Indio City Council
January 18, 2023

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(a) City may terminate this Agreement, with or without cause, at any time by giving written notice of termination to Consultant. In the event such notice is given, Consultant shall cease immediately all work in progress.

(b) Consultant may terminate this Agreement fo r cause at any time upon thirty (30) days written notice of termination to City.

(c) If either Consultant or City fail to perform any material obligation under this Agreement, then, in addition to any other remedies, either Consultant, or City may terminate t his Agreement immediately upon written notice.

(d) Upon termination of this Agreement by either Consultant or City, all property belonging exclusively to City which is in Consultant’s possession shall be returned to City. Consultant shall furnish to City a fi nal invoice for work performed and expenses incurred by Consultant, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.

(e) Upon written notice, City may suspend all or any portion of Consultant’s performance under this Agreement at its sole option and for its convenience for a reasonable period of time not to exceed six (6) m onths. City will pay to Consultant a sum equivalent to the reasonable value of the services satisfactorily provided up to the date of suspension. City may rescind the suspension prior to or at six (6) months by providing Consultant with written notice of t he rescission, at which time Consultant would be required to resume performance in compliance with the terms and provisions of this Agreement. Consultant will be entitled to an extension of time to complete performance under th is Agreement equal to the length of the suspension unless otherwise agreed to in writing by the Parties.

SECTION 21. DEFAULT.

In the event that Consultant is in default under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Consultant for any work performed after the date of default. Instead, the City may give notice to Consultant of the default and the reasons for the default. The notice shall include the timeframe in which Consultant may cure the default.

This timeframe is presumptively thirty (30) days, but may be extended or reduced, if circumstances warrant. During the period of time that Consultant is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Consultant does not cure the default, the City may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Consultant’s default shall not be deemed to result in a waiver of the City’s legal rights or any rights arising out of any provision of this Agreement.

SECTION 22. EXCUSABLE DELAYS.

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Consultant shall not be liable for damages, including liquidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Consultant. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjust ed for any delays due to such causes.

SECTION 23. COOPERATION BY CITY.

All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Consultant in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.

SECTION 24. NOTICES.

All notices required or permitted to be given under this Agreement shall be in writing and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and return receipt requested, addressed as follows:

To City: City of Indio
Attn: City Manager
100 Civic Circle Drive
Indio, CA 92201

To Consultant: Magellan Broadband
Attn: Jory Wolf
999 18th Street Suite 3000
Denver, Co 80202
Notice shall be deemed effective on the date personally delivered or transmitted by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.

SECTION 25. AUTHORITY TO EXECUTE.

The person or persons executing this Agreement on behalf of Co nsultant represents and warrants that he/she/they has/have the authority to so execute this Agreement and to bind Consultant to the performance of its obligations hereunder.

SECTION 26. ADMINISTRATION AND IMPLEMENTATION.

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This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under the Indio Municipal Code.

SECTION 27. BINDING EFFECT.

This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.

SECTION 28. AMENDMENT.

No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Consultant and by City. The City Manager shall have the authority to approve any amendment to this Agreement if the total compensation under this Agree ment, as amended, would not exceed the City Manager’s contracting authority under the Indio Municipal Code. All other amendments shall be approved by the City Council. The Parties agree that the requirement for written modifications cannot be waived and that any attempted waiver shall be void.

SECTION 29. WAIVER.

Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provision nor a waiver of any subsequent breach or violation of any provision of this Agreement.

Acceptance by City of any work or services by Consultant shall not constitute a waiver of any of the provisions of this Agreement.

SECTION 30. LAW TO GOVERN; VENUE.

This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the Parties, venue in state trial courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.

SECTION 31. ATTORNEY’S FEES, COSTS AND EXPENSES.

In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.

SECTION 32. ENTIRE AGREEMENT.

This Agreement, including the attached Exhibits and Addendums, along with any amendments thereto, is the entire, complete, final and exclusive expression of the Parties with respect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Consultant and City prior to the execution of this

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Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.

SECTION 33. SEVERABILITY.

If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s).

SECTION 34. INCORPORATION AND CONFLICTING TERMS.
(a) The following documents are incorporated and made part of this Agreement by this reference:

1. Insurance requirements (“Addendum 1”)

2. All Exhibits and Addendums

3. All amendments

4. Consultant’s proposal, if any

5. Any laws, regulations, requirements, or restrictions, applicable to the funding source used by City to pay Consultant for any portion of work done under Agreement (“Funding Restrictions”)
(b) The documents listed above shall be re ferred to collectively as the “Agreement Documents.” The Agreement Documents are intended to be complementary, and a requirement in one Document is effective as if it appeared in all the Documents. In the event of a conflict between any of the Agreement Documents, the Documents shall be given effect in the following order: Funding Restrictions, Amendments (most recent first), this Agreement, Insurance requirements, Exhibits and Addendums, and Consultant’s proposal. Where the requirements of one Document are more stringent then another the more stringent shall govern.

SECTION 35. TIME OF ESSENCE.

Time is of the essence for each and every provision of this Agreement.

SECTION 36. FEDERAL FUNDS.

In the event the Services are funded either in whole or in part by a federal grant, Consultant shall comply with the requirements of Addendum “2” “Federal Funds.” [SIGNATURE PAGE FOLLOWS]

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Signature Page

PROFESSIONAL CONSULTANT SERVICES AGREEMENT

FOR BROADBAND ENGINEERING SERVICES

BETWEEN THE CITY OF INDIO AND MAGELLAN BROADBAND

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.

CITY OF INDIO

By: ___________________________
Bryan Montgomery
City Manager
ATTEST:

CITY CLERK

By: ___________________________
Sabdi Sanchez, CMC
City Clerk Administrator

APPROVED AS TO FORM:

CITY ATTORNEY
By: ____________________________

CONSULTANT
By:

Its:

John Honker
Magellan CEO

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Exhibit A – Scope of Services
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EXHIBIT “A”

SCOPE OF SERVICES

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Digital Infrastructure Design

C I T Y O F I N D I O , C A L I F O R N I A
Prepared for:

Ian Cozens
Director of Information
Technology
City of Indio, CA
[email protected]
760-391-4100
Prepared by:

Jory Wolf
Magellan Broadband
jwolf @magellan broadband .com
818-312-7768
magellan broadband .com

PROPOSAL

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2 Letter of Transmittal
September 26, 2022

Ian Cozens
Director of Information Technology
City of Indio, California

Dear Ian,
Magellan Advisors is pleased to submit this proposal to assist the City of Indio in finalizing the design and implementation plan for its Digital Infrastructure Project.

