysicaldefacement,mutilation,alteration,ordestructionofthework,therightsandduties '
createdunderthissection,unlessexpresslyreservedbyaninstrumentinwritingsignedbytheownerofthebuilding,containingalegaldescriptionofthepropertyandproperlyrecorded,shallbedeemedwaived.Theinstrument,ifproperlyrecorded,shallbebindingonsubsequentownersofthebuilding.Iftheownerofabuildingwishestoremoveaworkoffineartwhichisapartofthebuildingbutwhichcanberemovedfromthebuildingwithoutsubstantialharmtothefineart,andinthecourseoforafterremoval,theownerintendstocauseorallowthefinearttosufferphysicaldefacement,mutilation,alteration,ordestruction,therightsanddutiescreatedunderthissectionshallapplyunlessthe

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Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 219 of 300 ownerhasdiligentlyattemptedwithoutsuccesstonotifytheartist,or,iftheartistisdeceased,hisorherheir,beneficiary,devisee,orpersonalrepresentative,inwritingofhisorherintendedactionaffectingtheworkoffineart,orunlessheorshedidprovidenoticeandthatpersonfailedwithin90dayseithertoremovetheworkortopayforitsremoval.iftheworkisremovedattheexpenseoftheartist,hisorherheir,beneficiary,devisee,orpersonalrepresentative,titletothefineartshallpasstothatperson.c.Ifaworkoffineartcanberemovedfromabuildingscheduledfordemolitionwithoutsubstantialphysicaldefacement,mutilation,alteration,ordestructionofthework,andtheownerofthebuildinghasnotifiedtheowneroftheworkoffineartofthescheduleddemolitionortheownerofthebuildingistheowneroftheworkoffineart,andtheowneroftheworkoffineartelectsnottoremovetheworkoffineart,therightsanddutiescreatedunderthissectionshallapply,unlesstheownerofthebuildinghasdiligentlyattemptedwithoutsuccesstonotifytheartist,or,iftheartistisdeceased,hisorherheir,beneficiary,devisee,orpersonalrepresentative,inwritingoftheintendedactionaffectingtheworkoffineart,orunlessheorshedidprovidenoticeandthatpersonfailedwithin90dayseithertoremovetheworkortopayforitsremoval.Iftheworkisremovedattheexpenseoftheartist,hisorherheir,beneficiary,devisee,orpersonalrepresentative,titletothefineartshallpasstothatperson.d.Nothinginthissubdivisionshallaffecttherightsofauthorshipcreatedinsubdivision(d)ofthissection.7.Noactionmaybemaintainedtoenforceanyliabilityunderthissectionunlessbroughtwithinthreeyearsoftheactcomplainedoforoneyearafterdiscoveryoftheact,whicheverislonger.8.ThissectionshallbecomeoperativeonJanuary1,1980,andshallapplytoclaimsbasedonproscribedactsoccurringonorafterthatdatetoworksoffineartwhenevercreated.9.Ifanyprovisionofthissectionortheapplicationthereoftoanypersonorcircumstanceisheldinvalidforanyreason,theinvalidityshallnotaffectanyotherprovisionsorapplicationsofthissectionwhichcanbeeffectedwithouttheinvalidprovisionorapplication,andtothisendtheprovisionsofthissectionareseverable.

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Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 220 of 300 CaliforniaCivilCode,Section9891.TheLegislatureherebyfindsanddeclaresthatthereisapublicinterestinpreservingtheintegrityofculturalandartisticcreations.Asusedinthissection:a."Fineart"meansanoriginalpainting,sculpture,ordrawing,oranoriginalworkofartinglass,ofrecognizedquality,andofsubstantialpublicinterest.b."Organization"meansapublicorprivatenot-for-profitentityorassociation,inexistenceatleastthreeyearsatthetimeanactionisfiledpursuanttothissection,amajorpurposeofwhichistostage,display,orothenivisepresentworksofarttothepublicortopromotetheinterestsoftheartsorartists.c."Costofremoval”includesreasonablecosts,ifany,fortherepairofdamagetotherealpropertycausedbytheremovaloftheworkoffineart.2.Anorganizationactinginthepublicinterestmaycommenceanactionforinjunctiverelieftopreserveorrestoretheintegrityofaworkoffineartfromactsprohibitedbysubdivision(c)ofSection987.3.‘Indeterminingwhetheraworkoffineartisofrecognizedqualityandofsubstantialpublicinterestthetrieroffactshallrelyontheopinionsofthosedescribedinsubdivision(f)ofSection987.4.CurrentStatutoryLanguagea.Ifaworkoffineartcannotberemovedfromrealpropertywithoutsubstantialphysicaldefacement,mutilation,alteration,ordestructionofsuchwork,noactiontopreservetheintegrityoftheworkoffineartmaybebroughtunderthissection.However,ifanorganizationofferssomeevidencegivingrisetoareasonablelikelihoodthataworkofartcanberemovedfromtherealpropertywithoutsubstantialphysicaldefacement,mutilation,alteration,ordestructionofthework,andispreparedtopaythecostofremovalofthework,itmaybringalegalactionforadeterminationofthisissue.Inthatactiontheorganizationshallbeentitledtoinjunctiverelieftopreservetheintegrityoftheworkoffineart,butshallalsohavetheburdenofproof.Theactionshallcommencewithin30daysafterfiling.Noactionmaybebroughtunderthisparagraphiftheorganization’sinterestinpreservingtheworkofartisinconflictwithaninstrumentdescribedinparagraph(1)ofsubdivision(h)ofSection987.Iftheowneroftherealpropertywishestoremoveaworkoffineartwhichispartoftherealproperty,butwhichcanberemovedfromtherealpropertywithoutsubstantialharmtosuchfineart,andinthecourseoforafterremoval,theownerintendstocauseorallowthefinearttosufferphysicaldefacement,mutilation,alteration,ordestruction.theownershalldothefollowing:.Iftheartistorartist'sheir,legatee,orpersonalrepresentativefailstotakeactiontoremovetheworkoffineartafterthenoticeprovidedbyparagraph(2)ofsubdivision(h)ofSection987,theownershallprovide30days‘noticeofhisorherintendedactionaffectingtheworkofart.Thewrittennoticeshallbeadisplay

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Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 221 of 300 advertisementinanewspaperofgeneralcirculationintheareawherethefineartislocated.Thenoticerequiredbythisparagraphmayrunconcurrentlywiththenoticerequiredbysubdivision(h)ofSection987.i.Ifwithinthe30-dayperiodanorganizationagreestoremovetheworkoffineartandpaythecostofremovalofthework,thepaymentandremovalshalloccurwithin90daysofthefirstdayofthe30-daynotice.ii.Iftheworkisremovedattheexpenseofanorganization,titletothefineartshallpasstothatorganization.Ifanorganizationdoesnotagreetoremovetheworkoffineartwithinthe30-dayperiodorfailstoremoveandpaythecostofremovaloftheworkoffineartwithinthe90-dayperiod,theownermaytaketheintendedactionaffectingtheworkoffineart..Toeffectuatetherightscreatedbythissection,thecourtmaydothefollowing:Awardreasonableattorney‘sandexpertwitnessfeestotheprevailingparty,inanamountasdeterminedbythecourt.Requiretheorganizationtopostabondinareasonableamountasdeterminedbythecourt..Noactionmaybemaintainedunderthissectionunlessbroughtwithinthreeyearsoftheactcomplainedoforoneyearafterdiscoveryofsuchact,whicheverislonger..ThissectionshallbecomeoperativeonJanuary1,1983,andshallapplytoclaimsbasedonactsoccurringonorafterthatdatetoworksoffineart,whenevercreated..Ifanyprovisionofthissectionortheapplicationthereoftoanypersonorcircumstancesisheldinvalid,suchinvalidityshallnotaffectotherprovisionsorapplicationsofthissectionwhichcanbegiveneffectwithouttheinvalidprovisionorapplication,andtothisendtheprovisionsofthissectionareseverable.

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CERTIFICATION
l,SabdiSanchez,CityClerkAdministratoroftheCityoflndio,California,herebycertifythatResolutionNo.10113wasdulyandregularlyadoptedatameetingoftheCityCouncilofsaidCityatitsmeetingheldonthe18thdayofSeptember2019,bythefollowingvote,towit:

Ayes:Ortiz,Holmes,MillerandRamosAmithNoes:NoneAbsent:FermonINWITNESSWHEREOF,IhavehereuntosetmyhandandaffixedtheofficialsealoftheCityoflndio,California,this18thdayofSeptember2019.

SABDANCHEZ,CCityClerkAdministratorCityoflndio

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Art In Public Places
Deaccession Form
City of Indio Public Arts Commission

Title: History of
Transportation
Artist: Duane Flatmo
Object
Classification:

Mural Dimensions/Material:

Accession
Date:
1997 Accession Method: Commission
Associated
Program:

Mural Program Deaccession Request
Date:

November 8, 2022

ARTIST STATEMENT

CRITERIA FOR DEACCESSIONING:

☒

1. The condition of the artwork requires restoration in gross excess of its aesthetic value, or is in such a deteriorated state that restoration would prove unfeasible or impractical, or impossible.

☒

2. The artwork requires excessive or unreasonable maintenance; has faults in design, materials, or workmanship; or repair or remedy is impractical or unfeasible or would compromise the integrity of the original artwork

☐

3. The work has been found to have been falsely documented, fraudulent or in violation of existing copyright laws.

☐

4. The condition or security of the artwork cannot be reasonably guaranteed, or the City cannot properly care for or store the work.

☐

5. In the case of site -specific artwork, significant changes in the use or character of the site where the artwork is located threatens the artwork’s survival or significantly adversely affects or diminishes the artistic integrity of the art work or its accessibility

☐

6. Due to unforeseen causes the artwork has become potentially hazardous to the public or presents a threat to public safety

☐

7. If the artwork has been lost, stolen, or is missing, the artwork may be deaccessioned as long records the City keeps all records relating to the artwork.

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DEACCESSION COST $7,925.00

RATIONALE

A narrative stating reasons and request for the deaccession of the artwork.

This mural is in very bad condition and requires excessive repair including removal of the mural and repainting the entire mural , which is impractical and unfeasible.

Staff has contacted the original artist, Duane Flatmo, for consultation and right of first refusal. The Artist has indicated that the mural is beyond repair and he is no longer painting murals.

INDEPENDENT CONDITION ASSESSMENT OF ARTWORK:

If applicable, an independent professional conservator’s report of the current condition of the artwork, treatment recommendations, treatment costs, and recommended maintenance

Assessment applicable?
☒ YES (see attached report) ☐ NO

If NO, explain below.

INDEPENDENT APPRAISAL OF THE VALUE OF ARTWORK:

If applicable, an independent professional appraisal, or an estimate of value of the work based on recent documentation of gallery and auction sales.

Appraisal applicable?
☐ YES (see attached report) ☒ NO

If NO, explain below.

This is an outdoor mural.

ARTIST NOTIFICATION
If applicable information regarding notification to the artist or the artist’s designated heir(s), or legally recognized representative(s), and artist’s response.

Notification applicable?
☒ YES (see method and dates) ☐ NO (see rationale)

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If NO, explain below.

If Yes, indicate methods and dates and see attached correspondence if applicable.

Notification
Attempt Method of Notification Date of
Notification
Result of Notification/
Response
#1
Email Duane Flatmo 08/03/2022 Response received on
08/05/2022 stating that
the mural looks like it is
gone almost too far to
restore.
#2 Email Duane Flatmo 08/06/2022 No response
#3 Email Duane Flatmo 09/06/2022 No response
#4 Email Duane Flatmo 10/20/2022 No response

METHOD OF REMOVAL
A recommendation of the method of deaccession (see Appendix A of Resolution 10113 for full description) including but not limited to:
☐ 1. Sale of the Artwork to the Artist or other Third Party

☐ 2. Relocation of public display

☐ 3. Disclaim Authorship

☐ 4. Exchange of Artwork

☒ 5. Alteration, modification or destruction (clarify is space below)

☐ 6. Removal and storage of artwork

☐ 7. Donation of artwork

☒ 8. Other (clarify in space below)

If Other, explain below.

To remove the mural entirely and to repaint the entire wall, where the Mural existed

Deaccession Recommended to City Council.

☒ YES ☐ NO

Commission Chair: Bill Schinsky Date: November 8, 2022

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Lic. #1020500 / Bonded & Insured

City of Indio RG CONTRUCTION
Sun Gold St. 82788 OLEANDER AVE.

Indio Ca. 92201 INDIO, CA 92201

THANK YOU FOR YOUR BUSINESS
AMOUNT
Paint existing wall Approx. 100 ft. x 20 ft.

Pressure wash wall
Remove scale paint off wall
Prep wall and get ready for paint
Paint approx. 100 ft. x 20 ft. wall

NOTE. Contractor will cover sidewalk and any Additinoal area to be Protected From over spray
NOTE. Contractor will Provide all materials and Labor to complete Job

NOTE. City of Indio will determined color for wall

TOTAL $ 7,925.00

AGENDA ITEM #9.13
Mural Deaccession and Restoration: Approve (1) Deaccession of History of... Page 243 of 300 Indio Mural Restoration Proposal: (For the Old Indio Mural and Mary Ann’s Bakery Mural) Restoration Services for Old Indio: I would primarily address the most obviously damaged and problematic areas, (mostly on the bottom half) focusing on re-adhering the peeling paint as well as fill and repaint where most needed. I would also remove and/or repaint the areas where there is any over paint remaining from a previous clean/removal attempt of said paint. The final step would be a coat of sealer over the whole thing. Restoration Services for Mary Ann’s Bakery: The primary focus on this mural would be to address the top portion. There is a fair bit of cleaning that needs to be done which may include some power washing. There are some areas of peeling paint that need to be addressed on the top and bottom, which I would treat similarly to the Old Indio Mural. There are also a few areas of graffiti that need to be removed and repainted. And again the final step would be a coat of sealer over the whole thing. Total base fee for both projects: $5,500 Fee Breakdown: • Labor for Old Indio Restoration $3,000 -Materials $500 (paint, primer, sealer, consumables & any additional tools) -Potential extra costs Scissor Lift per week $525 (Or $229 per day) • Labor for Mary Ann’s Bakery Restoration $1,635 -Materials $300 (paint, primer, sealer, consumables & any additional tools) -Power washer $65 per day (for one day) This price was carefully considered keeping in mind my love for the work, my desire to establish a working relationship with the City of Indio Arts Commission and the difficulty of each project’s respective location. Time Line: • At this point I would most likely be starting the restoration work beginning mid February. I would want to work on both projects back to back/simultaneously (Overlap may occur depending on need of tools and material usage). My goal would be to finish both projects with-in a period of 5-6 weeks, but may take longer if unforeseen issues arise during production. I would need the area around each mural blocked off (especially for Mary Ann’s Bakery).

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City Council
November 16, 2022

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Kevin H. Snyder, Dir. Of Community Development Subject: Ordinance No. 1789, a Development Agreement between the City of Indio and Bravo Collection, LLC and finding said adoption is exempt from further environmental review pursuant to the provisions of Section 15004 of the California Environmental Quality Act (CEQA) Guidelines

RECOMMENDATION:

Waive full reading of Ordinance No. 1789 and request the City Clerk to read the ordinance by title only

SUMMARY:

Development Agreement for operation of short -term rentals between the City of Indio and Bravo Collection, LLC

BACKGROUND INFORMATION:

Bravo Collection, LLC has submitted for and paid required fees for consideration of a Development Agreement (City File N o. DA-22-07-38) with the City of Indio for for the development of certain real property to use as a residential community that includes and would allow for the development, permitting, operation and use of up to sixteen (16) residences constructed or be co nstructed within the site as short -term rentals pursuant to Chapter 37 of the Indio Municipal Code. Bravo Collection, LLC has requested that the term of the Development Agreement be fifty (50) years from the effective date of the Agreement and this term would be in effect unless terminated, modified or extended.

The certain real properties are comprised of the following parcels: Parcel 1: (APN: 616 -489-039), Parcel 2: (APN: 616-480-037), Parcel 3: (APN: 616 -480-035), Parcel 4: (APN: 616 -471-011), Parcel 5: (APN: 616-471-010), Parcel 6: (APN: 616-471-009), Parcel 7: (APN: 616-471-008), Parcel 8: (APN:
616-471-012), Parcel 9: (APN: 616 -471-013), Parcel 10 (APN: 616 -471-014), Parcel 11: (APN: 616 - 471-015), Parcel 12: (APN: 616-471-005), Parcel 13: (APN: 616-471-06), Parcel 14: (APN: 616-471- 017), Parcel 15: (APN: 616 -471-021), Parcel 16: (APN: 616 -471-022), Parcel 17: (APN: 616 -480- 0012), Parcel 18: (APN: 616-480-043), Parcel 19: (APN: 616-480-023), Parcel No. 20 (APN: 616-471- 020), Parcel 21 (APN: 616 -471-019), Parcel No 22 (APN: 616 -480-011), Parcel No. 23 (APN: 616 - 480-045). These properties are located northwest of the intersection of Madison Street and Avenue 50 within the corporate limits of the City of Indio.