Based on your feedback and direction, we have prepared a proposal targeted specifically for your needs and timeline, with an initial three-month engagement that will put the City of Indio in a position to have and use full design engineering plans to solicit construction bids to build a fiber optic network to interconnect all of the member city halls.

Magellan provides professional consulting services to local governments that want to develop effective broadband and Smart City strategies that are unique to their communities and are based on real -world and demonstrable success. Our team of advisors has worked with agencies throughout California and around the US to help them develop and execute broadband strategies for their communities. We understand the challenges and opportunities local governments face in gaining a competitive edge for economic development and bridging the digital divide. Magellan has worked with several communities like the City of Indio to create actionable strategies that leverage existing infrastructure, develop strategic partnerships, create successful broadband policies and identify smart investments to enhance services and operations of government, businesses, education and healthcare institutions, including:
• County of Marin: Digital Marin
• County of Napa: Broadband Strategic Planning
• County of Sonoma: Broadband Feasibility
• County of Ventura: Broadband Master Planning
• County of Fresno: Broadband Master Plan
• City of Fremont: Broadband Master Planning
• City of South San Francisco: Broadband & Wireless Master Planning • City of Concord: Broadband Master Planning
• City of San Leandro: Broadband Master Planning
As every community is unique, our goal is to deliver individually tailored strategies and guidance to you. We strongly believe our experience makes us well suited to work extensively with your

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3 staff and departments as well as stakeholders in your communities to understand how the City of Indio can best use its unique capabilities and strengths to enhance the availability of broadband throughout its communities. Magellan Advisors prides itself on being more than just consultants; our team is comprised of practitioners of innovative broadband strategies deployed by local governments in cities across the nation.

If you have any questions or we can be of assistance in any way, please feel free to contact me with any questions or comments. You can reach me directly at 818.312.7768 or jwolf@magellan - advisors.com.

Sincerely,

Jory Wolf
VP of Digital Innovation, Magellan Advisors

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4 T A B L E O F C O N T E N T S
Letter of Transmittal ................................ ................................ ................................ ............... 2 Magellan Overview ................................ ................................ ................................ ................. 5 Related Experience and References ................................ ................................ ........................... 9 Proje ct Team ................................ ................................ ................................ .......................... 15 Scope of Work ................................ ................................ ................................ ........................ 17 Timetable ................................ ................................ ................................ .............................. 20 Pricing ................................ ................................ ................................ ................................ ... 21

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5 Magellan Overview
Magellan Broadband serves local governments nationally with offices in Texas, Colorado, Florida, California and Missouri. Our Colorado headquarters are located at 999 18th Street, Suite 3000 Denver, CO 80202. Magellan’s web address is  www.magellanbroadband.com. Magellan Advisors, LLC was founded in January of 2004 and has been in operation as a Limited Liability Company since inception. Magellan’s office number is 888-960-5299. Magellan’s Federal Employee Identification number is 65-1218484. The contact for this contract is  Vice President Jory Wolf. His email is [email protected] and his phone number is 818-312-7768.

Magellan is the leading turnkey broadband development firm for municipalities and utilities. We specialize in planning, designing and building fiber to the home networks for communities that need faster, more reliable high-speed internet. With over 18 years in business and over 400 municipal clients, Magellan is the most experienced firm for munis that want to enhance economic development, education, healthcare and the quality of life of their communities through world-class broadband.

Our staff understands the goals of local governments that recognize broadband as a policy issue. In our feasibility studies, we help educate, inform and direct municipalities to the most feasible options for solving local broad band issues. We work with internal and external stakeholders to build a profile of your community to determine the current state of broadband and identify key issues. Based on real -world solutions, we help you determine the best opportunities to close gaps and position your community for the future. We believe that every community is unique and customized broadband strategies are essential in every project we undertake. In every case, we have helped municipalities find and implement the right solutions to enhance local broadband.

We are the only firm that creates custom tailored broadband networks to achieve municipal objectives.

Our networks deliver the fastest internet services at the lowest cost, while giving municipalities a platform to deploy smart ci ty innovations that help them manage their communities. We’ve led the planning, funding, construction and management of over 50 fiber broadband networks passing over 1 million households and connecting more than 1,000 schools, hospitals, government offices and community organizations and totaling $1 billion in investments. Magellan has helped more communities successfully plan, implement and manage broadband networks than any other firm in the market.

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6 Magellan provides fiber engineering, consulting and network implementation to municipalities and utilities whose goal is to improve broadband in their communities. O ver 400 municipalities, utilities and cooperatives have used Magellan to develop their fiber and broadband networks.

Our mission is to connec t every community, one at a time, to the digital economy so that no one is left behind. Our work ensures that communities can access every opportunity the internet has to offer so they can thrive in the connected world.

Our turnkey broadband solutions allow our clients to maintain a single partner that fulfils every aspect of planning and deploying broadband networks, with seasoned experts guiding their deployments every step of the way. Our success is based on our client s’ success and our fiber to the home solutions enable our clients to serve their citizens most pressing broadband needs in the digital age.

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7

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8

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9 Related Experience and References

FIBER & WIRELESS NETWORK DESIGN: NAVAJO NATION

“This is an incredible opportunity for the Navajo Nation. For the first time, all three branches of the Navajo government have collaborated to develop a comprehensive plan that makes affordable, high speed connectivity a reality for all Navajo communities and anchor institutions.” -Norbert Nez, IT Manager, Division of Community Development

CHALLENGE:

Navajo leaders understand the financial and social consequences of having little to no broadband service across the reservation. The quality of life for Navajo families, K -12 students and elders deteriorated significantly due to Covid -19. To address this ongoing economic burden, the current Navajo leadership supported the creation of a Navajo interagency task force that focused on identifying existing broadband assets and developed strategies for increasing infrastructure deployment. The Nation engaged Magellan in early 2020 to develop a broadband plan that would provide coverage across 26,000 square miles in four states: Arizona, New Mexico, Utah, and Colorado. Magellan also conducted a Nation -wide infrastructure inventory and issued a guidance framework to help improve coverage using fixed and mobile platforms including the utilization of different licensed and unlicensed spectrum assets including 2.5Ghz, 3.5Ghz,

5.9Ghz and 700Mhz.

MAGELLAN’S SO LUTION
Navajo leadership turned to Magellan to develop a cost -effective fiber and wireless solution. Magellan’s team developed a preliminary design and cost analysis of a proposed Navajo Network that provides fiber as middle -mile backbone throughout the N ation and a wireless solution to deliver last -mile service.

Magellan maintains a dedicated team of broadband engineers and planners that developed a network design that included a wireless overlay for all 26,000 square miles of the reservation. By utilizin g a hybrid fiber and wireless model, the design included coverage to 100% of homes and anchor institutions.

OUR CLIENT’S SUCCESS
The Navajo Nation President Nez presented testimony that was drafted by Magellan to the U.S. House Energy and Commerce Comm ittee articulating the need for additional funds to support investment in broadband infrastructure. Magellan continues to support the Nation on all aspects of its broadband funding, engineering and network design needs as well as its policy goals to increa se the adoption and expansion of distance learning, telehealth, public safety, digital literacy, and other critical use cases.

CONTACT
P
earl Lee
Program Manager
P: 928.871.7613
E: [email protected]

Start and End Date:
2019 -
present

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10 FIBER DESIGN & CONSTRUCTION REFERENCE: CITY OF RANCHO

CUCAMONGA , CA

CONTACT
Fred Lyn
Utility Division Manager
P: 909.477.2740 ext. 4035
E: [email protected]

“Today this infrastructure plays a crucial role in Rancho Cucamonga, not only in economic development, but will be pivotal in the long-term sustainability and future planning of the City. Rancho Fiber has arrived.” -Fred Lyn, Utilities Division Manager

CHALLENGE
City leadership recognizes that fiber -optic infrastructure is an important part of the Rancho Cucamonga community. They understand that in today’s world, connectivity affects every aspect of the community - whether in municipal operations, public safety, education, healthcare, quality of life, entertainment and commerce. To realize leadership’s vision, the City needed a partner that could develop and manage the expansion of fiber-based broadband across the City in a measured approach that achieved the City’s financial constraints while expanding access in year -by-year deployments across the City.

MAGELLAN’S SOLUTION
In 2016, Magellan worked with the City to develop a fiber master plan and engineering assessment that laid out a multi-year plan for new aerial and underground fiber deployment throughout the City, totaling $12 million over 6 years. Since adopting the master plan in 2017, Magellan has designed and built the first three phases of the fiber t o the premises network. In this work, we have provided full engineering, fielding, utility assessments, pole and make ready planning, construction prints and bid packages. We also manage construction as an owner’s representative for the City in the fiber build, ensuring that the construction contractor meets our engineering specifications developed for the City, with tight quality control and within the budget.

OUR CLIENT’ S SUCCESS
Today, the City has connected neighborhoods and business corridors, enabling gigabit broadband services to residents and businesses across the City. Residential customers receive gigabit service for $69.99 per month, giving them nearly 5 times the bandwidth for a lower cost than is available in the market today. Businesses have competitively priced internet on City fiber that has replaced slow and unreliable DSL, and cable internet services.

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11 FIBER DESIGN & CONSTRUCTION REFERENCE: CITY OF HILLSBORO, OR

CONTACT
Greg Mont
Information Services Director
P: 503.681.5401
E: greg.mont@hillsboro-
oregon.gov

“The partnership between the City and HSD is all about what’s best for our community. We have a long history of working together to best serve our students and families, and this is another opportunity for us to do the right thing and make our schools and our community stronger.” -Mike Scott, Hillsboro Schools District Superintendent

CHALLENGE
The City of Hillsboro and Hillsboro School District envisioned a joint partnership for a community owned fiber network to support schools’ connectivity needs and enable a platform for world -class broadband. In 201 7, the City and School district signed an agreement to co-build the network. The next step was to identify a partner that understood municipal fiber projects and could manage the complex engineering process at hand, creating two networks from one.

MAGELLAN’S SOLUTION
The City of Hillsboro hired Magellan in 2017 to develop a citywide fiber backbone and fiber to the home broadband network. Magellan approached the design by working with School District staff to determine their most important needs – high bandwidth, reliability and redundancy across all schools. Through the planning proc ess, Magellan designed a highly redundant, multi -ring fiber backbone to connect 34 schools with dark fiber.

Concurrently, Magellan engineered an optimal fiber to the home architecture using the backbone network as a launchpad for broadband. Our design furnished the City with a blueprint for broadband across 44,000 homes and businesses. We provided detailed fielding, utility assessment, permitting, make-ready, prints, costing and as-builts for each phase of construction. The design delivers 1 and 10 gigabit capabilities natively in the network. To enable seamless deployment of the network, the City also selected Magellan to manage construction, given our deep experience constructing municipal fiber and our collaborative approach with the City’s internal departments.

OUR CLIENT ’S SUCCESS
Today, 34 schools are connected to the network , providing nearly unlimited bandwidth to support their current and future needs, while reducing its operating budgets by $200,000 annually. The fiber backbone and the first phase of fiber to the home construction have been completed to enable the City to launch its gigabit internet services to the first homes in Hillsboro.

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12 Broadband Feasi bi l i t y St udy – Ci t y of Wat erl oo, Iow a

CONTACT
Andy Van Fleet
Waterloo Communications
Board Chairman
P: 319-291-4323
E: [email protected]

CHALLENGE
The City of Waterloo, Iowa selected Magellan Advisors in 2019 as its partner in the development of a Broadband Study and Action Plan that will identify needs and opportunities for future broadband expansion and growth. Magellan assisted the City of Waterloo in preparing for the internet of things by integrating fiber-to-the-home broadband and smart city technologies into  the City’s Broadband Study and Action Plan, a long -term plan, which will ensure that Waterloo is prepared to take advantage of all future wired and wireless applications which may benefit the community.

MAGELLAN’S SOLUTION
Magellan Advisors engaged the City of Waterloo leadership and studied the state of broadband throughout the community, while gathering and presenting information to assist City leadership in making informed decisions as it relates to deploying broadband citywide. The Magellan team developed supporting financial models and presented multiple options to the City for its considerat ion. Our team developed an implementation strategy and action plan for Waterloo, allowing the  City to immediately begin making improvements to the community’s broadband services. This plan will enable the City of Waterloo to also support retaining and attr acting new businesses, improving residential and business broadband services all while making Waterloo a high -tech competitive community.   The project’s final report will serve as an implementation roadmap to ensure the broadband needs of Waterloo are served today, and well into the future.