For the October 26, 2022 Planning Commission public hearing for this Development Agreement, the City published a legal notice in the October 14, 2022 edition of the Desert Sun, the newspaper of AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 246 of 300 record and mailed a notice of public hearing to all property owners of record within 300 feet of the site on October 14, 2022.

The public benefit derived from the City entering into the proposed Development Agreement is addressed in Section 1.4 (B) of the Agreement. Specifically, this Section identifies the imposition of a Housing Community Benefits Fee th at will be an additional 1% of the gross receipts for all amounts charged by the Developer to be paid annually concurrent with the Developer's payment of any applicable Business License Tax for each of the 16 properties. This amount will be deposited in th e City's General Fund and can be available for any lawful municipal purposes, but the intention is to use these funds to help mitigate the effect that short-term rental housing has on the local housing market, including but not limited to down payment assistance and rental assistance programs.

DEVELOPMENT AGREEMENTS - STATUTORY REQUIREMENTS

Finding (s):

California Government Code Section 65865 (a) specifies that any city, county, or city and county, may enter into a development agreement with any per son having a legal or equitable interest in real property for the development of the property as provided in this article. Bravo Collection, LLC has legal ownership interest in the existing sixteen (16 parcels of land that are addressed in the proposed Development Agreement.

California Government Code Section 65865.1 specifies that procedures established pursuant to Section 65865 shall include provisions requiring periodic review at least every 12 months, at which time the applicant, or successor in inter est thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the local agency finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the local agency may terminate or modify the agreement. Section 4.3 of the proposed Development Agreement specifies periodic review at least once every 12 months and requires that the City find the Developer is in compliance with the provisions of the Development Agreement.

California Government Code Section 65865.2 specifies that a development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provi sions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be completed within a specified time and that the agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time. The proposed Development Agreement specifies a term of fifty (50) years from the effective date of the Development Agreement. The Development Agreement specifically focuses on the operation of 16 single-family residences as short-term rentals pursuant to Chapter 37 of the Indio Municipal Code. The 16 single -family residences are separately regulated by the applicable zoning regulations and prior development approvals for the affected properties relative to permitted uses, density and intensity of uses, height and size of proposed buildings and dedication of land for public purposes. The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

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California Government Code Section 65865.4 specifies that unless amended or canceled pursuant to Section 65868, or modified or suspended pursuant to Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the city, county, or ci ty and county entering the agreement, which alters or amends the rules, regulations, or policies specified in Section 65866. The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single - family residences as short-term rentals.

California Government Code Section 65866.A specifies that unless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and cons truction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth h erein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of these existing or new rules, regulations, and policies. The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

California Government Code Section 65867 specifies that a public hearing on an application for a development agreement shall be held by the planning agency and by the legislative body and Notice of intention to consider adoption of a development agreement shall be given as pro vided in Sections 65090 and 65091 in addition to any other notice required by law for other actions to be considered concurrently with the development agreement. The proposed Development Agreement was considered by the City of Indio Planning Commission, th e City's planning agency, in a duly noticed public hearing format on October 26, 2022. The City Council is scheduled to consider the Planning Commission's recommendation at its November 16, 2022 regular meeting.

California Government Code Section 65867. 5 (a) specifies that a development agreement is a legislative act that shall be approved by ordinance and is subject to referendum. The City Council will consider potential first reading of an ordinance pertaining to the Development Agreement at its November 16, 2022 regular meeting with the second reading tentatively scheduled for its December 7, 2022 regular meeting.

California Government Code Section 65867.5 (b) specifies that a development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan. The 16 parcels of land were previously considered and approved in September 2004 by the City of Indio through Zone Change No. 04-7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04 -7-40 and was reviewed pursuant to the adopted General Plan and zoning regulations in effect at the time - there is no adopted specific plan applicable to the subject site. The subject site compris ing the 16 parcels of land has received previously entitlement approvals as part of the Stonefield 100 Project and is legally authorized for the construction of 16 single-family residential structures.

Conclusion (s):

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Based on the preceding findings, the proposed Development Agreement is consistent with statutory regulations pertaining to the review, consideration, public noticing and authorization of a Development Agreement.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)

Finding (s):

Pursuant to Section 15004 of the California Environmental Quality Act (“CEQA”) Guidelines, a public agency may enter into a preliminary agreement regarding a project regarding a project prior to its approval (s), provided that such agreement shall not commit an agency to the project. California State law requires that each city adopt a general plan to describe its long -term goals and its policies and programs to achieve those goals. Pursuant to the requirements of the State of California Government Code Section 65300 et. seq., the City of Indio previously prepared a comprehensive update of its General Plan in September 2019 known as General Plan 2040 that contains certain elements, describes its long-term goals. Accordingly, the general plan is a long-range, comprehensive document that serves as a guide for the orderly development of the City of Indio. Also, in September 2019, the City Council certified the Program Final Environmental Impact Report (PFEIR) for the General Plan 2040.

The City of Indio previously issued in September 2004, a Mitigated Negative Declaration (MND) for the Stonefield 100 Project comprised of: Zone Change No. 04 -7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04 -7-40. The subject site was part of the Stonefield 100 Project. The proposed project is a development agreement pertaining to short-term rentals for single- family residential lots already considered under the California Environmental Quality Act (CEQA) environmental review for the aforementioned Stonefield 100 Project.

Conclusion (s):

Pursuant to the provisions of CEQA Guidelines Title 14, Subsection 15004, the Community Development Director determined that the entering into said development agreement is consistent with the provisions of Subsection 15004.b.4 and that there is no substantive change in environmental conditions that require further environmental analysis, therefore, no such analysis is required for consideration and action for the proposed Development Agreement.

PLANNING COMMISSION CONSIDERATION AND RECOMMENDATION:

The Planning Commission conducted a duly noticed public hearing for the proposed Development Agreement on October 26, 2022. The applicant presented to the Commission during the public hearing portion for the agenda item, however, there was no other written or verbal testimony submitted into the record. Following the close of the public hearing and deliberation, the Commission approved a motion vote to recommend to the City Council the approval of the Development Agreement.

PUBLIC NOTICE FOR CITY COUNCIL PUBLIC HEARING:

A notice of public hearing for the City Council's November 16, 2022 public hearing for the Development Agreement was published in the November 2, 2022 edition of the Desert Sun, the newspaper of record. Mailed notices were sent to property owners of record within 300 feet on all sides of the perimeter of the project site on October 31, 2022.

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ATTACHMENTS:

Attachment2_LocationVicincityMap
Attachment3_Chaper37_ShortTermRentalRegulations
Attachment1_OrdinanceNo1789_DevelopmentAgreementCOIBravoCollectionLLC_Exhibit

APPROVAL(S):

Kevin H. Snyder, Dir. Of Community Development Approved - 04 Nov 2022 Steven Graham, City Attorney Approved - 08 Nov 2022
Hector Orozco, Senior Accountant Approved - 08 Nov 2022 Bryan H. Montgomery, City Manager Approved - 08 Nov 2022

AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 250 of 300 *IMPORTANT* Maps and data are to be used for reference purposes only. Map features are approximate, and are not necessarily accurate to surveying or engineering standards. The County of Riverside makes no warranty or guarantee as to the content (the source is often third party), accuracy, timeliness, or completeness of any of the data provided, and assumes no legal responsibility for the information contained on this map. Any use of this product with respect to accuracy and precision shall be the sole responsibility of the user. © Riverside County GIS
Legend
Location & Vicinity Map for DA 22-07-38 (Bravo Collection, LLC) Notes
REPORT PRINTED ON... 10/14/2022 1:12:31 PM
0 1,505752 Feet
Parcels
Blueline Streams
City Areas

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AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a...Page 252 of 300 CHAPTER37:Section37.001Purpose37.002Definitions37.003Authorizedagentorrepresentative37.004Permitrequirement37.005Short-termrentalpermitapplication37.006Inspection37.007Applicationinvestigation37.008Approvalordenialofpermit37.009Permitnontransferable/nopropertyrights37.010Permitexpirationandrenewal37.011Changeinmailingaddressandpropertyownership;ceaseuseasashort-termrental37.012Operationalrequirementsandstandards37.013Short-termrentalregistry37.014Hostingplatformrequirements37.015Prohibitedactivities37.016Permitsuspension,modificationorrevocation37.017Noticeandappeals37.018Violationsandpenalties37.019Recordkeeping37.020Requirementsnotexclusive37.021Administrationandadministrativeregulations Thede?nitionssetforthinthissectionshallgovernthemeaningandconstructionofthewordsandphrasesusedinthischapter,exceptwherethecontextofsuchwordsandphrasesclearlyindicatesadifferentmeaningorconstruction.APPLICABLELAWS,RULESANDREGULATIONS.Anylaws,rules,regulationsandcodes(whetherlocal,stateorfederal)pertainingtotheuseandoccupancyofaprivatelyowneddwellingunitasashort-termrental. §37.001PURPOSE.(A)Thepurposeofthischapteristoestablishregulationsfortheuseofprivatelyownedresidentialdwellingunitsasshort-termrentalstominimizesecondaryimpactsofsuchusesonsurroundingresidentialneighborhoodsandtoensurethecollectionandpaymentoftransientoccupancytaxes.(B)Thischapterisnotintendedtoprovideanyownerofresidentialpropertywiththerightorprivilegetoviolateanyprivateconditions,covenantsandrestrictionsapplicabletotheowner'spropertythatmayprohibittheuseofsuchowner'sresidentialpropertyforshort-termrentalpurposesasdefinedinthischapter.(Ord.1766,passed12-14-21)§37.002DEFINITIONS.

AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 253 of 300 BEDROOM.Anareaofashort-termrentalnormallyoccupiedandbeingheatedorcooledbyanyequipmentforhumanhabitation,whichconsistsoffourwallstotheceiling,atleastoneofwhichislocatedalonganexteriorwallwithawindow,andcontainsabuilt-incloset.CLUSTERorCOMPOUND.Anytwoormoreshort-termrentalsthatoperateonaunifiedorsharedbasiswhereoccupantsofsuchshort-termrentalshaveexclusiveaccesstomorethanoneshort-termrentaland/orthefacilitiesofsuchshort-termrentals,includingbywayofexample,aswimmingpool,tenniscourt,orcookingfacilities.COACHELLAV ALLEY .TheterritorywithintheboundariesofthecitiesofDesertHotSprings,PalmSprings,CathedralCity,RanchoMirage,PalmDesert,IndianWells,LaQuinta,Indio,Coachella,andtheunincorporatedareaofRiversideCountythatiswithintheterritorialboundariesofthePalmSpringsandDesertSandsUnifiedSchoolDistrict,andthatportionoftheCoachellaValleyUnifiedSchoolDistrictlocatedwithinRiversideCounty,assuchboundariesmaybeadjustedfromtimetotimeasallowedforunderthelaw.CONTRACT.Awrittenagreementorevidenceofanytenancythatallowsorprovidesfortheshort-termrentalofproperty.HOSTINGPLATFORM.Apersonorentitythatparticipatesintheshort-termrentalbusinessbycollectingorreceivingafee,directlyorindirectlythroughanagentorintermediary,forconductingabookingtransactionusinganymediumoffacilitation.HOSTINGPLATFORMSusually,thoughnotnecessarily,conductbookingtransactionsthroughaninternet-basedplatformthatallowsanoperatororownertoadvertisearentalunitonawebsiteprovidedbytheHOSTINGPLATFORMandpotentialrenterstoarrangeuseandpayment,whethertherenterpaysrentdirectlytotheoperator,ownerortheHOSTINGPLATFORM.LOCALCONTACTPERSON.Thepersondesignatedbytheownerwhoshallbeavailable24hoursperday,sevendaysperweekforthepurposeof:(1)respondinginpersontotheshort-termrentalwithin30minutestocomplaintsregardingthecondition,operation,orconductofoccupantsoftheshort-termrentalunit;and(2)takingremedialactiontoresolveanysuchcomplaints.TheLOCALCONTACTPERSONmustresideintheCoachellaValley.MULTI-FAMILYHOUSING.Anycomplex,structureoraportionofastructurezoned,usedand/ordesignatedasrentaldwellingsandthatincludestwoormoreindependentdwellingunits.Thisincludes,butisnotlimitedto,duplexes,triplexes,quadriplex,apartments,andtownhouses.OCCUPANT.Anindividualofanyagethatispresentonthepropertyduringthedurationoftheshort-termrentalcontractedstay.AnOCCUPANTmayalsobearesponsibleperson.Personshiredbytheownertoperformbonafidecleaning,maintenance,landscaping,construction,repairorsimilarservicesonthepropertywillnotbeconsideredtobeOCCUPANTS,providedsaidpersonsaresolelyengagedinactivitiesdirectlyrelatedtotheservicesforwhichtheywerehired.OWNER.Theperson(s),corporation(s)orotherlegalentity(ies)thatho|d(s)legaland/orequitabletitletothepropertyusedasashort-termrental.PERMITandRENEW ALPERMIT.Apermitthatallowstheuseofaprivatelyownedresidentialdwellingunitasashort-termrentalpursuanttotheprovisionsofthischapter.PERMITADMINISTRATOR.TheFinanceDirectororsuchothercityemployeeasmaybedesignatedbytheCityManagertoadministertheprovisionsofthischapter.PROPERTYAresidentiallegallotofrecordonwhichashort-termrentalislocated.RECREATIONALVEHICLE.Avehicleintendedfortemporaryoccupancy,withorwithoutamotor,includingwithoutlimitationanyautomobile,motorhome,traveltrailer,truckcampers,campingtrailers,parktrailers,fifthwheeltrailers,housecars,trailercoaches,slideinorpopupcampers,truckcampers,tenttrailersandanyboatorhouseboat.RESPONSIBLEPERSON.Thesignatoryonthecontractforashort-termrentaland/oranyperson(s)occupyingtheshort-termrentalwithoutacontractandwhomislegallyresponsibleforensuringthatalloccupantsoftheshort-termrentalcomplywithallapplicablelaws,rulesandregulationspertainingtotheuseandoccupancyofthesubjectshort-termrentalunit.SHORT-TERMRENTAL.Anyprivatelyownedresidentialdwelling,asdefinedbythecity'szoningordinance,thatisofferedforrentand/orrentedbytheownertoanotherpartywithorwithoutacontractforoccupancy,dwelling,lodging,orsleepingpurposesforaperiodofnotmorethan30consecutivecalendardaysinexchangeforanyformofmonetaryornon-monetaryconsideration,includingbutnotlimitedtotrade,fee,swaporanyotherconsiderationinlieuofcashpayment.Theterm"dwelling"doesnotincludeanyimpermanent,transitory,ormobilemeansoftemporarylodgingthatislocatedonthesamepropertyastheSHORT-TERMRENTAL,includingbutnotlimitedtoavehicleparkedontheproperty,storagesheds,mobilehomes,recreationalvehicles(RVs),cartrailers,boatsorsimilarwatercrafts,oranytemporarystructure,includingbutnotlimitedtocampingtentsandtreehouses.(Ord.1766,passed12-14-21)

AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 254 of 300 Anownermayauthorizeanagentorrepresentativetocomplywiththerequirementsofthischapteronbehalfoftheowner("owner'sagent"),unlesstherequirementistobefulfilledsolelybytheowner.Notwithstanding,theownershallnotberelievedfromanypersonalliabilityfornoncompliancewithanyprovisionsofthischapterorwithanyapplicablelaws,rulesandregulationspertainingtotheuseandoccupancyofthesubjectshort-termrental,regardlessofwhethersuchnoncompliancewascommittedbytheowner'sagentortheoccupantsoftheowner'sshort-termrentalortheirguests.Failureofanowner'sagenttocomplywiththischaptershallbedeemednoncompliancebytheowner.(Ord.1766,passed12-14-21) §37.003AUTHORIZEDAGENTORREPRESENTATIVE.
§37.004PERMITREQUIREMENT.(A)Noowneroranyotherperson,shalladvertise,cause,allow,conduct,permit,maintainorfacilitateashort-termrentalatanyresidentialdwellingunitinthecitywithoutfirstobtainingapermitpursuanttothischapter,andcomplyingwithallotherapplicableprovisionsofthelndioMunicipalCode("MunicipalCode")suchasthemaintenanceofabusinesslicenseassetforthinChapter110oftheMunicipalCodeandcompliancewiththecity'stransientoccupancytaxordinancesetforthinChapter34oftheMunicipalCode.(B)Failuretoobtainaninitialpermitorrenewalpermitbeforerentingand/oradvertisingtheshort-termrentalshallresultinfines,penaltiesandotherremediesasprovidedforinthischapter,includingbutnotlimitedtofuturedenialofsuchpermit.(C)Thepermitshallbevalidonlyforthenumberofbedroomsthecityestablishesaseligibleforlistingasashort-termrental.(Ord.1766,passed12-14-21) (A)Theownerisrequiredtosubmitanapplication,signedbytheowner,andobtainapermitfromthecitypursuanttotheprovisionsofthischapter,beforerentinganyshort-termrental.TheapplicationshallbeintheformprovidedforbythecityandshallbesubmittedtothePermitAdministrator.(B)Theshort-termpermitapplicationandannualrenewalapplicationshallbeaccompaniedbyanapplicationfeeintheamountestablishedbyresolutionoftheCityCouncil.(C)Theownershallsubmitthefollowinginformationand/ordocumentsaspartofitsapplicationorrenewalapplication:(1)Thename,address,telephonenumberandemailaddressoftheowneroftheproperty;(2)Acopyoftheowner'scurrentstate-issueddriver'slicenseoridentificationcard;(3)Thename,address,telephonenumbersandemailaddressesofanyothernaturalpersons,limitedliabilitycompaniesorpersonalorfamilytruststhatholdanyfinancialinterestsinthepropertyaswellascopiesoflegaldocumentscreatingsuch?nancialinterests;(4)Thename,address,telephonenumberandemailaddressoftheowner'sauthorizedagentorrepresentative,ifany;(5)Thename,address,telephonenumberandemailaddressofthelocalcontactpersonavailable24hoursaday;(6)Theaddressoftheshort-termrental;(7)Thenumberofbedroomsandtheapplicableoccupancylimitoftheshort-termrental;(8)Aparkingplanindicatingtheareaswhereparkingislegallyavailableonthepropertyforallvehiclesbelongingtotheoccupants;(9)TheUniformResourceLocator(URL)(i.e.,websiteaddress)foranyandalladvertisementsoftheshort-termrentaloftheproperty;(10)Aphotoofthefrontoftheshort-termrentalsufficienttoallowthecitytovisuallyidentifytheunit;(11)AnexecutedindemnificationandholdharmlessagreementintheformapprovedbytheCityAttorney;(12)SuchotherinformationasthePermitAdministratordeemsreasonablynecessarytoadministerthischapter. §37.005SHORT-TERMRENTALPERMITAPPLICATION.

AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 255 of 300 (D)Ifashort-termrentalislocatedonapropertyinanyareagovernedbyahomeowners‘associationorcommunityassociation("association")andsubjecttocovenants,conditionsandrestrictions("CC&Rs"),theapplicantshallsubmitaletterfromtheassociation'sgoverningboardstatingthattheCC&Rsandtherulesandregulationsoftheassociationdonotprohibitshort-termrentalsfromoperating,includingtheshort-termrentalproposedbytheapplicant.Forshort-termrentalssubjecttoCC&Rsbutnotwithinanassociation,acopyoftheCC&Rsshallbesubmittedwiththeapplicationandtheapplicantshallidentifytherelevantprovisionsthatdemonstratethatshort-termrentalsareneitherregulatednorclearlyprohibitedbytheCC&Rs.Apermitshallnotbeissuedwhereshort-termrentalsareprohibitedbytheCC&Rs.(E)Thepermitapplicationshallincludeanaffidavitsignedbytheownerunderpenaltyofperjuryattestingthatalltheinformationintheapplicationiscorrectandthattheownermaintainsfullresponsibilitythattheshort-termrentalshallbeadvertised,rented,operatedandmaintainedincompliancewiththischapterandallotherrelevantprovisionsoftheMunicipalCode.(F)Theownershallprovideproofofgeneralliabilityinsurancethatcoverstherentalofthepropertyasashort-termrentalintheaggregatesumofnotlessthan$1,000,000.Alternatively,theownercanprovideevidencethateachrentaloccursthroughaplatformthatprovidesequalorgreaterinsurancecoverage.Proofofinsuranceshallbeprovidedatthetimeofbothinitialpermitandrenewalpermitissuanceandshallremainineffectforthedurationoftheannualpermit.Failuretomaintainliabilityinsuranceshallresultinsuspensionofthepermit.(G)Thepermitapplicationshallbeaccompaniedbyaconsenttoinspectionformsignedbytheownerofthepropertybywhichtheowneragreesandconsentstoabuilding,?reandhealthandsafetyinspectioninadditiontotheinspectionfeeintheamountestablishedbyresolutionoftheCityCouncil.Noinspectionshalloccurthatisinconsistentwithanindividual'sfourthamendmentrightsundertheUnitedStatesConstitutionorotherwiseinviolationofrightsguaranteedbylaw.(Ord.1766,passed12-14-21)§37.006INSPECTION.(A)Priortotheissuanceofanewpermitorarenewalpermit,thecityshallconductabuilding,?reandhealthandsafetyinspectionoftheshort-termrentalforcompliancewiththischapter,includingverifyingthenumberofbedroomsthatwereoriginallypermittedandauthorizedundertheoriginalcerti?cateofoccupancyforthepropertyaswellasverifyingthatnospacehasbeenconvertedintoabedroomorlivingspacewithoutallrequiredpermits.Aninspectionconductedbycitystaffwillberequiredforeveryapplicationforanewpermitforashort-termrentalandeveryfiveyearsthereafterforthesameshorttermrentalpermitaslongastheownerhasbeenincompliancewiththischapter.Intheinterveningyears,theownershallrenewthepermitinthemannersetforthinthischapterandinlieuofacityinspection,theownermaysubmitaself-certi?cationsignedbytheowneronaformapprovedbythecity.Notwithstanding,thecityreservestheabilitytorequireacity-conductedinspectionatthetimepermitrenewalforanyreason.(B)Theowneroftheshort-termrentalshallensurethatthepropertycomplieswithallapplicablecodesregarding?re,building,healthandsafety,zoningandallotherlawsandregulations.Nopermitshallbeissuediftheshort-termrentaldoesnothavefunctioningsmokeandcarbonmonoxidedetectors,HV AC,electricityorplumbing,orifthestructurehasbeensubstantiallymodifiedinanywaythatrequiredabuildingpermitfromthecityandapermitwasnotobtained,orthecitydeterminesthatanyotherconditionsarepresentonthepropertythatwouldpresentathreattothehealth,safetyorwelfareoftheoccupants.(C)Inspectionoftheshort-termrentalbycitystaffshallbescheduledwithin30daysofreceiptofacompletedapplication.Ifcorrectionsarerequired,theownershallcompletethecorrectionswithin30daysofbeingnotifiedbythecity.AnextensionmaybeprovidedbythePermitAdministrator,however,failuretomakethecorrectionsshallresultinthedenialofthepermit.Are-inspection(andaccompanyingreinspectionfee)mayberequiredwithrespecttothecorrections.(Ord.1766,passed12-14-21)§37.007APPLICATIONINVESTIGATION.(A)Uponreceiptofacompletedapplication,thePermitAdministratorshallcauseaninvestigationoftheapplicantandtheapplicationassubmitted.Aspartoftheinvestigation,thenumberofbedroomsinashort-termrentalshallbeverifiedbythePermitAdministratorusingCountyAssessorand/orcitybuildingrecords,priortotheissuanceofapermit.(B)Thecityshallhaveupto30daystoprocesstheapplication,however,nopermitshallbeissueduntilsuchtimeastheapplicationinvestigationiscomplete.Theapplicantshallbenotifiedoftheresultinwriting.(Ord.1766,passed12-14-21)§37.008APPROV ALORDENIALOFPERMIT.

AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 256 of 300 (A)If,asaresultoftheinvestigationconductedbythecity,theapplicantisfoundtosatisfyalloftherequirementsofthischapterandnogroundsfordenialexist,theapplicationshallbeapproved,andapermit(orrenewalpermit)shallbeissuedtotheapplicant.(B)ThePermitAdministratorshalldenyanapplicationforapermit(orrenewalpermit)ormayrevoke,suspendormodifyapermitifanyofthefollowingfindingsaremade:(1)Informationcontainedintheapplication,orsupplementalinformationrequestedfromtheapplicant,isfalseormisleadinginanymaterialdetail;(2)Theownerfailedtoprovideacompleteapplication,afterhavingbeennotifiedoftherequirementtoproduceadditionalinformationordocuments;(3)Theownerisdelinquentinpaymentofanycitytaxes,assessments,fines,orpenaltiesinrelationtoshort-termrental;(4)Iftheownerhashadapriorshort-termrentalpermitsuspendedorrevokedorhasbeencitedforviolatinganyprovisionoftheMunicipalCoderelatingtoanyshort-termrentalpropertyinthecitywithinthepast12months;(5)Theapplicanthasfailedtopayanypreviousadministrative?nes,remediateanyotherviolations,and/orcompleteanyotheralternativedispositionassociatedwithapreviousviolationofthischapterrelatedtotheoperationofashort-termrental;(6)Ifthereisevidencethatanygoverningdocuments,includingCC&Rs,ofacommoninterestdevelopment,ortherulesorregulationsenactedbytheassociationgoverningthecommoninterestdevelopment,prohibittheuseofapropertyforshort-termrentalpurposes;(7)Theapplicanthasfailedtodemonstrateanabilitytoconformtotheoperationalrequirementsandperformancestandardssetforthin§37.012;(8)If,atthetimethepermitapplicationisbeingsubmitted,thecityhascommencedanyenforcementproceedingsagainsttheownerwithrespecttothepropertyforwhichtheownerseeksapermitorrenewalofapermit;(9)Theshort-termrentaldoesnotcomplywithallapplicablecodesregarding?re,buildingandsafetyandotherrelevantlaws,ordinanceorregulations,includinganyconditionsplacedonthepermitbythecity.Ifthepermitapplicationisdenied,writtennoticeofsuchdenialandthereasonsthereforeshallbeprovidedtotheapplicant.(C)ThePermitAdministratorshallhavetheauthoritytoimposeadditionalconditionsonthepermitfortheuseofanyshort-termrentaltoensurethatanypotentialsecondaryeffectsuniquetothesubjectrentalunitareavoidedoradequatelymitigated.Suchconditionsincludebutarenotlimitedto,amitigatingconditionthatwouldrequiretheinstallationofanoisemonitoringdevicetokeeptime-_stampednoiseleveldatafromthepropertythatwillbemadeavailabletothecityuponcity'sreasonablerequest,oroccupancycountingdevicethatmonitorsthenumberofpersonsattheproperty.(D)Thepermitshallcontainthename,addressofthepermittee,adescriptionoftheshort-termrentaltobeoffered,thenumberofbedroomseligibleforlisting,themaximumoccupancy,thedateofissuanceandtermofthepermit,apermitregistrationnumber,andthesignatureofthePermitAdministratororhisorherdesignee.(E)Within30daysoftheissuanceoftheshort-termrentalpermitorrenewalofsuchpermit,thecityshallmailanoticetoallownersandoccupantsofresidenceswithin500feetoftheparcelboundariesoftheshort-termrentalnotifyingtheresidentsthatapermithasbeenissuedandprovidinginformationregardinghowtolodgecomplaints,ifany,regardingtheshort-termrental.(Ord.1766,passed12-14-21) Apermitgrantedpursuanttothischaptershallnotbetransferabletoanotherperson,entity,assessor'sparcelnumberortoanotherpropertyowner.Inaddition,theissuanceofapermitorrenewalpermitdoesnotgivetheowneranyvestedpropertyrightsandanysuchpermitshallnotrunwiththelandorpropertytowhichitapplies.(Ord.1766,passed12-14-21) §37.009PERMITNONTRANSFERABLE/NOPROPERTYRIGHTS.
§37.010PERMITEXPIRATIONANDRENEW AL.(A)Permitshallbevalidfor12monthsfromthedateofissuance,andshallautomaticallyexpireandbecomenullandvoidontheanniversarydateofitsissuanceoruponsaleortransferoftheproperty.ThePermitshallberenewed

AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 257 of 300 annuallytoremainvalid.Aninvalidpermitisequivalenttonothavingapermit.(B)Anownermayapplyforapermitrenewalonaformprovidedbythecitysubmittedatleast60dayspriortotheexpirationofhisorheractiveshort-termrentalpermit.Thepermitrenewalapplicationshallbeprocessedinthesamemannerasanapplicationforanewpermitandshallbeapprovedordeniedassetforthin§37.008.ApplicationsreceivedafterthedeadlinebutbeforetheexpirationofthepermitmaybeacceptedatthediscretionofthePermitAdministrator. (A)Compliancebyowner,agentsandoccupants.Theownerand/orowner'sagentshallusereasonablyprudentbusinesspracticestoensurethepropertyusedasashort-termrentalisusedinamannerthatcomplieswithallapplicablelaws,rulesandregulationspertainingtoitsuseandoccupancy,anincludingapplicablecodesregarding?re,buildingandsafety,andshallfurtherusereasonablyprudentbusinesspracticestoensuretheoccupantsoftheshort-termrentaldonotcreatenoiseinviolationofChapter950ofthelndioMunicipalCodeorotherdisturbances,engageindisorderlyconduct,orviolateanyapplicablelaw,ruleorregulationpertainingtotheuseandoccupancyofthesubjectshort-termrental.(B)Overnightmaximumoccupancylimits.(1)Theownershalllimitovernightoccupancyoftheshort-termrentaltoaspecificnumberofoccupants.Overnightoccupancyshallnotexceedfourpersonsplusnomorethantwopersonsperbedroomwithineachshort-termrentalassetforthinthechartbelow.Asusedinthissection,OVERNIGHTOCCUPANCYshallmeanduringthehoursof10:00p.m.through8:00a.m.ofthefollowingday.Bedrooms OccupancyBedrooms Occupancy0-Studio 4 (C)Paymentoftherenewalfeeshallbepaidwiththesubmissionofthepermitrenewalapplication.(D)Permitrenewalsaresubjecttoanyinterveningchangesinthischapterandrenewalshallbedeniediftheshort-termrentalnolongerqualifiesundertherequirementsofthischapter,unlessspecificallyexemptedtherefrom.(E)Ifarenewalapplicationisnotsubmittedandthefeesnotpaidbytheexpirationoftheexistingpermit,theownerisrequiredtosubmitanapplicationforapermitasifitwasanewshort-termrentalaccompaniedbyanapplicationfeeandalatepenaltyfee.Theshort-termrentalmayalsobesubjecttoaninspectionconductedbycitystaff.(Ord.1766,passed12-14-21)§37.011CHANGEINMAILINGADDRESSANDPROPERTYOWNERSHIP;CEASEUSEASASHORTTERM (A)Uponachangeofownershipofapropertylicensedtooperateasashort-termrental,theowner(i.e.,selleroftheproperty)shallnotifythecityofsuchchangeimmediately.Theexistingpermitisnullandvoidandthepropertyshallceaseoperatingasashort-termrentalimmediately.Thenewownermaysubmitanapplicationandanapplicationfeeforanewpermit,whichmustbeobtainedpriortorentingthesubjectpropertyasashort-termrental.(B)Withintendaysofachangeinmaterialfactspertainingtotheinformationsubmittedbytheownerinthepermitapplication,theownershallsubmitanamendmenttotheapplicationintheformprovidedbythecityandtheapplicablefee.Thecityshallprocesstheamendmentinthesamemannerasanewapplicationandaftercompletionofitsinvestigationshallnotifytheowneroftheresultinwriting.(C)Anychangestotheowner's,owner'sagentand/orlocalcontactperson'smailingandemailaddressesand/ortelephonenumberandchangesofthelocalcontactpersonshallbeimmediatelysubmittedtothePermitAdministratorandshallnotrequirethesubmissionofanapplicationforanewpermit.(D)Ifanownerdeterminestoterminatetheshort-termrentaluse,theownerorowner'sagentshallwithintendaysnotifythePermitAdministratorandrequestcessationoftheshort-termrentalpermit.Insuchcase,theownerorowner'sagentshallpromptlyremoveanyandalladvertisementsoftheshort-termrental.Norefundsshallbeprovidedtotheownerincaseofcancellationofthepermit. * (Ord.1766,passed12-14-21)§37.012OPERATIONALREQUIREMENTSANDSTANDARDS.