OUR CLIENT’S SUCCESS
In April 2021 the City of Waterloo extended Magellan’s contract to begin Design, Engineering and Permitting activities for a 120-mile fiber-optic backbone identified in the Action Plan. This backbone will connect hundreds of City and Utility sites and will provide the necessary capacity to support a Fiber -to- the-Home deployment. Magellan Advisors engaged the City of Waterloo in 2020 to study the state of broadband throughout the community to g ather and present information to assist City leadership in making informed decisions as it relates to deploying broadband citywide. The Magellan team developed supporting financial models presented multiple options to the City. Our team developed an implementation strategy and action plan for Waterloo, allowing the City to immediately begin making improvements to the community’s broadband services. This plan will enable the City of Waterloo to also support retaining and attracting new businesses, improving residential and business broadband services all while making Waterloo a high -tech competitive community. The project’s final report has been delivered and the City is moving forward with funding.

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13 FIBER DESIGN ENGINEERING REFERNCE: CITY OF GLENDALE, CA

CONTACT
Craig Kuennen
Deputy General Manager
P: 818.548.3369
E: [email protected]

“Today this infrastructure plays a crucial role in Rancho Cucamonga, not only in economic development, but will be pivotal in the long-term sustainability and future planning of the City. Rancho Fiber has arrived.”
-Fred Lyn, Utilities Division Manager

CHALLENGE
Glendale Water & Power currently owns and operates approximately 98 miles of dark fiber network within Glendale’s city limits. The majority of connections are for municipal communication systems with limited comm ercial access. To meet increasing demand for fiber in the City, City Council authorized the development of a Fiber Optic Business Plan. This plan is currently under implementation to provide improved commercial network infrastructure and necessary business organization required to expand the City’s operation as a provider.

MAGELLAN’S SOLUTION
In 201 8, Magellan Advisors has been the City’s partner for implementation of its fiber strategy, including design for electronics and connectivity, development of the construction documents and strategy for deployment of an expanded fiber backbone to bring conne ctivity to Glendale’s electric substations and other field equipment to serve the utility. Magellan’s strategy was to leverage the fiber backbone expansion for as many purposes as possible across the City, utility and broadband use cases. Magellan laid out fiber backbone routes to reach all electric substations, creating a new ring of connectivity to improve reliability in the electric plant. The design was dimensioned to support high-capacity broadband services as part of Glendale’s strategic plan to deploy the network.

OUR CLIENT’S SUCCESS
Today, the City has connected neighborhoods and business corridors, enabling gigabit broadband services to residents and businesses across the City. Residential customers receive gigabit service for $69.99 per month, giving them nearly 5 times the bandwidt h for a lower cost than is available in the market today. Businesses have competitively priced internet on City fiber that has replaced slow and unreliable DSL and cable internet services.

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14 FIBER OPTIC NETWORK EXPANSION REFERENCE: CI TY OF PALO ALTO, CA

MAGELLAN’S SOLUTION
Magellan was selected by the City of Palo Alto to assist the City and its electric utility with development of a high -level design for an expanded backbone network to connect City facilities for the enhancement of automated meter reading (AMI), Public Works, and Public Safety functions. The project also includes a high -level design and business case assessment for a fiber -to-the-home network that leverages existing infrastructure and expands the City's existing commercial fiber offerings to residents.

OUR CLIENT’S SUCC ESS
Our team of engineers and consultants worked to assess the current residential broadband market in Palo Alto to determine appropriate rate structures and focus areas, made recommendations about policy to enhance broadband, and interviewed City departm ents to determine use cases for the backbone network, leading to the development of a resilient fiber ring that will support the City's internal functions for years to come, as well as a FTTH design to support residential broadband needs.

The designs also included an analysis of the business case for extending fiber and conduit infrastructure, a detailed bill of materials, and phased implementation plan for deployment. In the second phase of the project, our team will continue our work with Palo Alto by assisting with outreach to the community and investigating partnership options.

CONTACT

Todd Henderson

IT Manager

P:
650.329.2342

E:

[email protected]

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15 Project Team

JORY WOLF
VP of Digital Innovation: Project Executive
Jory joined Magellan after 22 years as CIO of the City of Santa Monica, CA where he launched Santa Monica City Wi-Fi, which provides free internet services to the public through a network of 32 hot zones and wireless coverage in most major commercial and transit corridors throughout the city. He created Santa Monica City Net, a 100 -gigabit broadband initiative to support an environment for local businesses to compete in the global economy with cutting edge network solutions. Jory has over 35 years of experience in Information Technology, including broadband, FTTH and Smart City initiatives. Jory and his teams have received over 50 awards for information technology projects during his career and in 2012 he received the CIO Lifeti me Achievement Award from the Los Angeles Business Journal. Since joining Magellan Broadband in July 2016, Jory has led teams that have worked on 60+ government projects in broadband master planning, feasibility studies, wireless strategic planning, 5G small cell policies, dig once policies and smart city.

WILL MORAT
Senior Broadband Consultant: Project Manager
Will has 15 years of experience leading complex projects in government, communications, and economic development. He has led public fiber optic network projects from the nascent stages all the way through launch. His focus is on leveraging public assets with private investment to realize community benefit:
closing the Digital Divide, improving public services through technology, and enhancing the quality of life and economic environment. Will brings a background in public policy, local government administration, and cross -departmental experience in project management that complements the critical role of broadband in community growth and development.

AL KAMUDA
Design Team Lead
Al Kamuda is a seasoned telecommunications and GIS professional with over 20 years’ experience in telecommunications engineering, mapping, design and outside plant construction. Prior to joining Magellan, Al was the Senior Design Manager for the Central Florida region at Spectrum (Charter Communications), where he led the planning, project management and implementation of outside plant design for v arious company growth projects including residential, commercial, cellular backhaul and metro WIFI. His extensive experience with the telecommunications industry, CAD platforms and geospatial expertise along with his strategic forward thinking provides an extremely diverse skill set that allows him the valuable insight needed to understand the client’s objectives in all aspects of telecommunications construction and design processes.

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16 COLE HENKLE
Director – Broadband Design
Cole has a decade of experience managing large broadband designs. He manages the full life cycle of engineering projects from inception to completion, managing all permitting activities and personnel in local and remote locations. He has direct experience working with major ca rriers, municipalities and regional governments on regional fiber and broadband deployments across the US, some of which include Google Fiber, Verizon and the Cities of Hillsboro,  OR, Chesapeake, VA, Portsmouth, VA, Boulder, CO, and Ann Arbor, MI. Mr.  Henkle led the City of Hillsboro design engineering project, with 100 miles of fiber backbone and 5,000 homes designed and built to date.

SHAWN MORRIS
Broadband Designer
Shawn Morris has more than seven years of experience designing, and coordinating fiber projects and has additional experience in the architecture design industry. Most recently, Shawn has contributed towards multiple municipality based FTTH and Infrastructural Network projects. Shawn excels at identifying potential problems early in projects and uses his problem -solving skills to  plan and develop processes and procedures to navigate each unique challenge. His excellent customer service is consistently recognized by our clients and  Shawn always ensures that quality deliverables are provided.  Shawn holds a Master of Architecture from Kansas State University.  Shawn is experienced with the following software: Microsoft Office,  Autocad, ArcGIS, 3 -GIS, SketchUp, Adobe InDesign, G Suite, and Lucidchart.

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17 Scope of Work
T A S K 1 : D E S I G N E N G I N E E R I N G

1.A: Conceptual Design

Magellan will create a High-Level Design (30%) that can subsequently be completed and finalized in Task 1.

As we develop the High-Level Design, we will work with the City of Indio team to determine the best running lines, infrastructure and locations where fiber should be constructed.

Magellan will have their design process begin in which fiber alignments, placements, structures, cable sizes and splice points are identified in the n etwork. Magellan will work with the City of Indio to analyze any existing fiber backbone routes and determine the best construction strategy and methods. Minor changes in the backbone routes may be preferred to avoid congestion or those planned for replacement in the next few years.

Also, Magellan will look at opportunities to optimize the backbone for future city services and broadband applications that may give the cities advantages for expanding the network in the future but come with little if any add itional cost today. The High-Level D esign will include geo-located data layers for the following:
• Review of construction standards, policies and practices • Placement of new backbone cable
• Right of way analysis
• Sites to connect on the backbone
• Laterals to each site
• Interconnection with core data centers/utility sites

The 30% High-Level Design will focus on 4 key components that will accurately inform and guide the final design engineering:

Backhaul/Redundant Connections – Connecting any City’s local, publicly -owned fiber network to other public and/or private regional middle-mile and long-haul transport circuits to procure diverse, redundant pathways to colocation and data facilities that en sure connection to the Internet. A resilient regional network will require at least two independent fiber paths to ensure that service is not interrupted due to technical issues, construction, accidental cable cuts, natural disasters/fire, or other unforeseen events.

Core Fiber Backbone - Connecting city halls to one another across the region and building a high-capacity fiber backbone that connects to the greater internet points of presence, colocation centers and central offices. The core fiber backbone will consist of high -count fiber using redundant rings and/or mesh architectures to suppo rt a highly resilient backbone. It will include all outside plant fiber assets, hut locations, facility locations and core network elements to light the network.

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18 Fiber Laterals to Key Organizations – We will connect key community anchor organizations to t he fiber backbone, providing multi-gigabit connectivity to government offices, public safety facilities, and other key facilities. It will include all outside plant fiber assets and network elements to connect facilities to the network.

As Magellan compl etes the High-Level Design, we will conduct a formal review with maps illustrating all components of the backbone build. We will present the 30% design, alignments, sites, laterals and connections to give the City of Indio staff a first look at the preliminary design, provide feedback and give Magellan a chance to make any adjustments to running lines and other outside plant aspects of the network before moving into detailed engineering.

1.B: Low Level Design (60%)

Once consensus on the high-level design has been received, Magellan will begin the onsite fielding process, in which the internal field team will conduct detailed walkouts of all routes and fiber lines. Our fielding process identifies features and attributes, constructability, hazards, and survey of existing infrastructure.

We utilize Trimble GPS units for all fielding and iPad data collection to record features and upload them in real time to our design engineers in the back office. This gives us the ability to expedite the design process in concert with our onsite field team. The fielding team will also provide make-ready analysis for the fiber overbuild. Magellan will look at the opportunities to over lash to existing cable vs new attachments for backbone fiber installation.

After all field data has been collected, Magellan will begin the detailed engineering design from the survey data and make adjustments to running lines. This is known as the Low -Level Design and is the 60% milestone. Magellan utilizes a route optimization process to determine the best paths for fiber backbone routes, avoiding any potential constructability issues encountered during the fielding process. This process allows us to optimize the final routes for you and value engineer the network to keep costs down. Our low- level design process will also create all fiber cable sizes, splicing diagrams, port assignments, terminations and final site connections for the new backbone. Furthermore, it will provide preliminary bills of materials and cost estimates for the new network.

Magellan will review the Low-Level Design (60%) with the City and will provide the first set of construction prints with detailed placement and routing, integration with existing fiber and conduit, preliminary fiber splice plans, cabinet layouts, pedestals and other low -level outside plant infrastructure documentation.

Magellan will provide a detailed review of the plant with the City of Indio, pointing out how the design has changed from the 30% Conceptual Design. In this review, Magellan will provide GIS data and plots to the City of Indio in advance of the meetings, so you have ample time to review. Accompanying this data will also be the preliminary cost estimates, bills of materials and bid package documents for construction. This 60% review will give The the City of Indio a chance to provide feedback to Magellan at a more detailed level and better understand the costs of plant construction, to determine if any changes should be made to reduce budgets, speed the deployment or adjust the fiber routes.

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19 1.C: Final Design (90%)

Once all updates are invoked Magellan will complete the 90% milestone known as the Final Design. This design process will incorporate any changes from the 60% Low Level Design into the final design. We will finalize all routing, alignments, separations, structure sizing and placement, cabinet placement, splice plans and other components of the design. This process will also identify all permits required, costs and timeframes to acquire the permits. Magellan will have a final review with the City of Indio to review all of the scope and address any questions or concerns.

The Final Design and Bid Package will provide the City of Indio with the following:
• All construction documents
• City procurement requirements
• Construction standards
• Construction plans
• Sequencing and schedules
• Bills of Materials using unit costs and pay items for the release and RFP or invitation to bid.

Magellan will provide final QA/QC on all documents and conduct a formal review of the final deliverables with the City of Indio to determine if any changes need to be made before going to bid. Magellan will develop the final bid package for construction and provide the City of Indio with all content to support a competitive construction procurement. Magellan will provide design specifications, prints, pay items, units, and final documents, incorporating in the City of Indio’s existing procurement documents to create a final construction package for release to the market. Magellan is happy to manage the pre-bid meeting, answer questions, post addenda, evaluate bidders and make recommendations to the City of Indio on the final award.