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Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 258 of 300 3 104 125 146 167 188ormore 20(2)Anyshort-termrentallocatedonaparcelorlotthatis14,500squarefeetormoreinsize,mayhaveagatheringofuptoandincluding40persons.Suchgatheringsshallcomplywiththeapplicableoperationalstandardsandregulationsofthischapterexceptthatnospecialeventpermitisrequired.(3)Anygatheringof25to39personsatashort-termrentallocatedonaparcelorlotthatislessthan14,500squarefeetinsizeoragatheringof41personsormoreatashort-termrentalrequiresaspecialeventpermitpursuanttotheprocesssetforthin§§159.476etseq.orassuchotherprocessassetforthin§37.021ofthelndioMunicipalCode.(C)Minimumageofrenter.Theownershallnotrentashort-termrentaltoapersonthatisundertheageof21.(D)Maintenanceofrentalcontractstocity.Ownersshallmaintainallshort-termrentalcontracts(inelectronicorpaperform)foraperiodofthreeyearsfromthedateofoccupancy.Theexactnumberofoccupantsshallbeincludedinthecontractaswellasallcitymunicipalcoderequirementsregulatingoccupancylimits,noise,outdooramplifiedmusicprohibition,publicnuisance,parking,trash,nocommercialactivitiesandothercoderequirementsrelatedtotheuseandoccupancyoftheshort-termrental.(E)Submissionofinformationalform.Theownershallobtainfromtheresponsiblepersonan"informationalform,"intheformprovidedbythecity,whichcontainsbutisnotlimitedtothefollowing:(a)thename,address,telephonenumberandacopyofthevalidgovernmentidentificationoftheresponsibleperson;(b)alistofthenamesofalloccupantsoftheshort-termrental;and(c)alistofallvehicleinformationandlicenseplatenumbersoftheresponsiblepersonandoccupantsandguests.ThePermitAdministratorisauthorizedtoamendtheinformationrequiredintheinformationalformpursuanttoadoptionofanadministrativeregulationassetforthin§37.021.(F)Priortooccupancyprocedures.Priortooccupancyofashort-termrental,theownerorowner'sagentorrepresentativeshalladviseoforrequirethefollowingfromtheresponsibleperson:(1)Providetheresponsiblepersonwiththelocalcontactperson's24-houravailabilityinformation;(2)Requiretheresponsiblepersontoexecutetheinformationalformandanacknowledgmentform,whichprovidesthatresponsiblepersonunderstandsthatheorsheislegallyresponsibleforcompliancebyalloccupantsoftheshort-termrentalandtheirguestswithcompliancewithallapplicablelaws,rulesandregulationspertainingtotheuseandoccupancyoftheshort-termrentalandthattheresponsiblepersonmustbepresentatthepropertyduringthedurationoftheshort-termrentalperiod("acknowledgmentform").Boththeinformationalformandtheacknowledgmentformshallbemaintainedbytheownerforaminimumofthreeyearsandbemadereadilyavailableuponrequestofthecity.(G)Postingofpermitandowner'slocalcontactperson.Theownershallpostacopyoftheshort-termrentalpermit,thenameandphonenumberofthelocalcontactpersonandanoticeintheformrequiredbythecityoftheapplicableregulationsneartheprimaryentranceinsideoftheshort-termrental.(H)Twenty-fourhouravailability.Duringtheperiodofashort-termrental,theownerorowner'sagencyand/ortheowner'slocalcontactpersonshallbeavailable24hoursperday,sevendaysperweektorespondtocomplaintsfromthirdpartiesregardingthecondition,operation,orconductoftheoccupantsoftheshort-termrental,includingrespondinginpersonatthelocationoftheshort-termrental.Thelocalcontactperson'sresponsetocomplaintscanbemadebytelephone,textmessageorinperson,however,innoeventshalltheresponsetimeexceed15minutesifrespondingbytelephoneortextor45minutesifanin-personresponseisrequiredbecauseoftheseverityofthecomplaint.Ifthelocalcontactpersoniscontacteddirectlybythecity,thelocalcontactpersonshallrespondwithin15minutesofthecity'stelephonecallortextmessage.Ifthecityrequestsanin-personresponse,thelocalcontactpersonshallrespondinpersonatthelocationoftheshort-termrentalwithin45minutesofthecity'srequest.Inallcircumstances,complaintsthattheoccupantsoftheshort-termrentalhascreatedunreasonableorunlawfulnoiseordisturbancesinviolationofChapter95oftheMunicipalCodeortheprovisionsofthischapterorisengagingindisorderlyconduct,requiresanin-personresponsebythelocalcontactperson.(I)Ampli?edsound.Ataminimum,theoccupantsoftheshort-termrentalshallcomplywiththenoisestandardsidentifiedinChapter95CoftheMunicipalCode.NotwithstandinganyotherprovisionoftheMunicipalCode,noradioreceiver,musicalinstrument,phonograph,compactdiskplayer,loudspeaker,karaokemachine,soundamplifier,orany

AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 259 of 300 machine,deviceorequipment(includingacellularphoneorothersimilardevice)thatproducesorreproducesanysoundthatisaudiblefromtheoutsideofanyshort-termrentalbeyondthepropertylinebetweenthehoursof9:00p.m.to8:00a.m.SundaythroughThursdayand10:00p.m.and8:00a.m.FridayandSaturday.Anymachine,deviceorequipmentthatamplifiesmusicinsideanyshort-termrentalshallnotbeheardbeyondthepropertylineoftheshort-termrentalatalltimesatanytimeofdayornight.(J)Noiseoutsideofshort-termrental.Occupantsoftheshort-termrentalshallbeprohibitedfromusingalloutdooramenitiesand/orengaginginoutdoorgamesoranyoutdooractivitiesthatcreatenoisebetweenthehoursof9:00p.m.to8:00a.m.SundaythroughThursdayand10p.m.and8a.m.FridayandSaturday.Asignstatingtheserestrictionsmustbeclearlyvisiblenearanysuchspa/poolandpostedonallinteriordoorsleadingtotheexterioramenities.(K)Trashcontainers.Theownerand/oroccupantsshallnotallowtrashandrefusetobestoredwithinpublicview,exceptinpropercontainersforthepurposeofcollectionbythecity'sauthorizedwastehauleronscheduledtrashcollectiondaysandincompliancewithSection95AoftheMunicipalCode.Theowneroftheshort-termrentalshallprovidesufficienttrashcollectioncontainersandservicetomeetthedemandoftheoccupants.(L)Nocommercialvehiclesorstorageofdeliveredmaterials.Theshort-termrentaluseshallnotinvolvetheuseofcommercialvehiclesforthedeliveryofmaterialstoandfromthepremisesbeyondthosecommercialvehiclesnormallyassociatedwithresidentialusesnorstorageofdeliveredmaterialsbeyondthoseitemswhichwouldnormallybeassociatedwitharesidentialuseofpropertybytheowner,oranyoccupant.(M)Nocommercialactivities.Theownershallusereasonablyprudentbusinesspracticestoensurethattheshort-termrentalisusedforresidentialpurposesonly.(N)Retentionofresidentialcharacter.Theownerofashort-termrentalshallnotchangetheresidentialcharacteroftheoutsideappearanceoftheresidence,eitherbytheuseofcolors,materials,lightingand/oradvertisingmechanism.(0)Requiredinformationforadvertisements.Theownershallincludethecurrentpermitregistrationnumberonorinanyadvertisementappearinginanynewspaper,magazine,brochure,televisiontradepaper,internetwebsite,etc.,thatpromotestheavailabilityorexistenceoftheshort-termrentalinaplaceorlocationdeemedacceptablebythePermitAdministratorinthefollowingformat:"CityoflndioShort-TermRentalPermitNo.Inthecaseofaudio-onlyadvertisingofthesame,thepermitnumbershallbereadaspartoftheadvertising.Inaddition,thefollowingshallbeclearlyidentifiedinanyadvertisement:(1)maximumoccupancy;(2)thenumberofpermittedbedrooms;(3)maximumnumberofvehiclesallowed;and(4)aphotoofthefrontoftheshort-termrental.(P)Transientoccupancytax.Theownerand/orowner'sagentshallcomplywithallprovisionsof§§34.35through34.48oftheMunicipalCodeconcerningtransientoccupancytaxes,including,butnotlimitedto,submissionofareturninaccordancewith§34.41oftheMunicipalCode,whichshallbefiledevenifthevacationrentalunitwasnotrentedduringeachsuchreportingperiod.(Q)Submissionofinternetlistings.Allinternetlistingsites(e.g.websiteURLs)andlistingnumbersassociatedwithashort-termrentalshallbesubmittedtothecitybytheownerorowner'sagentwithin30daysofapprovaloftheshort-termrentalpermitandanyrevisionsthereaftershallbesubmittedtothePermitAdministrator.(R)Modi?cationofoperationalrequirementsandstandards.TheoperationalrequirementsandstandardsmaybemodifiedbythePermitAdministratoruponrequestoftheownerbaseduponsite-specificcircumstancesforthepurposeofallowingreasonableaccommodationofashort-termrentaloccupantasmayberequiredbystateorfederaldisabilitylaws.Allrequestsmustbeinwritingandshallidentifyhowthestrictapplicationofthestandardconditionscreatesanunreasonablehardshiptoapropertysuchthat,iftherequirementisnotmodified,reasonableuseofthepropertyforashort-termrentalwouldnotbeallowed.Anyhardshipsidentifiedmustrelatetophysicalconstraintstothesubjectsiteandshallnotbeself-inducedoreconomic.Anymodi?cationsofthestandardconditionsshallnotfurtherexacerbateanalreadyexistingproblem.(Ord.1766,passed12-14-21)§37.013SHORT-TERMRENTALREGISTRY .Thecityshallmaintainanonlineregistryofactiveshort-termrentalpermits,whichhostingplatformsmayreferenceandreplyuponforthepurposesofcomplyingwith§37.014ofthiscode.Ifaresidentialdwellingorotherpropertypurportingtobeashort-termrentalmatcheswithanaddress,permitnumber,and/orcurrentandvalidpermitdatessetforthinthecity'sonlineregistry,thehousingplatformsmaypresumethattheresidentialdwellingorotherpropertyhasacurrentandvalidshort-termrenalpermit.(Ord.1766,passed12-14-21)§37.014HOSTINGPLATFORMREQUIREMENTS.

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Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 260 of 300 (A)Hostingplatformsshallberesponsibleforcollectingallapplicabletransientoccupancytaxandremittingthesametothecity.(B)Subjecttoapplicablelaws,hostingplatformsshalldisclosetothecityonaregularbasiseachshort-termrentallistinglocatedinthecity,thenamesofthepersonsresponsibleforeachsuchlisting,theaddressofeachsuchlisting,thelengthofstayforeachsuchlistingandthepricepaidforeachstay. A (C)Hostingplatformsshallberequiredtoprompthoststoincludethecity-issuedpermitregistrationnumberintheirlisting(s),inaformatdesignatedbythecity.Hostingplatformsshallnotcompleteanybookingtransactionforanyresidentialdwellingorotherpropertypurportingtobeashort-termrentalinthecityunlessitislistedonthecity'sregistrycreatedunder§37.013,atthetimethehostingplatformreceivesafeeforthebookingtransaction.(D)Ahostingplatformoperatingexclusivelyontheinternet,whichoperatesincompliancewithsubsections(A),(B)and(C)above,shallbepresumedtobeincompliancewiththischapter.(E)Theprovisionsofthissectionshallbeinterpretedinaccordancewithotherwiseapplicablestateandfederal|aw(s)andwillnotapplyifdeterminedbythecitytobeinviolationof,orpreemptedby,anysuch|aw(s).(Ord.1766,passed12-14-21) (A)Noperson,includinganowner,shallrent,offertorent,oradvertiseforrentabalcony,patio,swimmingpoolorotheroutdoorareaofashort-termrental("outdoorarea")ifsuchrentaldoesnotoccurinconnectionwiththerentaloftheremainingresidenceordwellingtowhichtheoutdoorareaisattached.(B)Noperson,includinganowner,shallchargeafeeorrequestorrequireadonationforentranceintoanyshort-termrental.(C)Noperson,includinganowner,shallrent,offertorent,oradvertiseforrentstructuresnotbuiltforhabitableusesuchasbutnotlimitedtotents,trailers,treehouses,garages,storagesshedsandthelike,oranyopenspaceonthepropertyasashort-termrental.(D)Noperson,includinganowner,shallrent,offertorent,oradvertiseforrentanyimpermanent,transitory,ormobilemeansoftemporarylodgingthatislocatedonthesamepropertyastheshort-termrental,includingbutnotlimitedtoavehicleparkedontheproperty,astorageshed,mobilehomes,recreationalvehicles,cartrailers,boatsorsimilarwatercrafts,oranytemporarystructure,includingbutnotlimitedtocampingtentsandtree-houses.(E)Noperson,includinganowner,shallrent,offertorent,oradvertiseforrentoneormoreshort-termrentalsaspartofaclusterorcompound.Ashort-termrentalclusterorcompoundisprohibited.(F)Apersonwhoisrentingashort-termrentalisprohibitedfromsubleasingsuchdwellingunit,oranyportionthereof,toanyotherpersonorentity.(G)Thelesseeofalongtermrentalpropertywhichincludesbutisnotlimitedtoacondominium,multi-familyhousing,single-familydwelling,accessorydwellingunit,junioraccessorydwellingunits,mobilehomeorhousetraileronaresidentiallotorwithinamobilehomepark,oramonth-to-monthrenterofsuchproperties,isprohibitedfromusingtheirleasedorrentedpropertyasashort-termrental.(H)Theowner,lesseeorrenterofamobilehome,amanufacturedorprefabricatedhouseorofacommercialorindustrialstructureisprohibitedfromusingsuchpropertyasashort-termrental.(l)Theowner,lesseeorrenterofarecreationalvehicleisprohibitedfromusingsuchpropertyasashort-termrental.(J)Theowner,lesseeorrenterofanaccessorydwellingunitorjunioraccessorydwellingunit,asthosetermsarede?nedintheMunicipalCode,isprohibitedfromusingsuchpropertyasashort-termrental.(K)Commercialactivitiesandspecialevents,includingbutnotlimitedto,weddings,receptions,largepartiesandsaleseventsareprohibitedonthepropertyusedasashort-termrentalunlessaspecialeventpermitisobtainedpursuantto§159.476orassetforthin§37.021.(Ord.1766,passed12-14-21) (A)Inadditiontoanyotherremedyprovidedbythischapter,thePermitAdministratormaysuspend,modifyorrevokeashort-termrentalpermitforviolationsofthischapter,forviolationofanyotherlawonthepremisesoftheshort-termrental,orforthemaintenanceofsuchotherconditionsasmaybeshowntobeinjurioustothepublichealthandsafetyoriftheapplicantmadeanyfalse,misleadingorfraudulentstatementofamaterialfactintheapplicationforpermit,orany §37.015PROHIBITEDACTIVITIES.
§37.016PERMITSUSPENSION,MODIFICATIONORREVOCATION.

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Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 261 of 300 reportorrecordrequiredtobefiledpursuanttothischapter.Thepermitholdershallbenotifiedinwritingofthegroundsfordenialorforsuspension,modificationorrevocationoftheshort-termrentalandshallbenotifiedoftheirrighttoappealthedecision.(B)The.PermitAdministratormayrevokeashort-termrentalpermitforathirdorsubsequentviolationrelatedtopermittingornoiseduringthepermitterm.Thissection,however,shallnotlimitorpreventthePermitAdministratorfromrevokingashort-termrentalpermitforanysingleviolationofthischapter.(C)Anownerwhosepermitisrevokedmaynotapplyforanewshort-termrentalpermituntiloneyearafterthedateofrevocation.(D)Ifapermitissuspended,revokedordenied,allpropertyownersandoccupantsofresidenceswithin500feetoftheparcelboundariesoftheshort-termrentalshallbeprovidedwrittennoticewithintendaysofsuchaction.(Ord.1766,passed12-14-21) (A)Thedenialofanapplicationforashort-termrentalpermitortherenewalofsuchpermit,ortherevocation,suspensionormodificationofsuchpermit,maybeappealedbysubmittingawrittenappealformdetailingthebasisfortheappealandanyadditionaldocumentationtheappellantwouldliketobeconsidered.(B)ThecompletedappealformmustbedeliveredtotheCityClerkwithin15daysfromthedateoftheletterdenyingtheapplicationforapermitorrenewalpermitorrevoking,modifyingorsuspendingthepermitwassent.Theappealformmustincludepaymentofanon-refundableappealfeeintheamountestablishedbyresolutionoftheCityCouncil.Failuretodeliverthecompletedappealformand/orappealfeeasrequiredbythissubsectionwillresultinthedenialorrevocation,suspensionormodificationbeingdeemedas?nal.(C)Whiletheappealsprocessispending,theappellantisprohibitedfromengagingintheshort-termrentalofthepropertyandtheshort-termrentalpermitatissueshallnotbevalid.(D)OnceatimelyappealformhasbeenreceivedbytheCityClerk,ahearingonthemattershallbescheduledbeforetheCityManagerwithin20daysofanappealbeing?led.Theappealhearingshallbeopentothepublic.ThedecisionoftheCityManagerorthedesigneeshallbeinwritingandshallsetforththefindingsandreasonsforthedecision.ThedecisionoftheCityManagerisfinal.(E)Ifanappealisfiled,allpropertyownersandoccupantswithin500feetoftheparcelboundariesoftheshort-termrentalshallbenotifiedofthetime,date,andlocationoftheappealhearingandshallbeaffordedtherighttotestifyduringthehearing. *
(Ord.1766,passed12-14-21)
§37.017NOTICEANDAPPEALS.
§37.018VIOLATIONSANDPENALTIES.(A)Operatingashort-termrentalwithoutavalidpermitisprohibited.Advertisingshallbeprimafacieevidenceofoperation.Additionalevidenceofoperationmayinclude,butnotlimitedtoguesttestimony,onlinereviews,rentalagreementsoranyotherinformationdeemedrelevantbythecity.(B)Anypersonviolatingtheprovisionsofthischapter,includingwithoutlimitationtheowner,responsibleperson,occupantsandthelocalcontactpersonsmaybesubjecttoadministrativeand/orjudicialremediesassetforthherein.Theownerofashort-termrentalshallbedeemedresponsibleforallviolationsofthischapteroccurringattheshort-termrentalorinconnectionwithitsoperation,providedthatthisshallnotprecludethecityfromissuingfinesorcitationstooccupants,orexercisingotherremediesagainstoccupants,iftheresponsiblepersonoroccupantsaredeemedtohavecommittedtheviolation.(C)Anypersonwhoviolatesanyprovisionofthischapterisguiltyofamisdemeanor.Suchviolationispunishableassetforthin§10.99ofthiscode.Eachandeveryday,orportionthereof,thataviolationofthischapterexistsconstitutesaseparateanddistinctviolation.(D)Alternatively,anypersonwhoviolatesanyprovisionofthischaptermaybeissuedanadministrativecitationinaccordancewithChapter11ofthiscode.TheamountoftheadministrativefineshallbesetforthinascheduleoffinesadoptedbyresolutionoftheCityCouncil.Eachandeverydaysuchaviolationexistsshallconstituteaseparateanddistinctviolationofthischapter.(E)Inadditiontotheforegoing,aviolationofanyprovisionofthischaptershallconstituteapublicnuisanceandshallbesubjecttoabatementbythecitybymeansofacivilactionoradministrativeabatementpursuanttoChapter95Aofthiscode,andeachdaysuchconditioncontinuesitshallberegardedasanewandseparateoffense.