1.D: Bill of Materials

Magellan will create a final high -level design and cost estimates for the fiber network which itemizes all labor, materials and equipment costs. We will provide a comprehensive bill of materials with unit rates for construction, based on local labor costs that are commensurate with the current market. This bill of materials will supply each per unit cost for outside plant construction, splicing, termination, testing, wireless siting, construction, installation and activation.

Task 1 Deliverable: Magellan will provide geodata files, maps and accompanying files for a 30% High Level Design, 60% Low Level Design, a 90% Final Design, a Bill of Materials, and Bid Package.

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20 Timetable
 Ongoing Task
 Final Deliverable

Month 1
Month 2
Month 3
Task 1: Design Engineering ◆ ◆ 

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Exhibit B – Compensation
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EXHIBIT “B”

COMPENSATION

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21 Pricing
The total cost to the City of Indio is $237,884. and includes all work to be completed by Magellan as stated in this proposal. Magellan will bill the City of Indio in three (3) equal monthly payments of $79,294.67.

Magellan will bill on the first day of the month for the current month’s services. Unless otherwise noted below, travel and incidental expenses are not anticipated for this project as all work will be performed remotely. Invoices are payable on net 30 terms from the date of invoice. Pricing for Task 1: Design Engineering are estimated costs and may be adjusted based on the data collected and knowledge gained regarding more accurate construction footages while working on the project.

Description Cost
Task 1: Design Engineering $237,884
Total for Services $237,884
City of Indio All Phases
Task 1: Design Engineering Cost Breakdown
Engineering Phase Services Unit of
Measure
Unit
Cost Quantity Total Cost
High -Level Design LF $0.35 122,115 $42,740.25
Engineering Design LF $0.45 122,115 $54,951.75
Permitting LF $0.20 122,115 $24,423.00
Final Construction Drawings LF $0.20 122,115 $24,423.00 Staking/Pre -Construction (construction
prep) LF $0.20 122,115 $24,423.00
As-Builts (post construction) LF $0.20 122,115 $24,423.00 PE Stamps Hourly $250 90 $22,500.00
Fielding Travel Costs Not To
Exceed $20,000.00

Total $237,884.00

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ADDENDUM “1”

INSURANCE
(A) INSURANCE REQUIREMENTS. Consultant shall provide and maintain insurance, acceptable to the City, in full force and effect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Services by Consultant, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. Consultant shall provide the following scope and limits of insurance:

1. MINIMUM SCOPE OF INSURANCE. Consultant shall maintain the following types and limits of insurance.

2. MINIMUM LIMITS OF INSURANCE.

GENERAL LIABILITY INSURANCE. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.

AUTOMOBILE LIABILITY INSURANCE. Consultant shall maintain automobile liability insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.

PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.

WORKERS’ COMPENSATION INSURANCE. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000 per accident or disease). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers.

UMBRELLA OR EXCESS LIABILITY INSURANCE. [Optional depending on limits required]. As an option to meet the limits of insurance required by this Agreement, Consultant may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary

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coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
 A drop-down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
 Pay on behalf of wording as opposed to reimbursement;  Concurrency of effective dates with primary policies;  Policies shall “follow form” to the underlying primary policies; and  Insureds under primary policies shall also be insureds under the umbrella or excess policies.
(B) OTHER PROVISIONS. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. (C) OTHER REQUIREMENTS. Consultant agrees to deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City Attorney may require that Consultant furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.

1. Upon request from the City, Consultant shall furnish certificates and endorsements from each subcontractor identical to those Consultant provides.

2. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim administration, defense expenses and claims.

3. The procuring of such required policy or policies of insurance shall not be construed to limit Consultant’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.

4. Coverage provided by Consultant shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be

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endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

5. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.

6. General liability policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.

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City Council
January 18, 2023

STAFF REPORT

To: City Council
From: Bryan Montgomery, Executive Director
Prepared by: Carl S. Morgan, Dir. Of Economic Development Subject: Approval of Purchase and Sale Agreement and Escrow Instructions with Alfredo T. and Alicia P. Meza and Meza Family Living Trust for property located at the south/west corner of Smurr Street and Requa Avenue (Assessor Parcel Numbers 611-222-007 and 611-222-008) in the not to exceed amount of $305,000 plus title and escrow costs and other related expenses not to exceed $10,000, and finding of conformity with the General Plan and determining that the project qualifies for the common sense exemption pursuant to Section 15061(b)(3) as it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment and that any future development of the subject properties will be required to be in conformance with the Program Final Environmental Impact Report (PFEIR) for the Downtown Specific Plan certified by the Indio City Council on April 15, 2020

RECOMMENDATION:
1) Approve the Purchase and Sale Agreement with Alfredo T. and Alicia P. Meza and Meza F amily Living Trust for property located at the south/west corner of Smurr Street and Requa Avenue (Assessor Parcel Numbers 611-222-007 and 611-222-008), in the not to exceed amount of $305,000 plus title and escrow costs and other related expenses not to e xceed $10,000, and finding of conformity with the General Plan and determining that the project qualifies for the common sense exemption pursuant to Section 15061(b)(3) as it can be seen with certainty that there is no possibility that the activity in ques tion may have a significant effect on the environment and that any future development of the subject properties will be required to be in conformance with the Program Final Environmental Impact Report (PFEIR) for the Downtown Specific Plan certified by the Indio City Council on April 15, 2020 ; and 2) Authorize the City Manager to execute all documents necessary to complete the sale.

SUMMARY:

The subject property is comprised of two parcels (APN 611 -222-007 and 611-222-008) consisting of one vacant parcel (APN 611-222-008) of land and one single-family home (APN 611-222-008) located at the south/west corner of Smurr Street and Requa Avenue and north of a lot owned by the Indio Housing Authority. The purchase price for the parcel is $305,000, plus 3.5% broker fee (to be paid out of the total sales price by Seller) and 50% of the standard escrow closing costs and fees that are estimated to be approximately $10,000. The property will be required to be delivered empty “with no tenants” following a 60 -day escrow. Staff recommends the purchase of this property in order to facilitate the future development of the entire half block. The Indio Housing Aut hority owns two AGENDA ITEM #10.7
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BACKGROUND INFORMATION:

As a part of the city ’s strategic plan, city council allocated funds to acquire certain key properties in downtown. Working with a local broker, contact was made with several property owners to see if they had an interest in selling their property. Mr. Meza expressed an interest in selling his properties and the city obtained Fair Market Value appraisals for each property in September of this year. In addition, the city commissioned a Phase I Environmental Site Assessment from Earth Systems Pacific.