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Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 262 of 300 (F)Theremediesprovidedforinthissectionareinadditionto.andnotinlieuof,allotherlegalremedies,criminalorcivil,whichmaybepursuedbythecitytoaddressanyviolationofthischapter.(Ord.1766,passed12-14-21)§37.019RECORDKEEPING.Eachownershallmaintainallwrittenrecordsrelatedtotheuseandoccupancyoftheshort-termrental,includingbutnotlimitedtocompliancewiththeoperationalrequirementsandstandardssetforthin§37.010,foraperiodofthreeyears,forthepurposeofinspectionoraudittodeterminethattheobjectiveandconditionsofthischapterarebeingfulfilled.

Inordertofacilitateorderlyadministrationofthischapter,thePermitAdministratorshallhavetheauthoritytomakeinterpretationsofthischapterandtopromulgateadministrativeregulationsconsistentwiththeprovisionsofthischapterforthepurposeofinterpreting,clarifying,carryingout,furtheringandenforcingtherequirementsandprovisionsherein.copyofsuchadministrationregulationsshallbeonfileintheOfficeoftheCityClerk.(Ord.1766,passed12-14-21) (Ord.1766,passed12-14-21)§37.020REQUIREMENTSNOTEXCLUSIVETherequirementsofthischaptershallbeinadditiontoanylicense,permitorfeerequiredunderanyotherprovisionoftheIndioMunicipalCode.TheissuanceofanypermitpursuanttothischaptershallnotrelieveanypersonoftheobligationtocomplywithallotherprovisionsoftheIndioMunicipalCodepertainingtotheuseandoccupancyoftheshort-termrentalorthepropertyonwhichitislocated.(Ord.1766,passed12-14-21)§37.021ADMINISTRATIONANDADMINISTRATIVEREGULATIONS.

AGENDA ITEM #10.1
Ordinance No. 1789 , a Development Agreement between the City of Indio a... Page 263 of 300

1 ORDINANCE NO. 1789

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA

APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF INDIO AND

BRAVO COLLECTION , LLC AND FINDING SAID ADOPTION IS EXEMPT FR OM

FURTHER ENVIRONMENTAL REVIEW FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT PURSUANT TO THE PROVISIONS OF SECTION 15004 OF THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) GUIDELINES

WHEREAS, on July 12, 2022, Bravo Collection, LLC submitted a City of Indio application and paid required fees for consideration of a Development Agreement; and,

WHEREAS, California Government Code Section 65865 (a) specifies that any city, county, or city and county, may enter into a development ag reement with any person having a legal or equitable interest in real property for the development of the property as provided in this article; and,

WHEREAS, California Government Code Section 65865.1 specifies that procedures established pursuant to Se ction 65865 shall include provisions requiring periodic review at least every 12 months, at which time the applicant, or successor in interest thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the local agency finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the local agency may terminate or modify the agreement; and,

WHEREAS, California Government Code Section 65865.2 specifies that a development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement.

The agreement may provide that construction shall be commenced within a specified time and that the project or any phase thereof be co mpleted within a specified time and that the agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time; and,

WHEREAS, California Government Code Section 65865.4 specifies that unless amended or canceled pursuant to Section 65868, or modified or suspended pursuant to Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building

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2 regulation adopted by the city, county, or city and county entering the agreement, which alters or amends the rules, regulations, or policies specified in Section 65866; and,

WHEREAS, California Government Code Section 65866 specifies that u nless otherwise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A develop ment agreement shall not prevent a city, county, or city and county, in subsequent actions applicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the pr operty as set forth herein, nor shall a development agreement prevent a city, county, or city and county from denying or conditionally approving any subsequent development project application on the basis of these existing or new rules, regulations, and policies; and,

WHEREAS, California Government Code Section 65867 specifies that a public hearing on an application for a development agreement shall be held by the planning agency and by the legislative body and Notice of intention to consider adoption of a development agreement shall be given as provided in Sections 65090 and 65091 in addition to any other notice required by law for other actions to be considered concurrently with the development agreement; and,

WHEREAS, California Government Code Sect ion 65867.5 (a) specifies that a development agreement is a legislative act that shall be approved by ordinance and is subject to referendum; and,

WHEREAS, California Government Code Section 65867.5 (b) specifies that a development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan a nd any applicable specific plan; and,

WHEREAS, pursuant to Section 15004 of the California Environmental Quality Act (“CEQA”) Guidelines, a public agency may enter into a preliminary agreement regarding a project regarding a project prior to its approval (s), provided that such agreement shall not commit an agency to the project; and,

WHEREAS, California State law requires that each city adopt a general plan to describe its long -term goals and its policies and programs to achieve those goals.

Accordingly, the general plan is a long-range, comprehensive document that serves as a guide for the orderly development of the City of Indio and,

WHEREAS, pursuant to the requirements of the State of California Government Code Section 65300 et. seq., the City of Indio previously prepared a comprehensive update of its General Plan that contains certain elements, describes its long -term goals,

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3 and was adopted on September 18, 2019; and,

WHEREAS, pursuant to the California Environmental Quality Act (Public Resources Code § 21000 et seq.), the City as the lead agency determined that an environmental impact report should be prepared to analyze all potential adve rse environmental impacts of the Indio 2040 General Plan and the City of Indio Climate Action Plan and further determined that a program environmental impact report was appropriate for the Project; and,

WHEREAS, on September 18, 2019, the City Council ce rtified via Resolution action the Program Final Environmental Impact Report (PFEIR) for the General Plan 2040; and,

WHEREAS, the City of Indio previously issued in September 2004, a Mitigated Negative Declaration (MND) for the Stonefield 100 Project comprised of: Zone Change No. 04-7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04-7-40 of which the sixteen (16) lots that are the subject of the Development Agreement were a part of; and,

WHEREAS, on October 14, 2022, the City mail ed notices of public hearing to all property owners within 300 feet on all sides of the certain real properties affected by the Development Agreement and published a legal notice of public hearing in the Desert Sun, the newspaper of record; and,

WHEREAS, on October 26, 2022, the Planning Commission held a duly noticed public hearing to consider the Development Agreement and the facts surrounding said Agreement during which evidence, both written and oral, including the staff report and supporting documents was presented at said hearing. At the conclusion of the public hearing, the Planning Commission adopted this Resolution recommending to the City Council that it approve the Development Agreement between the City of Indio and Bravo Collection, LLC; and,

WHEREAS, on October 31, 2022, the City mailed notices of public hearing to all property owners within 300 feet on all sides of the certain real properties affected by the Development Agreement;

WHEREAS, on November 2, 2022, the City published a legal notice of public hearing in the Desert Sun, the newspaper of record; and,

WHEREAS, on November 16, 2022, the City Council held a duly noticed public hearing to consider the Development Agreement and the facts surrounding said Agreement during which evidence, both written and oral, including the staff report and supporting documents was presented at said hearing. At the conclusion of the

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4 public hearing, the City Council approved this Ordinance authorizing the Development Agreement between the City of Indio and Bravo Collection, LLC.

NOW, THEREFORE, THE PLANNING COMMISSION 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 Ordinance are true and correct, are incorporated into this Ordinance by reference and constitute a material part of this Ordinance.

Section 2. Based upon the evidence presented at the public hearing, including the staff report, the City Council hereby finds the aforementioned Development Agreement attached hereto as Exhibit “A” to be consistent with applicable California Government Code Sections and the City of Indio General Plan 2040 based on the following:

1. California Government Code Section 65865 (a) specifies that any city, county, or city and county, may enter into a development agreement with any person having a legal or equitable interest in real property for the development of the property as provided in this article. Bravo Collection, LLC has legal ownership interest in the existing sixteen (16 parcels of land that are addressed in the proposed Development Agreement.

2. California Government Code Section 65865.1 specifies that procedures established pursuant to Section 65865 shall include provisions requiring periodic review at least every 12 months, at which time the applicant, or successor in interest thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the local agency finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good fa ith with terms or conditions of the agreement, the local agency may terminate or modify the agreement. Section 4.3 of the proposed Development Agreement specifies periodic review at least once every 12 months and requires that the City find the Developer i s in compliance with the provisions of the Development Agreement.

3. California Government Code Section 65865.2 specifies that a development agreement shall specify the duration of the agreement, the permitted uses of the property, the density or intensity o f use, the maximum height and size of proposed buildings, and provisions for reservation or dedication of land for public purposes. The development agreement may include conditions, terms, restrictions, and requirements for subsequent discretionary actions , provided that such conditions, terms, restrictions, and requirements for subsequent discretionary actions shall not prevent development of the land for the uses and to the density or intensity of development set forth in the agreement. The agreement may provide that construction shall be

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5 commenced within a specified time and that the project or any phase thereof be completed within a specified time and that the agreement may also include terms and conditions relating to applicant financing of necessary public facilities and subsequent reimbursement over time. The proposed Development Agreement specifies a term of fifty (50) years from the effective date of the Development Agreement. The Development Agreement specifically focuses on the operation of 16 sing le-family residences as short-term rentals pursuant to Chapter 37 of the Indio Municipal Code.

The 16 single -family residences are separately regulated by the applicable zoning regulations and prior development approvals for the affected properties relativ e to permitted uses, density and intensity of uses, height and size of proposed buildings and dedication of land for public purposes. The proposed Development Agreement does not directly or indirectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

4. California Government Code Section 65865.4 specifies that unless amended or canceled pursuant to Section 65868, or modified or suspended pursuant to Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, a development agreement shall be enforceable by any party thereto notwithstanding any change in any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the city, county, or city and county entering the agreement, which alters or amends the rules, regulations, or policies specified in Section 65866.

The proposed Development Agreement does not directly or indir ectly address land development standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

5. California Government Code Section 65866.A specifies that unless otherw ise provided by the development agreement, rules, regulations, and official policies governing permitted uses of the land, governing density, and governing design, improvement, and construction standards and specifications, applicable to development of the property subject to a development agreement, shall be those rules, regulations, and official policies in force at the time of execution of the agreement. A development agreement shall not prevent a city, county, or city and county, in subsequent actions a pplicable to the property, from applying new rules, regulations, and policies which do not conflict with those rules, regulations, and policies applicable to the property as set forth herein, nor shall a development agreement prevent a city, county, or cit y and county from denying or conditionally approving any subsequent development project application on the basis of these existing or new rules, regulations, and policies . The proposed Development Agreement does not directly or indirectly address land deve lopment standards affecting any future discretionary approvals, but expressly focuses on the operation of the 16 single-family residences as short-term rentals.

6. California Government Code Section 65867 specifies that a public hearing on an application for a development agreement shall be held by the planning agency and by

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6 the legislative body and Notice of intention to consider adoption of a development agreement shall be given as provided in Sections 65090 and 65091 in addition to any other notice required by law for other actions to be considered concurrently with the development agreement. The proposed Development Agreement was considered by the City of Indio Planning Commission, the City's planning agency, in a duly noticed public hearing format on October 26, 2022. The City Council is scheduled to consider the Planning Commission's recommendation at its November 16, 2022 regular meeting.

7. California Government Code Section 65867.5 (a) specifies that a development agreement is a legislative act that shal l be approved by ordinance and is subject to referendum. The City Council will consider potential first reading of an ordinance pertaining to the Development Agreement at its November 16, 2022 regular meeting with the second reading tentatively scheduled f or its December 7, 2022 regular meeting.

8. California Government Code Section 65867.5 (b) specifies that a development agreement shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan.

The 16 parcels of land were previously considered and approved in September 2004 by the City of Indio through Zone Change No. 04 -7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04 -7-40 and was rev iewed pursuant to the adopted General Plan and zoning regulations in effect at the time - there is no adopted specific plan applicable to the subject site. The subject site comprising the 16 parcels of land has received previously entitlement approvals as part of the Stonefield 100 Project and is legally authorized for the construction of 16 single-family residential structures.

9. Pursuant to Section 15004 of the California Environmental Quality Act (“CEQA”) Guidelines, a public agency may enter into a preli minary agreement regarding a project regarding a project prior to its approval (s), provided that such agreement shall not commit an agency to the project. California State law requires that each city adopt a general plan to describe its long-term goals and its policies and programs to achieve those goals. Pursuant to the requirements of the State of California Government Code Section 65300 et. seq., the City of Indio previously prepared a comprehensive update of its General Plan in September 2019 known as General Plan 2040 that contains certain elements, describes its long -term goals. Accordingly, the general plan is a long-range, comprehensive document that serves as a guide for the orderly development of the City of Indio. Also, in September 2019, the Cit y Council certified the Program Final Environmental Impact Report (PFEIR) for the General Plan 2040.

10. The City of Indio previously issued in September 2004, a Mitigated Negative Declaration (MND) for the Stonefield 100 Project comprised of: Zone Change No. 04- 7-622, Tract Map Nos. 32339 and 32340, and Environmental Assessment No. 04 -7-

40. The subject site was part of the Stonefield 100 Project. The proposed project is a

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7 development agreement pertaining to short -term rentals for single -family residential lots already considered under the California Environmental Quality Act (CEQA) environmental review for the aforementioned Stonefield 100 Project.

11. Pursuant to the provisions of CEQA Guidelines Title 14, Subsection 15004, the Community Development Director has determined that the entering into said development agreement is consistent with the provisions of Su bsection 15004.b.4 and that there is no substantive change in environmental conditions that require further environmental analysis, therefore, no such analysis is required for consideration and action for the proposed Development Agreement.

Section 3. The City Council hereby approves the Development Agreement attached hereto as Exhibit “A” and authorizes the City Manager and City Attorney to execute said Agreement.

Section 4. Consistent with the provisions of California Government Code Section 65865.1 the Development Agreement attached hereto as Exhibit “A” shall be periodically reviewed at least every 12 months, at which time the applicant, or successor in interest thereto, shall be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of such periodic review, the City finds and determines, on the basis of substantial evidence, that the applicant or successor in interest thereto has not complied in good faith with terms or conditions of the agreement, the City may terminate or modify the agreement;

Section 5. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance or its application to any person or circumstance, is for any reason held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this ordinance, or it s application to any other person or circumstance. The City Council declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, phrase hereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable..

Section 6. The City Clerk shall certify to the adoption of this Ordinance and shall cause the same to be published in the manner prescribed by law.

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8 PASSED, APPROVED, and ADOPTED this 7th day of December 2022.

WAYMOND FERMON
MAYOR

ATTEST:

CYNTHIA HERNANDEZ, CMC

CITY CLERK

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RECORDING REQUESTED BY AND

WHEN RECORDED MAIL TO
City of Indio
100 Civic Center Drive
Indio, CA 92201
Attn: City Clerk
Space Above This Line for Recorder’s Use
(Exempt from Recording Fee per Gov’t Code §6103
and §27383)

DEVELOPMENT AGREEMENT BY AND BETWEEN
THE

CITY OF INDIO
AND

BRAVO COLLECTION, LLC
Exhibit "A"Page 27 of 55
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DEVELOPMENT AGREEMENT
This Development Agreement (the “Agreement”) is entered into as of the day of ______________, 2022 (“Reference Date”), by and between the CITY OF INDIO, a California municipal corporation organized and existing under the Constitution of the State of the California (“City”), and BRAVO COLLECTION , LLC , a California limited liability company, (“Developer”), with reference to the following:

RECITALS:

A. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the California Legislature adopted Government Code Section 65864 et seq . (“Development Agreement Act ”) which authorizes City to enter into a binding development agreement for the development of real property within its jurisdiction with persons having a legal or equitable interest in such real property.

B. Consistent with the Development Agreement Act, and p ursuant to Government Code Section 65865, the City has adopted Section 6.05.02 of the Unified Development Code (Ordinance No. 1782) establishing procedures and requirements for such development agreements (“Development Agreement Ordinance”).

C. Developer owns a fee interest in certain vacant real property consisting of sixteen (16) unimproved residential lots in the City of Indio, County of Riverside, State of California, as more particularly described in the legal descriptions in Exhibit A attached hereto and incorporated herein by this reference ( collectively, the “Property” and each individual parcel , and an y improvements thereon, may be referred to herein as “One of the Properties”), and more particularly depicted on the Site Map (with corresponding street addresses and APNs) attached hereto as Exhibit B , which is incorporated herein by this reference (the “Site”). The Site includes the Property and any improvements now or hereafter located thereon.

D. Developer has duly submitted an application for a development agreement and environmental assessment for the development of the Property to use as a residential community that includes and would allow for the development, permitting, operation and use of up to sixteen (16) residences constructed or be constructed within the Site as short -term rentals pursuant to Chapter 37 of the Indio Municipal Code (briefly summarized here as the “Project” and more fully defined below in this Agreement). For reference purposes only, a copy of Chapter 37, as that chapter exists on the Effective Date, is attached to this Agreement as Exhibit C. The Project is more fully described in, and subj ect to (i) this Agreement, (ii) the City’s General Plan,(iii) Final Tract Map Nos. 32339 and 332339-1, and any conditions of approval appurtenant thereto (iv) any applicable specific plan or site development permit in effect as of the Effective Date , and any conditions of approval appurtenant thereto, (v) any future discretionary or ministerial approvals and/or permits issued for the Property, Site or Project (collectively, the “Project Site Development Permits”); and (vi) Certificates of Compliance for Lot Line Adjustment 2020 -13 and Lot Line Adjustment 2006-12, and any conditions of approval appurtenant thereto. The documents, permits, approvals, and conditions described in the foregoing clauses (i) -(vi) are collec tively referred to herein as the “Project Approvals,” and are, or when approved or issued shall be, on file with the City Clerk.

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D. As of the recording date of this Agreement, Developer owns fee simple title to the Property, and by their execution of this Agreement, City and Developer consent to recordation of this Agreement against the Property, including, without limitation, each One of the Properties that comprise the Site.

E. Consistent with the Development Agreement Act and Development Agreement Ordinance, City and Developer desire to enter into a binding agreement that shall be construed as a development agreement within the meaning of the Development Agreement Act and Development Agreement Ordinance . This Agreement will eliminate uncertainty in planni ng for and secure the orderly development of the Project, ensure a desirable and functional community environment, provide effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project , and assure attainment of the maximum effective utilization of resources within the City, by achieving the goals and purposes of the Development Agreement Act and Development Agreement Ordinance . In exchange for these benefits to City, Developer desires to receive the assurance that it may proceed with development of the Project in accordance with the terms and conditions of this Agreement and the Project Approvals, all as more particularly set forth herein.

G. The Planning Commission and the City Council have determined that the Project and this Agreement are consistent with the City’s General Plan, including the goals and objectives thereof[***Add references to public hearing dates and determinations for PC and CC when scheduled***].

H. All actions taken by City have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act (“CEQA”), and all other requirements for notice, public hearings, findings, votes and other procedural matters.

I. On ___________, 2022, the City Council adopted its Ordinance No. ______ approving this Agreement.

AGREEMENT:

NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the Parties do hereby agree as follows:

1. GENERAL

1.1 Definitions

1.1.1 “Affiliated Party” shall mean (i) any person or entity that directly or indirectly owns or has voting or management rights of Developer or its members or managers, (ii) any entity that is directly or indirectly owned, controlled or managed by Developer or its members or managers, or such members’ or managers’ shareholders, or (iii) any entity that is a permitted assignee under the Pur chase/Sale Agreement which meets the criteria in either clause (i) or (ii) of this Section 1.1.1.

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1.1.2 “Agreement” means this Development Agreement and all amendments and modifications thereto.

1.1.3 “Applicable Rules ” means the rules, regulations, ordinances and officially adopted policies of the City of Indio in full force and effect as of the Effective Date of this Agreement , including, but not limited to, the City ’s General Plan, Chapter

3.25 of the Indio Municipal Code , and any applicable zoning o rdinance and specific plan.

Additionally, notwithstanding the language of this Section or any other language in this Agreement, all specifications, standards and policies regarding the design and construction of public works facilities required with respect to the Project, if any, shall be those that are in effect at the time any of said Project applications and plans are being processed for approval and/or under construction.

1.1.4 “Assignment and Assumption Agreement” shall have the meaning set forth in Section 1.8.1 of this Agreement.

1.1.5 “CEQA” means the California Environmental Quality Act (Cal. Public Resources Code Sections 21000 et seq.) and the State CEQA Guidelines (Cal. Code of Regs., Title 14, Sections 15000 et seq.).

1.1.6 “City” means the City of Indio, a municipal corporation, including each and every agency, department, board, commission, authority, employee, and/ or official acting under the authority of the City, including without limitation the C ity Council and the Planning Commission.

1.1.7 “City Council” means the City Council of the City and the legislative body of the City pursuant to California Government Code Section 65867.

1.1.8 “Community Development Director” means the Director of the City’s Community Development Department, or his or her designee.

1.1.9 “Developer” means the Developer identified in the preamble of this Agreement.

1.1.10 “Development Agreement Act ” means Section 65864 et seq., of the California Government Code.

1.1.11 “Discretionary Action ” means an action which requires the exercise of judgment, deliberation or a decision on the part of City, including any board, commission, committee, or department or any officer or employee thereof, in the process of approving or disapproving a particular acti vity, as distinguished from an activity which merely requires City, including any board, commission or department or any officer or employee thereof, to determine whether there has been compliance with statutes, ordinances , regulations, or other adopted policies.

1.1.12 “Effective Date” shall have the meaning set forth in Section

1.3 of this Agreement.

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1.1.13 “Homeowners Association ” means an incorporated or unincorporated entity formed to manage and operate the Property as a common interest development pursuant to recorded covenants, conditions and restrictions.

1.1.14 “General Plan” means the General Plan of the City.

1.1.15 “Insubstantial Modification” shall have the meaning set forth in Section 1.6(a) of this Agreement.

1.1.16 “New Laws ” means amendments or modifications to the Applicable Rules, and all ordinances, resolutions, initiatives, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commission s, departments, agencies, and committees enacted or adopted after the Effective Date.

1.1.17 “Parties” means collectively Developer and City. Each shall be referred to in the singular as a “Party”.

1.1.18 “Planning Commission ” means the City Planning
Commission and the planning agency of the City pursuant to California Government Code Section 65867.

1.1.19 “Project” means the development, improvement, use and operation of the Site as set forth in more detail in Section 3.1.

1.1.20 “Project Approvals” shall have the meaning set fort h in Recital C.

1.1.21 “Reserved Powers ” means the rights an d authority excepted from this Agreement’s restrictions on City ’s police powers and which are instead reserved to City, its City Council, Planning Commission, and all other City boards, commissions, departments, agencies, and committees. The Reserved Powers include the powers to enact or adopt New Laws or take future Discretionary Actions after the Effective Date of this Agreement that may be in conflict with the Applicable Rules and Project Approvals, except such New Laws which would prevent , or materially impair Developer ’s ability to develop the Project and/or use the Property and Site in accordance with the Project Approvals and this Agreement ; provided, however, that with respect to such New Laws which would conflict with this Agreement or prevent, or materially impair Developer’s ability to develop or use the Project in accordance with the Project Approvals, such New Laws shall apply to the P roject and the Site only if such New Laws are: (1) necessary to protect the public health and safety, and are generally a pplicable on a City-wide basis in furtherance of the identified public health and safety concern (except in the event of natural disasters as found by the City Council such as floods, earthquakes and similar acts of God, which shall apply even if not applicable on a City-wide basis); (2) amendments to Uniform Codes, as adopted by City, and/or the Indio Municipal Code, as applicable, regar ding the construction, engineering and design standards for private and public improvements to be constructed on the Property or at the Site; (3) required by a non -City governmental entity to be adopted by or applied by the City (or, if adoption is optiona l, the failure to adopt or apply such non-City law or regulation would cause the City to sustain a material loss of funds or material loss

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of access to funding or other resources, with “material loss” in this clause (3) meaning One Hundred Fifty Thousand Dollars ($150,000.00) or more, as such minimum threshold amount of $150,000 may be adjusted as of January 1 of each calendar year (the “Adjustment Date”) during the Term of this Agreement by any increases in the Consumer Price Index for All Urban Consumers for the Riverside-San Bernardino-Ontario, California areas (1982 -84=100) from the Effective Date to the applicable Adjustment Date) (4) necessary to comply with state or federal laws and regulations (whether enacted previous or subsequent to the Effective Date of this Agreement), or (5) adopted by the City on a City wide basis and applied to the Property (and each One of the Properties) and the Site in a non -discriminatory manner that does not prevent or materially impair Developer ’s ability to develop the Project and/or operate or use the Site and Project in accordance with the Project Approvals and this Agreement.

1.1.22 “Site” shall have the meaning set forth in Recital C.

1.1.23 “Site Map” means the map that shows the location of the Site (including the corresponding APNs and street addresses) and immediately adjacent properties, which is attached hereto as Exhibit B.

1.1.24 “Term” means the period of time for which the Agreement shall be effective in accordance with Section 1.2 herein.

1.1.25 “Transferee” means individually or collectively, Developer’s successors in interest, assignees or transferees of all or any portion of the Site.

1.1.26 “Uniform Codes ” means those building, electrical, mechanical, plumbing, fire and other similar regulations of a City-wide scope which are based on recommendations of a multi-state professional organization and become applicable throughout the City, such as, but not limited to, the Uniform Building Code, the Uniform Electrical Code, the Uniform Mechanical Code, Uniform Plumb ing Code, or the Uniform Fire Code (including those amendments to the promulgated uniform codes which reflect local modification to implement the published recommendations of the multi-state organization and which are applicable City-wide).

1.1.27 “Zoning Ordinance” means the Unified Development Code.

1.1.28 ”Transient” having the meaning set forth in Section 34.36 of the Indio Municipal Code.

1.2 Term.

The term of this Agreement shall commence on the Effective Date and shall continue for fifty (50) years thereafter , unless said term is otherwise terminated, modified, or extended in accordance with the express provisions of this Agreement or by mutual consent of the Parties after the satisfaction of all applicable public hearing and related procedural requirements.

1.3 Effective Date.

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This Agreement shall be effective, and the obligations of the Parties h ereunder shall be effective, as of _________________ (“Effective Date ”), which is the date that Ordinance No.__________ takes effect.

1.4 Statement of Benefits and Consideration.

1.4.1 Intent. The Parties acknowledge and agree that this Agreement confers substantial private benefits on the Developer that will place significant burdens, including both known costs and potential but currently unknown costs, on City infrastructure, services, and neighborhoods and that the private benefits provided to the Developer should be balanced with commensurate public benefits for the community (“Community Benefits”). Accordingly, City and Developer recognize and agree that but for Developer’s payments as provided herein, City would not and could not approve use of the Site for the Project as provided by this Agreement.

City’s approval of this Agreement is in reliance upon and in consideration of Developer’s agreement to make the payments required hereunder.

1.4.2 Community Benefits . In addition to Developer’s obligation to pay the City through any generally applicable fees, taxes, or other charges, Developer shall be obligated to provide Community Benefits as follows, which shall be referred to as the “Community Benefits Landscaping” and “Housing Community Benefits Fee”:
(A) Community Benefits Landscaping. City shall use reasonable best efforts to promptly secure from Coachella Valley Water District (“CVWD”) the right of the Developer to install landscaping on the vacant parcel of land owned by CVWD located at the northwest corner of Avenue 50 and Madison Street (the “CVWD Parcel”). City shall promptly notify Developer in writing once City has secured the right to install landscaping on the CVWD Parcel. Upon receipt of such notice, Developer shall, within sixty (60) days thereafter and at its own cost, prepare and submit to City plans for the installation of desert landscaping and associated irrigation improvements on the CVWD Parcel (the “Landscaping Plans”). City shall, within thirty (30) days of receipt of such plans, either approve such plans, which approval shall not be unreasonably withheld or conditioned, or submit to Developer its written objections to such plans.

Within (30) days of receipt of any such objections from the City, Developer shall submit revised plans to the City for review and approval. Once the landscaping plans are approved by the City, Developer, at its own cost, shall promptly install the desert landscaping and associated irrigation improvements (the “Desert Landscaping”) on the CVWD Parcel in accordance with the Landscaping Plans. Notwithstanding anything to the contrary set forth herein, Developer shall have no obligation to prepare the Landscaping Plans or install the Desert Landscaping if the City does not secure from CVWD the right of the Developer to install the Desert Landscaping on the CVWD Parcel within 18 months of the Effective Date of this Agreement. Developer or the Homeowners Association for the Property (ies) shall be responsible for the operation and maintenance of the Desert Landscaping once installed.
(B) Housing Community Benefits Fee . Concurrent with the Developer's payment of any generally applicable Business License Tax for each of the Properties (under Ind io Municipal Code Chapter 110), Developer shall make payment to the City of an additional 1% of the gross receipts (as that term is defined at Indio Municipal Code Section 110.01) for all amounts charged by the Developer , provided, however, that “gross rec eipts” as defined

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above shall not include security deposits received by Developer that are either refunded or used by Developer to repair or replace broken or damaged Properties or the fixtures, furnishings and/or equipment located therein. While this amount shall be placed in the general fund and be available for any lawful municipal purpose, the intention is to utilize these funds to develop programs to mitigate any effect operation of short-term rentals has on the local housing market, including, but not limited to, developing down payment assistance and rental assistance programs.

1.5 City CEQA Findings.

City finds that review of the environmental impacts of this Agreement , and the Project as a whole, has been conducted in accordance with the provisions of CEQA and the s tate and local procedural review requirements adopted thereunder. City has given consideration to such environmental review prior to its approval of this Agreement and the Project, and has undertaken all actions necessary to comply with CEQA.

1.6 Modification or Amendment of this Agreement.

Except as expressly stated to the contrary herein, t his Agreement may be modified or amended from time to time, in whole or in part, only by mutual written consent of the Parties or their succ essors in interest, consistent with Government Code Section s 65867-65868 and the following terms:
(a) Insubstantial Modifications. The Parties acknowledge that refinements and further development of the Project may demonstrate that minor changes are appropriate with respect to the details of the Project development and the performance of the parties under this Agreement. The Parties desire to retain a certain degree of flexibility with respect to the details of the Project development and with respect to those items covered in general terms under this Agreement, and thus desire to provide a streamlined method of approving insubstantial modifications to this Agreement. Therefore, any minor modification to this Agreement which does not modify (i) the Term of this Agreement; (ii) permitted uses of the Site, (iii) maximum density or intensity of use, except as specifically allowed in the Project Approvals, (iv) provisions for the reservation or dedication of land, (v) conditions, terms, restrictions or requirements for subsequent discretionary actions, or (vi) monetary obligations of Developer (hereinafter an “Insubstantial Modification”), and t hat can be processed under CEQA either as not a “project” under CEQA or as exempt from CEQA shall not require a public hearing prior to the parties executing a modification to this Agreement. Either Party may propose an Insubstantial Modification, consent to which shall not be unreasonably withheld, conditioned, or delayed by the other Party. Upon the written request of Developer for a modification to this Agreement, the City Manager or his/her designee shall determine , in his/her sole discretion : (1) wheth er, in his/her reasonable judgment, the requested modification constitutes an “Insubstantial Modification,” as defined herein; (2) whether the requested modification is consistent with Applicable Rules (other than that portion of this Agreement sought to be modified); and (3) whether, in his/her reasonable judgment, the requested modification tends to promote the goals of this Agreement. If the City Manager or his/her designee determines that the requested modification is an “Insubstantial Modification” that is consistent with Applicable Rules and tends to promote the goals of this Agreement, the proposed modification will be approved by the City as an Insubstantial Modification, and a written modification will be executed by the Parties and attached to thi s

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Agreement. Any such Insubstantial Modification shall not be deemed an “amendment” to this Agreement under Government Code Section 65858.

(b) Substantial Amendments. Except as otherwise described in Section 1. 6(a) of this Agreement, amendments to this Agreement shall be “Substantial Amendments ” which require notice and a public hearing pursuant to California Government Code Section 65868.

(d) Parties Required to Amend . Where a portion of Developer ’s rights or obligations have been transferred, assigned, and assumed pursuant to Section 1.8 of this Agreement, the signature of the person or entity to whom such rights or obligations have been assigned shall not be required to amend this Agreement unless such amendment would materially alter the rights or obligations of such assignee/transferee hereunder.

1.6.1 Effect of Amendment . Any amendment to this Agreement shall be operative only as to those specific portions of this Agreement expressly subject to the amendment, and all other terms and conditions of this Agreement shall remain in full force and effect without interruption.

1.7 Termination; Applicable to All of the Property.

Unless terminated earlier, pursuant to the terms hereof, this Agreement shall automatically terminate and be of no further effect upon the expiration of the Term of this Agreement as set forth in Section 1.2. Termination of this Agreement, for any reason, shall not, by itself, affect any right or duty arising from entitlements or approvals set forth under the Project Ap provals. Any termination of this Agreement shall affect each and every One of the Properties and the entire Property and the Site , and no owner of One of the Properties may apply for a termination or terminate this Agreement with respect to that owner’s One of the Properties unless all of the owners of the Property and each and every One of the Properties apply for and seek to terminate this Agreement for the entire Property and Site. In explanation of the foregoing, this Agreement shall apply to each One of the Properties for the entire duration of the Term, and no One of the Properties may be released from or excused for performance under this Agreement by way of terminating this Agreement for that One of the Properties, unless all of the Property and Site are released from this Agreement.