General Plan Conformity: The property falls within Downtown (DT) under the City of Indio General Plan 2040 characterized as supporting lively, thriving downtown area by accommodating multi -story, mixed-use buildings at higher intensifies. Also providing for vertical and horizontal mi xed-use development. Goal LU-9.1 of the General Plan states that a development goal within the public realm is to “Establish downtown Indio as regional destination with a mix of uses that draw visitors from the Coachella Valley. Encourage a broad mix of us es that creates an inviting, active, and dynamic Downtown including: Local- and regional- serving retail and services, cultural and institutional uses, educational uses and facilities, small local -serving office uses, residential buildings to increase housing diversity and units, and innovative public spaces and parks.” The purchase of this property would allow for the opportunity for the City to facilitate the future development of the entire half block, continuing the improvement of downtown. The use of the property is consistent with the General Plan and staff recommends that the City Council find that the use of the property is in conformance with the General Plan.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$315,000 In current year budget: Yes
Current FY General
Fund Impact:
$315,000 Budget adjustment: No
Next FY Financial
Impact:

N/A Strategic Objective: Downtown & Hwy 111
Revitalization
Source of funds: General Fund Fund-Org-Object
Reference:
1011190-551003

ALTERNATIVES:
$305,000 plus title, escrow costs and other related expenses $10,000. It is estimated the total cost to the City will not exceed $315,000.

ATTACHMENTS:

Attachment 1 Property Location Map
Attachment 2 Seller Executed PSA

APPROVAL(S):

Carl S. Morgan, Dir. Of Economic Development Approved - 21 Dec 2022 Steven Graham, City Attorney Approved - 05 Jan 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 10 Jan 2023

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Attachment 1
Property Location Map
(611-222-007 and 611-222-008)

= Subject Property

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URCHASEANDSALE
Exhibit“A
PurchasePrice
ActsAfterDateofAgreement
AGREEMENTFORPANDESCROWINSTRUCTIONSTHISAGREEMENTFORPURCHASEANDSALEANDESCROWINSTRUCTIONS(this“Agreement”)isdatedasofJanuary18,2023andisenteredintobyandbetweentheCITYOFINDIO,aCaliforniamunicipalcorporation(“Buyer”),andAlfredoT.andAliciaP.MezaforAPN611-222-008andMezaFamilyLivingTrustforAPN611-222-007(“Seller”).InconsiderationoftheamountheretoforepaidbyBuyertoSeller,andthemutualcovenantsandtermshereinaftersetforth,andotherconsideration,thesuf?ciencyofwhichisherebyacknowledged,BuyerandSellerherebyagreeasfollows:1.SALEANDPURCHASEPRICE.1.1SaleandPurchase.UndertheBuyer’sthreatoftheuseofeminentdomaintocondenmSeller’sproperty,SelleragreestoselltoBuyerandBuyeragreestopurchasefromSellertherealpropertyintheCityofIndio,CountyofRiverside,StateofCalifornia,bearingAPN611-222-007and611-222-008,whicharemoreparticularlydescribedon ”attachedhereto,includingallimprovementsthereonandallappurtenantrightsandeasements(the“Property”),forthepriceanduponallofthetermsandconditionshereinaftersetforth.Thepartiesagreethattheconditionofthepropertyissold“AS-IS”(asde?nedinSection10below).1.2 .Thepurchaseprice(“PurchasePrice”)forthePropertyshallbeTHREEHUNDREDFIVETHOUSANDANDNO/100DOLLARS,whichhasbeendeterminetobethemarketvalueofthePropertybytheBrokerofrecordappraisalobtainedbytheCity.2.TITLE.2.1General.TitletothePropertyshallbeconveyedbylimitedwarrantydeedandshallbeevidencedbyanowner’stitleinsurancepolicy,obtainedatBuyer’sexpense(“TitlePolicy”),issuedbyFirstAmericanTitleInsuranceCompany,74770Highway111,Suite101,IndianWells,California,92210,Attn:DeanaPerricone(dperricone@?rstam.com;760/469-8893)(“TitleCompany”or,initscapacityasescrowagenthereunder,the“EscrowHolder”),withliabilityinthefullamountofthePurchasePrice,insuringtitletothePropertyasvestedinBuyer,freeandclearofalldeedsoftrust,judgmentliensandliensforpropertytaxesandassessmentpastdueduringtheperiodofSeller’sownership,butsubjecttoallotherliensandencumbrancesandothermattersaffectingtitletotheProperty,itbeingunderstoodthatBuyermayterminatethisAgreementunderSection3belowpriortotheendoftheInspectionPeriod,describedthereinifothertitlemattersarenotacceptable.2.2 .DuringtheperiodfromthedateofthisAgreementthroughtheClosingDate(de?nedinSection4.3below),SellershallnotimproveorotherwisealtertheProperty,orrecordor?leforrecord(orpermittoberecordedor?ledforrecord)anydocumentorinstrumentwhichwillaffectthetitletooruseoftheProperty,withoutpriorwrittenconsentoftheBuyer.