1.8 Assignment of Interests, Rights and Obligations.

Developer may transfer or assign all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in any One of the Properties, the Property and/or the Site, or any portion thereof, including, without limitation, purchasers or ground lessee(s) of lots, parcels or facilities, subject to the following:

1.8.1 Assignment and Assumption Agreements.

(a) In connection with the transfer or assignment by Developer of all or any portion of the Property and/or the Site (other than a transfer or assignment by Developer to a Mortgagee, Homeowners Association, or Affiliated Party, or to a member of the general pu blic who purchases an improved residential lot pursuant to a subdivision public report ), Developer and

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the transferee shall enter into a written agreement (an “Assignment and Assumption Agreement”) regarding the respective interests, rights and obligatio ns of Developer and the transferee in and under this Agreement. Such Assignment and Assumption Agreement may: (i) release Deve loper from obligations under this Agreement pertaining to that portion of the Property and/or Site being transferred, as described in the Assignment and Assumption Agreement, provided that the transferee expressly assumes such obligations; (ii) transfer to the transferee vested rights to develop and/or improve and use that portion of the Property and/or Site being transferred; and (iii) address any other matter deemed by Developer to be necessary or appropriate in connection with the transfer or assignment.

(b) Developer shall obtain City’s prior written consent to any Assignment and Assumption Agreement (other than a transfer or assignment by Developer to an Affiliated Party, a Mortgagee, or Homeowners Association ), which consent shall not be unreasonably withheld, conditioned or delayed. Failure by City to respond within fifteen (15) days to any re quest made by Developer for such consent shall be deemed to be City ’s unconditional approval of the Assignment and Assumption Agreement in question. City may refuse to give its consent only if, in light of the proposed transferee ’s reputation and financia l resources, such transferee would not in City ’s reasonable opinion , which opinion is supported by clear and convincing evidence, be able to perform the obligations proposed to be assumed by such transferee. Such determination shall be made by the City Manager in consultation with the City Attorney and is appealable by Developer directly to the City Council.

(c) An Assignment and Assumption Agreement shall be binding on Developer, City and the transferee provided (i) if Developer is then in default under this Agreement, such default shall be cured by Developer or the transferee as a condition of the transfer, (ii) Developer has provided notice to City of such transfer, and City has approved (or is deemed to have approved) the transfer pursuant to subparagraph (b) above, and (iii) the transferee executes and delivers to City a written agreement in which (a) the name and address of the transferee is set forth and (b) the transferee expressly and unconditionally assumes each and every obligation of Developer under this Agreement with respect to the Property and/or Site, or portion thereof, being transferred (to the extent Developer has not retained a continuing obligation ), and (c) Developer no longer has any legal or equitable interest in the Property and/or Site or the portion thereof sold or transferred, as applicable,. Upon recordation of any Assignment and Assumption Agreement in the Official Records of Riverside County, Developer shall automatically be released from those obligations assumed by the transferee therein.

(d) Developer shall be free from any and all liabilities accruing on or after the date of any assignment or transfer with respect to those obligations assumed by a transferee pursuant to an Assignment and Assumption Agreement. No breach or default hereunder by any person succeeding to any portion of Developer’s obligations under this Agreement shall be attributed to Developer, nor may Developer ’s rights hereunder be canceled or diminished in any way by any breach or default by any s uch person following Developer’s release of obligations under the Project Approvals pursuant to an Assignment and Assumption Agreement assigning Developer’s obligations to that successor.

(e) The City may assign or transfer any of its rights or obligations under

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this Agreement with the approval of the Developer, which approval shall not be unreasonably withheld.

(f) If Developer is selling one or more improved residential lots within the Site to members of the general public pursuant to a subdivision public report, then an Assignment and Assumption Agreement shall not be required with respect to the sale and conveyance of such lot or lots.

1.8.2 Transfers for Mortgages.

Any transfers or assignments for any Mortgagee shall be subject to the provisions in Article 7 of this Agreement.

1.8.3 Transfers to Affiliated Parties.

Developer, or any Affiliated Party of Developer, may at any time and without City’s prior consent, transfer all or any portion of its rights and obligations under this Agreement to any Affiliated Party of such Transferor and, in connection with the transfer of any such obligations, be released from such obligations. Developer shall deliver to City, no later than ten ( 10) days after such transfer an Assignment and Assumption Agreement memorializing the transfer of Developer’s rights and obligations under this Agreement to an Affiliated Party, along with that Affiliated Party’s contact information for notices to be delivered pursuant to this Agreement.

2. AGREEMENTS AND ASSURANCES

2.1 Agreement and Assurance on the Part of Developer.

In consideration for City entering into this Agreement, and as an inducement for City to obligate itself to carry out the covenants and condition s set forth in this Agreement, and in order to effectuate the purposes and intentions set forth in the Recitals of this Agreement, Developer hereby agrees that the terms and conditions of this Agreement, including the Project Approvals incorporated herein, shall govern development and operation of the Site for the T erm of this Agreement.

2.2 Agreement and Assurances on the Part of the City.

In consideration for Developer entering into this Agreement, and as an inducement for Developer to obligate itself to carry out the covenants and conditions set forth in this Agreement, and in order to effectuate the purposes and intentions set forth in this Agreement, City hereby agrees as follows:

2.2.1 Vested Entitlement to Develop.

Developer has the vested right to develop, improve, operate and use the Property, Site, and Project subject to the terms and conditions of this Agreement, the Applicable Rules, Project Approvals and the Reserved Powers. It is the intent of City and Developer that the vesting of

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development rights of Developer shall include the permitted land uses, densities, and intensities of use of the Property and the Site, timing or phasing of development, zoning, provisions for the reservation or dedication of land for public purposes, and the location and size of public improvements, as well as those other terms and conditions of development of the Project as set forth in this Agreement and the other Project Approvals. Developer’s vested rights under this Agreement shall also include, without limitation, the right to remodel, renovate, rehabilitate, rebuild or replace all improvements on the Property and the Site within the Project (or any portion thereof) throughout the applicable Term for any reason, including, without limitation, in the event of damage, destruction or obsolescence of the existing development or the Project or any portion thereof, subject to the terms and conditions of this Agreement, the Applicable Rules, Project Approvals and the Reserved Powers. Such vesting shall expire upon the earlier of the following occurrences: (a) termination of this Agreement, or (b) expiration of the Term of this Agreement .

Except for the expiration set forth in cla use (b) of the preced ing sentence, the expiration of the vesting right set forth in the preceding sentence shall not terminate any obligations of Developer under this Agreement that (x) have accrued prior to termination of this Agreement or (y) that expressly survive the termi nation of this Agreement , such as indemnification obligations .

Notwithstanding anything in this Agreement to the contrary, the Project shall remain subject to the following, to the same extent it would without this Agreement:
(i) all Applicable Rules, unless modified by or in conflict with the provisions of this Agreement;
(ii) the right to develop, improve, operate and use the Property (and each One of the Properties) and the Site for short-term rentals; (iii) all New Laws applied to Developer through the City’s Reserved Powers; (iv) all subsequent development approvals and the conditions of approval associated therewith, including but not limited to any further site development permits, tract maps, and building permits;
(v) the payment of all fees or exactions in the categories and in the amounts as required at the time such fees are due and payable, which may be at the time of issuance of building permits, or otherwise as specified by applicable law, as existing at the time such fees are due and payable; and (vi) the reservation or dedication of land for public purposes or payment of fees in lieu thereof as required at the time such reservations or dedications or payments in lieu are required under applicable law to be made or paid.

2.2.2 Changes in Applicable Rules.
(A) Nonapplication of Changes in Applicable Rules.

Any change in, or addition to, the Applicable Rules, including, without limitation, any change in the General Plan, any applicable specific plan, zoning or building regulation, adopted or becoming effective a fter the Effective Date, including, without limitation, any such change by

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means of ordinance, City Charter amendment, initiative, referendum, resolution, motion, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City, City Council, Planning Commission or any other board, commission, department or agency of the City, or any officer or employee thereof, or by the electorate, as the case may be, which would, absent this Agreement, otherwise be applicable to the Property, Site, and/or to the Project and which would conflict in any way with the Applicable Rules, Project Approvals, or this Agreement, or in any way reduce the development rights or assurances provided by this Agreement, shall not be applied to the Property (or any One of the Properties), Site, or Project unless such changes represent an exercise of City’s Reserved Powers, or are otherwise agreed to in this Agreement. It is expressly understood and agreed that Developer has the right to develop, improve, and use the Property (and each One of the Properties) and the Site for short-term rentals pursuant to Article 5 [SHORT-TERM RENTALS/TRANSIENT OCCUPANCY TAXES] of this Agreement. The right to apply for a new or renewal permit , and the City’s ability to review and issue a new or renewal permit, for short-term rentals on the Property (or any One of the Properties), Site, or Project, shall be allowed and authorized by this Agreement.

Notwithstanding the foregoing paragraph, Developer may, in its sole discretion, consent in writing to the application to the Property (which shall mean each One of the Properties), Site, and/or Project of any change in the Applicable Rules.
(B) Changes in Uniform Codes.

Notwithstanding any provision of this Agreement to the contrary, development and use of the Property, Site, and Project shall be subject to changes which may occur from time to time in the Uniform Codes, as such Codes are adopted by the City of Indio. (C) Changes Mandated by Federal or State Law.

This Agreement shall not preclude the application to the Property, Site, and Project of changes in, or additions to, the Applicable Rules, including rules, regulations, ordinances and official policies, to the extent that such changes or additions are mandated to be applied to developments such as this Project by state or federal regulations, pursuant to the Reserved Powers.

In the event state or federal laws or regulations prevent or preclude compliance with one or more provisions of this Agreement, such provisions shall be modified or suspended only to the extent necessary to comply with such state or federal laws or regulations.

2.2.3 Subsequent Development Review.

Except as expressly reserved in this Agreement (including the right to apply for a new or renewal permit, and the City’s review and issu ance of a new or renewal permit, for short-term rentals), nothing shall impair or interfere with the right of City to require the processing of permits as required by law pursuant to the applicable provisions of the Indio Municipal Code and the provisions of Uniform Codes.

2.2.4 Effective Development Standards.

City agrees that it is bound to permit the uses, intensities of use , and densities of development on the Property (and each One of the Properties) and Site which are permitted by this

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Agreement and the Project Approvals, insofar as this Agr eement and the Project Approvals so provide or as otherwise set forth in the Applicable Rules. City hereby agrees that it will not unreasonably withhold, delay or condition any approvals and/or permits which must be issued by City in order for the Project to proceed and for the Property and Site to be used for the authorized uses herein, provided that Developer reasonably and satisfactorily complies with all applicable procedures for processing applications for such approvals and/or permits.

3. DEVELOPER’S OBLIGATIONS

3.1 Development of the Project; Planned Development.

Developer shall construct the Project on the Site only in accordance with the Project Approvals. As depicted in the Project Approvals, as the same may be updated or amended from time to time consistent with the terms hereof, the Project shall consist of a residential single-family development specifically developed and available for residential purposes, and may be the residents’ primary residence or secondary residences, and/or may be used for short-term rentals, with the following components:
(A) Annual permitting fees to be consistent with the City’s fee program; (B) Any rental or occupancy of 30 nights or less to be subject to the City’s then-current transient occupancy tax (“TOT”) for short-term rentals; (C) The payment of any Community Benefits as described above; (D) The Developer shall operate the Site in accordance with the Applicable Rules and New Laws, as applicable; and
(E) All residences at the Site (and on each One of the Properties) shall allow for t ransient occupancy, which means occupancy for thirty (30) days or less , unless otherwise restricted by other private covenants or restrictions recorded against the Property.

3.2 Compliance with Government Code Section 66473.7
Developer shall comply with the provisions of Government Code Section 66473.7 with respect to any Tract Maps prepared for the Project.

3.3 Funding, Fees, Permits, and Approvals.

3.3.1 No Funding. Developer acknowledges that the City is not providing any funding for the Project.

3.3.2 Fees, Permits, and Approvals Governed by Municipal Code. Except for any permitting or approval process for short-term rentals that would be directly in conflict with Chapter 37 [REGULATION OF SHORT -TERM RENTALS ] of this Agreement, all permitting and processing fees (including for the permitting and processing of short-term rentals), and all permits and approvals for the Property, Site, and Project, shall be governed by the provisions of the Indio

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Municipal Code and shall be paid and performed in accordance therewith. All such f ees and applications submitted to the City shall be processed in accordance with the then-current Indio Municipal Code, including the timing provisions therein, and shall not be accorded separate treatment pursuant to this Agreement except for any permitting or approval process for short-term rentals that would be directly in conflict with Chapter 37 [REGULATION OF SHORT -TERM RENTALS] of this Agreement . All City-imposed fees, including the fees for short -term rental permitting, shall be in the amount prescribed by the Indio Municipal Code or duly adopted City Council Resolution, in effect at the time the fee is imposed.

3.3.3 Imposition of Existing and Future Fees. Nothing set forth in this Agreement is intended to or shall be construed to limit or restrict the City’s authority to impose its existing, or any new or increased , Citywide fees, charges, levies, or assessments for the development of the Property, Site, or Project , or to impose or increase, subject to the required procedure, any taxes applicable to the Property, Site, or Project, including but not limited to transient occupancy taxes.

Developer shall timely pay all applicable fees, charges, levies, assessments, and special and general taxes validly imposed in accordance with the Constitution and laws of the State of California, including without limitation school impact fees in accordance with Government Code §§ 65995 et seq.

3.4 Indemnification.

Developer shall protec t, defend, indemnify and hold harmless City and City ’s officers, officials, members, employees, volunteers, agents, and representatives (any of the foregoing shall be known individually as “Indemnitee” and collectively as “Indemnitees”), and each of them, jointly and severally, against and from any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity, of every kind or nature whatsoever, including reasonable attorneys’ fees and expert witness fees, arising out of or directly relating to construction and development-related activities on the Site by Developer, and including, without limitation, injury to or death of any person or persons and damage to or destruction of any property, threatened, brough t or instituted ( “Claims”), excluding those resulting from the negligence or willful misconduct of the City . In the event of any action, litigation, or other adversarial proceeding in any way involving the Claims specified in this section , City agrees, at no cost to City, to cooperate with Developer. Developer shall have the obligation to provide the defense of City in the action, litigation, or other adversarial proceeding, either by providing for legal counsel or, at City’s option, timely paying the legal costs incurred by City in the defense of litigation, even though negligence or gross negligence of Developer or its contractors, subcontractors, agents, employees or other persons acting on its behalf has not been established at the time that the defense is provided. In addition, Developer shall be obligated to promptly pay any final judgment or portion thereof rendered against the Indemnitee or Indemnitees.

In the event of any court action or proceeding challenging the validity of this Agreeme nt or the Project Approvals, Developer shall indemnify, hold harmless, pay all costs and provide defense for City in said action or proceeding with counsel chosen by Developer and reasonably approved by City. City shall, at no cost to City, cooperate with Developer in any such defense as

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Developer may reasonably request. In the event Developer fails or refuses to provide such defense of any challenge to this Agreement or the Project Approvals, or any component thereof, City shall have the right not to defend such challenge, and to resolve such challenge in any manner it chooses in its sole discretion, including terminating this Agreement. In the event of such termination, Developer, upon written request of City, shall immediately execute a termination doc ument or other document reasonably required by a reputable title company to remove this Agreement as a cloud on title.

3.5 Recording of Agreement.

This Agreement shall be valid and binding as of the Effective Date; provided, however, that the terms and conditions set forth in this Agreement affecting the vested rights and ability to develop and use the Property, Site, and Project as set forth herein, shall be contingent upon this Agreement being recorded in the Riverside County Recorder’s Office for Official Records.

4. CITY’S OBLIGATIONS

4.1 Processing of Building Permits.

Nothing set forth herein shall impair or interfere with the right of City to require the processing of building permits as required by law pursuant to the applicable provisions of the Indio Municipal Code and the provisions of City’s Fire Codes and ordinances, Health and Safety Codes and ordinances, and Building, Electrical, Mechanical, and similar building codes.

4.2 Project Approvals Independent.

All approvals required for the Project which may be or have been granted, and all land use entitlements or approvals generally which have been issued or will be issued by City with respect to the Project, constitute independent actions and approvals by City. If any provision of this Agreement or the applicat ion of any provision of this Agreement to a particular situation is held by a court of competent jurisdiction to be invalid or unenforceable, or if this Agreement terminates for any reason, then such invalidity, unenforceability or termination of this Agreement or any part hereof shall not affect the validity or effectiveness of any such Project approvals or other land use approvals and entitlements. In such cases, such approvals and entitlements will remain in effect pursuant to their own terms, provision s. It is understood by the Parties that pursuant to existing law, if this Agreement terminates or is held invalid or unenforceable as described above, such approvals and entitlements shall not remain valid for the term of this Agreement, but shall remain valid for the term of such approvals and entitlements.

4.3 Review for Compliance.

City shall review this Developer ’s compliance with the terms of Agreement at least once during every twelve (12) month period following the Effective Date of this Agreement, in accordance with City’s procedures and standards for such review . During such periodic review by City, Developer, upon written request from City, shall be required to demonstrate, and hereby agrees to furnish, evidence of good faith compliance with the terms hereof. The failure of City to conduct or complete the annual review as provided herein shall not impact the validity of this Agreement. If, at the conclusion of the annual review provided for herein or in accordance with

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the Development Agreement Ordinance , Developer has been found in compliance with this Agreement, City, through the Community Development Director, shall, at Developer ’s written request, issue a Certificate of Compliance to Developer stating that (1) this Agreement remains in full force and effect and (2) Developer is in compliance with this Agreement. The Certificate shall be in recordable form and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer, at its option and sole cost, may record the Certificate.

5. SHORT-TERM RENTALS USE.

5.1 Short-Term Rental Use.

5.1.1 This Agreement expressly provides that short-term rentals are a permitted use on the Property (and each One of the Properties) within the Project, and the rights to such permitted use are hereby vested pursuant to the terms of this Agreement . Except as expressly provided in this Agreement, the City shall not impose on or apply to the Project or any part thereof (whether by action of the Council, or other legislative body, or by initiative, referendum, or other measure by the City or the electorate ) any ordinance, resolution, standard, directive, condition , or other measure that would prevent, prohibit or materially impair the ability of Developer to apply for and obtain a permit and subsequently use and operate short-term rentals in all residential units within the Project. Notwithstanding the foregoing, and except as expressly provided in this Agreement, short-term rentals on the Property (and each One of the Properties) within the Project shall be subject to the Regulation of Short-Term Rentals (STR Regulations) set forth in Chapter 37 (or successor provisions) of the Indio Municipal Code, including but not limited to violations and penalties for such violations for failing to comply with the City’s STR Regulations, as long as Developer has the ability to apply for and obtain a permit and subsequently use and operate short-term rentals in all residential units within the Pro ject that are not otherwise subject to a violation or penalty preventing issuance of such permit and allowing such use for failing to comply with the City’s STR Regulations.

5.1.2 Developer shall comply with all of the provisions of Chapter 37 of the Indio Municipal Code, as they now exist or as they may be amended by the Indio City Council under the City’s Reserved Powers. As examples, and not limitations, Developer shall be obligated to comply with the following Sections of the Indio Municipal Code: 37.003 (AUTHORIZED AGENT OR REPRESENTATIVE ), 37.004 ( PERMIT REQUIREMENT ), 37.005 ( SHORT- TERM RENTAL PERMIT APPLICATION), 37.006 (INSPECTION), 37.007 (APPLICATION INVESTIGATION), 37.008 (APPROVAL OR DENIAL OF PERMIT ), 37.010 (PERMIT EXPIRATION AND RENEWAL ), 37.011 (CHANGE IN MAILING ADDRESS AND PROPERTY OWNERSHIP; CEASE USE AS A SHORT -TERM RENTAL ), 37.012 (OPERATIONAL REQUIREMENTS AND STANDARDS ), 37.013 (SHORT-TERM RENTAL REGISTRY ), 37.014 (HOSTING PLATFORM REQUIREMENTS ), 37.015 (PROHIBITED ACTIVITIES ), 37.016 (PERMIT SUSPENSION, MODIFICATION OR REVOCATION), 37.017 (NOTICE AND APPEALS ), 37.018 (VIOLATIONS AND PENALTIES), 37.019 (RECORDKEEPING), 37.020 (REQUIREMENTS NOT EXCLUSIVE), and 37.021 (ADMINISTRATION AND ADMINISTRATIVE REGULATIONS).

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5.2 Transient Occupancy Tax.

All short-term rentals in the Project shall be subject to, and comply with, the applicable provisions of the City’s transient occupancy tax ordinance as set forth in Chapter 34 of the Indio Municipal Code. To the extent the City revises it s transient occupancy tax o rdinance after the Effective Date of this Agreement, all short-term rentals in the Project will be subject to those revised or amended provisions unless doing so would violate the vested rights set forth in Section

5.1 of this Agreement. It is the intent of this provision to require, at all times, that all short-term rentals in the Project comply with the City’s requirements and procedures for collecting, reporting and paying the applicable transient occupancy tax, including as those requirements and procedures may be modified during the term of this Agreement.

6. DEFAULT; REMEDIES; DISPUTE RESOLUTION.

6.1 Notice of Default.

In the event of failure by either Party substantially to perform any material term or provision of this Agreement , the non -defaulting Party shall have those rights and remedies provided herein, provided that such non-defaulting Party has first provided to the defaulting Party a written notice of default in the manner required by Section 8.1 hereof identifying with specificity the nature of the alleged default and the manner in which said default may satisfactorily be cured.

6.2 Cure of Default.

Upon the receipt of the notice of default, the alleged defaulting Party shall promptly commence to cur e, correct, or remedy the identified default at the earliest reasonable time after receipt of the notice of default and shall complete the cure, correction or remedy of such default not later than thirty (30) days after receipt of the notice of default, or, for such defaults that cannot reasonably be cured, corrected or remedied within thirty (30) days, such Party shall commence to cure, correct, or remedy such default within such thirty (30) day perio d, and shall continuously and diligently prosecute such cure, correction or remedy to completion.

6.3 City Remedies.

In the event of an uncured default by Developer of the terms of this Agreement, City, at its option, may institute legal action in law or in equity to cure, correct, or remedy such default, enjoin any threatened or attempted violation, or enforce the terms of this Agreement; provided, however, that in no event shall City be entitled to consequential, punitive or exemplary damages for any Developer default. For purposes of this Agreement the term “consequential damages ” shall include, but not be limited to, potential loss of anticipated tax revenues from the Project or any portion thereof. Furthermore, City, in addition to or as an alternative to exercising the remedies set forth in this Section 6.3, in the event of a material uncured default by Developer, may give notice of its intent to terminate or modify this Agreement pursuant to the Development Agreement Act, in which event the matter shall be scheduled for consideration and review by the City Council in the manner set forth in the Development Agreement Act.

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6.4 Developer’s Excusive Remedies.

The Parties acknowledge that the City would not have entered into this Agreement if it were to be liable in damages under, or with respect to, this Agreement or any of the matters referred to herein including, but not limited to, the Project Approvals, the Applicable Rules or any future amendments or enactments thereto , or the Project. Accordingly, Developer covenants on behalf of itself and its successors and assigns, not to sue the City for damages or monetary relief (except for attorneys’ fees as provided for by Section 8.22) for any breach of this Agreement by City or arising out of or connected with any dispute, controversy, or issue between Developer a nd City regarding this Agreement or any of the matters referred to herein including but not limited to the application, interpretation, or effect of this Agreement, the Project Approvals, the Applicable Rules or any future amendments or enactments thereto , or the Project, or any land use permits or approvals sought in connection with the development of the Project or any component thereof, or use of a parcel or any portion thereof, the parties agreeing that declaratory and injunctive relief, mandate, and specific performance shall be Developer’s sole and exclusive judicial remedies.

7. MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE

7.1 Encumbrances on the Project Site.

This Agreement shall not prevent or limit Developer from encumbering the Site or any portion thereof or any improvements thereon with any mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Site, or a porti on thereof or interest therein, is pledged as security, and contracted for in good faith and fair value (a “Mortgage”) securing financing with respect to the construction, development, use or operation of the Project.

7.2 Mortgage Protection.

This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquis ition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a holder of a beneficial interest under a Mortgage, or any successor or assignee to said holder (a “Mortgagee”), whether pursuant to foreclosure, trustee’s sale, deed in lieu of foreclosure, lease termination or otherwise , shall be subject to all of the terms and conditions of this Agreement.

7.3 Mortgagee Not Obligated.

No Mortgagee will have any obligation or duty under this Agreement to perform the obligations of the Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that (i) the Mortgagee shall have no right to develop or operate the Site without the written consent of the City , and (ii) to the extent that any covenant to be performed by the Developer is a condition to the performance of a covenant by the City, the performance thereof by Mortgagee shall continue to be a condition precedent to the City ’s performance hereunder.

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7.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.

With respect to any mortgage or deed of trust granted by Developer, whenever City may deliver any notice or demand to Developer with respect to any breach or default by Developer in completion of construction of the Project or any component of the Project, City shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage or deed of trust which has previously requested such notice in writing. Each such holder shall (insofar as the rights granted by City are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such def ault and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is understood that a holder shall be deemed to have satisfied the sixty (60) daytime limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Site (or portion thereof) if and to the extent any such holder has within such sixty (60) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default.

8. MISCELLANEOUS

8.1 Notices, Demands and Communications Between the Parties.

Any approval, disapproval, demand, document or other notice ( “Notice”) which either Party may desire to give to the other Party under this Agreement must be in writing and shall be sufficiently given if (i) delivered by hand, (ii) delivered by reputable same -day or overnight messenger service that provides a receipt showing date and time of delivery, or (iii) dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of City and Developer at the addresses specified below, or at any other address as that Party may later designate by Notice.

To City: City of Indio
100 Civic Center Drive
Indio, California 92201
Attn: Community Development Director

To Developer:

Bravo Collection, LLC
72877 Dinah Shore Dr., Ste. 103
Rancho Mirage, California 92270
Attn: Claudio Bravo
With copies to: Nethery/Mueller/Olivier LLP
41750 Rancho Las Palmas Dr.

Suite H-1
Rancho Mirage, CA 92270
Attn: Daniel Olivier

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Any written notice, demand or communication shall be deemed received immediately if personally delivered or delivered by delivery service and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail.

8.2 Force Majeure.

In addition to specific provisions of this Agreement, performance by either Party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or Defaults are due to causes beyond the control or without the fault of the Party claiming an extension of time to perform, which may include the following (each, a “Force Majeure”): war; insurrection; acts of terrorism; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; g overnmental restrictions or priority imposed or mandated by other governmental entities; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other Party; or acts or failures to act of any public or governmental agency or entity (other than the acts or failures to act of City which shall not excuse performance by City) , or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall only be for the period of the enforced delay and shall commence to run from the time of the commencement of the caus e, if notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City and Developer.

Notwithstanding the paragraph above, Developer is not entitled pursuant to this Section

8.2 to an extension of time to perform because of past, present, or future difficulty in obtaining suitable construction or permanent financing for the development of the Site, or because of economic or market conditions.

8.3 Binding Effect.

This Agreement, and all of the terms and conditions hereof, shall be binding upon and inure to the benefit of the Parties, any subsequent owner of all or any portion of the Project o r the Site, and their respective assigns, heirs or successors in interest, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project or the Site.

8.4 Independent Entity.

The Parties a cknowledge that, in entering into and performing this Agreement, each of Developer and City is acting as an independent entity and not as an agent of the other in any respect.

8.5 Agreement Not to Benefit Third Parties.

This Agreement is made for the sole bene fit of the Parties, and no other person shall be deemed to have any privity of contract under this Agreement nor any right to rely on this

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Agreement to any extent for any purpose whatsoever, nor have any right of action of any kind on this Agreement nor be deemed to be a third-party beneficiary under this Agreement.

8.6 Covenants.

The provisions of this Agreement shall constitute mutual covenants which shall run with the land comprising the Site for the benefit thereof, and for the benefit of City, and the burdens and benefits hereof shall bind and inure to the benefit of each of the Parties hereto and all successors in interest to the Parties hereto for the term of this Agreement.

8.7 Non-liability of City Officers and Employees.

No official, officer, employee, agent or representative of City, acting in his/her official capacity, shall be personally liable to Developer, or any successor or assign, for any loss, costs, damage, claim, liability, or judgment, arising out of or connection to this Agreement, or for an y act or omission on the part of City.

8.8 Covenant Against Discrimination.

Developer and City covenant and agree, for themselves and their respective successors and assigns, that there shall be no discrimination against, or segregation of, any person or group or persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry, or any other impermissible classification, in the performance of this Agreement. Developer shall comply with the Americans with Disabilities Act of 1 990, as amended (42 U.S.C. §§ 12101, et seq.).

8.9 No Waiver.

No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought and referring expressly to this Section. No delay or omission by either Party in exercising any right or power accruing upon non -compliance or failure to perform by the other Party under any of the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof, except as expressly provided herein. No waiver by either Party of any of the covenants or conditions to be performed by the other Party shall be construed or deemed a waiver of any succeeding breach or nonperformance of the same or other covenants and conditions hereof.

8.10 Severability.

If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect, to the extent that the invalidity or unenforceability does not impair the application of this Agreement as intended by the Parties.

8.11 Cooperation in Carrying Out Agreement.

Each Party shall take such actions and execute and deliver to the other all such further instruments and documents as may be reasonably necessary to carry out this Agreement in order

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to provide and secure to the other Party the full and complete enjoyment of its rights and privileges hereunder.

8.12 Estoppel Certificate.

Either Party may, at any time, deliver written notice to any other Party requesting such Party to certify in writing that, to the best knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding ob ligation of the Parties, (ii) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, describing the nature and amount of any such defaults, and (iv) any other reasonable information requested. A Party receiving a written request hereunder shall execute and return such requested certificate within t wenty (20) days follow ing receipt of such request. The form of the requested estoppel certificate shall be reasonably approved by the receiving party. The City Manager is authorized to sign and deliver an estoppel certificate on behalf of City. City acknowledges that a certifi cate hereunder may be relied upon by transferees and Mortgagees.

8.13 Construction.

The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. As used in this Agreement, and as the context may require, the singular includes the plural and vice versa, and the masculine gender includes the feminine and vice versa.

8.14 Recordation.

This Agreement shall be recorded with the County Recorder of Riverside County at Developer’s cost, if any, within the period required by Government Code Section 65868.5.

Amendments approved by the Parties, and any cancellation or termination of this Agreement, shall be similarly recorded.

8.15 Captions and References.

The captions of the paragraphs and subparagraphs of this Agreement are solely for convenience of reference, and shall be disregarded in the construction and interpretation of this Agreement. Reference herein to a paragraph or exhibit are the paragraphs, subparagraphs and exhibits of this Agreement.

8.16 Time.

Time is of the essence in the performance of this Agreement and of each and every term and condition hereof as to which time is an element.

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8.17 Recitals & Exhibits Incorporated; Entire Agreement.

The Recitals to this Agreement and all of the exhibits and attachments to this Agreement are, by this reference, incorporated into this Agreement and made a part hereof. This Agreement, including all Exhibits attached hereto, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement, and this Agreement supersedes all previous negotiations, discussions and agreements between the Parties, and no parole evidence of any prior or other agreement shall be permitted to contradict or vary the terms hereof.

8.18 Exhibits.

Exhibits “A”- “C” to which reference is made in this Agreement are deemed incorporated herein in their entirety, whether or not such exhibits a re attached hereto in full. Said exhibits are identified as follows:

A Legal Description of the Property and the Site
B Site Map and Addresses
C. Chapter 37 of Indio Municipal Code

8.19 Counterpart Signature Pages.

For convenience the Parties may execute and acknowledge this agreement in counterparts and when the separate signature pages are attached hereto, shall constitute one and the same complete Agreement.

8.20 Authority to Execute; Representations and Warranties.

Developer warrants and represents that (i) it is duly organized and existing, (ii) it is duly authorized to execute and deliver this Agreement, (iii) by so executing this Agreement, Developer is formally bound to the provisions of this Agreement, and (iv) Developer’s entering into and performance of its obligations set forth in this Agreement do not violate any provision of any other agreement to which Developer is bound , and (v) there is no existing or threatened litigation or legal proceeding of which Developer is aware which could prevent Develo per from entering into or performing its covenants and obligations set forth in this Agreement . City warrants and represents that the person or persons executing this Agreement on its behalf have been duly authorized to execute this Agreement and bind the City to all covenants and obligations set forth in this Agreement.

8.21 City Approvals and Actions.

Whenever a reference is made in this Agreement to an action or approval to be undertaken by the City, or for any amendment, interpretation, or implementing documents required under this Agreement, the City Manager or his or her authorized designee is authorized to act on behalf of the City unless specifically provided otherwise in this Agreement or the law otherwise requires.

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8.22 Governing Law; Litigation Matters.

The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement without regard to conflicts of law principles. Any action at law or in equity brought by either Party hereto for the purpose of enforcing, construing, or interpreting the validity of this Agreement or any provision hereof shall be brought in the Superior Court of the State of California in and for the County of Riverside, or such other approp riate court in said county, and the Parties hereto waive all provisions of law providing for the filing, removal, or change of venue to any other court. Service of process on City shall be made in accordance with California law.

Service of process on Dev eloper shall be made in any manner permitted by California law and shall be effective whether served inside or outside of California. In the event of any action between the Parties hereto seeking enforcement of any of the terms of this Agreement or otherwise arising out of this Agreement, the prevailing Party in such litigation shall be awarded, in addition to such relief to which such Party is entitled, its reasonable attorney ’s fees, expert witness fees, and litigation costs and expenses.

8.23 No Brokers.

Each of the City and the Developer represents to the other party that it has not engaged the services of any finder or broker and that it is not liable for any real estate commissions, broker ’s fees, or finder’s fees which may accrue by means of this Agreement and agrees to hold harmless the other party from such commissions or fees as are alleged to be due from the party making such representations.

(Signatures on next page)

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IN WITNESS WHEREOF, Developer and City have executed this Agreement as of the Reference Date.
“DEVELOPER”

BRAVO COLLECTIOIN, LLC,
a California limited liability company
By:

Its:

“CITY”

CITY OF INDIO, a California municipal corporation

By: ___________________________

Name: ___________________________

Title: ____________________________

ATTEST:

_____________________
City Clerk

APPROVED AS TO FORM

City Attorney

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EXHIBIT “A”

LEGAL DESCRIPTION OF SITE

[to be attached]

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EXHIBIT “B”

SITE MAP & ADDRESSES

[to be attached]

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EXHIBIT “C”

CHAPTER 37 OF INDIO MUNICIPAL CODE AS OF EFFECTIVE DATE (for reference only)

[to be attached]

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