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[email protected]
3 AND FWithin?ve(5)businessdaysafterthedatethisAgreementisfullyexecuted,SellershalldelivertoBuyercopiesofanyandallmaterialreports,documents,studiesandagreementsinSeller’spossessionorcontrolthatrelateinanywaytotheProperty.Withinten(10)businessdaysafterthedatethisAgreementisfullyexecuted,SellershallpromptlyobtainanddelivertoBuyerapreliminaryreportforthePropertyfromtheTitleCompanyandshalldeliverittoBuyerbyemailtoCarlMorgan(withhyperlinkstoalltitleexceptiondocumentsdescribedtherein).Buyershallpromptlyobtain,atitsexpense,aPhaseIEnvironmentalSiteAssessment.IfBuyerisnotreasonablysatis?edwiththepreliminarytitlereporttotheProperty,theresultsofthePhase1EnvironmentalSiteAssessment,orthematerialdocumentsdeliveredtoBuyer,thenBuyermayterminatethisAgreementbywrittennoticetoSellergivenwithinthirty(30)daysafterthetitlereportandsuchdocuments(includingthePhaseIEnvironmentalSiteAssessment)arereceivedbythedatetheyareemailedtoBuyer.Buyershallalsohaveforty-?vedays(45)daysafterthedatethisAgreementisfullyexecutedtoenterandinspect(orhaveitsconsultantsenterandinspect)theconditionofthePropertyandsurveytheProperty.Ifanymatterdiscoveredbyinspectionorrevealedbythesurvey(includinganyplottedtitleexceptionandVerifyingthatthebuildingisvacant)isnotacceptabletoBuyer,thenBuyermayterminatethisAgreementbyWrittennoticetoSellergivenpriortotheexpirationofsaid45dayperiod.Buyershalldefend,indemnifyandholdSellerharmlessfromandagainstallclaims,liabilities,damages,losses,costsandexpensesincurredorsufferedbySellerandarisingfromsuchentriesonthePropertyorinspections,byBuyeroritsagentsandcontractors(exceptBuyershallnotberesponsibleinanywayforconditionsdiscoveredbyBuyeroritsconsultantsandnotcreatedbyBuyeroritsconsultants).Itisunderstoodandagreedbytheparties,thatBuyershallcompleteitsinspectionsofthePropertyandtheabovede?nedreportsanddocumentswithinsixty(60)daysofthedatethisAgreementisfullyexecuted(the“InspectionPeriod”).4.ESCROW.4.1EscrowInstructions.ThisAgreementshallconstituteescrowinstructions.ThepartiesshallexecutesuchfurtherinstructionsasEscrowHolderreasonablyrequiresinordertoclarifythedutiesandresponsibilitiesofEscrowHolder.Intheeventofanycon?ictbetweenthetermsandconditionsofthisAgreementandsuchfurtherescrowinstructions,thetermsandconditionsofthisAgreementshallcontrol.4.2OpeningofEscrow.BuyerandSellershallopenanescrowwiththeEscrowHolderwithin?ve(5)businessdaysafterthedateofthisAgreementbydepositingacopyofthisexecutedAgreement(orcopiesofexecutedcounterpartsofthisAgreement)withEscrowHolderandrequestingthatanescrowbeopened.

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Exhibit“B”

4.3CloseofEscrow.ProvidedallofSel1er’sandBuyer’sobligationstobeperformedonorbeforeCloseofEscrowhavebeenperformedandalltheconditionstotheCloseofEscrowsetforthinthisAgreementhavebeensatis?ed,escrowshallcloseonorbeforethedatethatis?ve(5)businessdaysaftertheearlierof(i)thedateonwhichBuyernoti?esSellerinwritingthatBuyerhasapprovedthetitlereportanditsinspections;or(ii)theendofthe60dayInspectionPeriod(“ClosingDate”);provided,however,thattheforegoingshallnotprohibitBuyerandSellerfromclosingearlieriftheymutuallysodesire.AllriskoflossordamagewithrespecttothePropertyshallpassfromSellertoBuyerupontheCloseofEscrow.PossessionofthePropertyshallbedeliveredtoBuyeruponthecloseofescrow.4.4 .Onorbeforethedatethatisatleastone(1)businessdaypriortotheClosingDate,Buyershalldepositintoescrowthefollowing(properlyexecutedandacknowledged,ifapplicable):4.4.1ThePurchasePrice;4.4.2ACerti?cateofAcceptancefortheLimitedWarrantyDeed(dulyacknowledged);and4.4.3AllotherdocumentsandfundscontemplatedbythisAgreementandrequiredbyEscrowHoldertobedepositedbyBuyertocarryoutthisAgreement.4.5Seller’sDeliveries.Beforethedatethatisatleastone(1)businessdaypriortotheClosingDate,Sellershalldepositintoescrowthefollowing(properlyexecutedandacknowledged,ifapplicable):4.5.1LimitedWarrantyDeedconveyingthePropertytoBuyer(dulyexecutedandacknowledged)intheformattachedheretoas ;4.5.2ExecutedFederalandStatenon-foreignaf?davitswithrespecttoSeller;and4.5.3AnyotherdocumentscontemplatedbythisAgreementorrequiredbyEscrowHolderortheTitleCompanytobedepositedbySellertocarryoutthetransactiondescribedinthisAgreement.4.6ConditionstotheCloseofEscrow.Buyer’sobligationtoproceedwiththetransactioncontemplatedbythisAgreementissubjecttothesatisfactionofallofthefollowingconditionsprecedent,whichareforBuyer’sbene?tandmaybewaivedonlybyBuyer:(i)SellershallhaveperformedallagreementstobeperformedbySellerhereunderincludingassurancethatthebuildingisvacant;(ii)AsoftheClosingDate,thereshallhavebeennoadversechangesinthephysicalconditionof,ortitleto,theProperty;

AGENDA ITEM #10.7
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(iii)TitleCompanyshallhaveissuedorshallhavecommittedtoissuetheTitlePolicytoBuyer,fortheamountofthePurchasePrice,showingfeetitletothePropertytobevestedinBuyer,subjectonlytothetitleexceptionsinthepreliminaryreport.EscrowHolder,uponnoticebyBuyerofafailureofaconditionshallpromptlyreturntoBuyerall?mds(andallinterestaccruedthereon)anddocumentsdepositedbyBuyerinescrowandtoreturntoSelleralldocumentsdepositedbySellerinescrowandwhichareheldbyEscrowHolderonthedateofthetermination(lesstheamountofanychargesrequiredtobepaidunderSection4.9below).4.7RecordationofLimited .Uponreceiptofthe?mdsandinstrumentsdescribedinthisSection4,EscrowHoldershallcausetheLimitedWarrantyDeed(withCerti?cateofAcceptanceattached)toberecordedintheof?ceoftheCountyRecorderofRiversideCounty,California;andshallpromptlydelivertheproceedsofthisescrow(lessanyappropriatecharges)toSeller.4.8Prorations.AllassessmentsshallbeproratedbetweenBuyerandSellerasofthecloseofescrowbasedonthelatestavailableassessmentinformation.Buyerisexemptfrompropertytaxes;consequentlypropertytaxesshallnotbeprorated.Sellershallpayallpropertytaxes,proratedforthesix-monthpropertytaxperiodinwhichtheclosingoccurs,andBuyerwillcooperatewithSelleraftertheclosing,ifrequestedbySeller(butatnocosttoBuyer)toassistSellerinobtainingarefundofanypropertytaxesoverpaidbySellerthatareallocabletotheperiodaftertheclosing.4.9Costs.Buyershallpay50%ofallescrowfees,includingallrecordingfees,titleanddocumentarytransfertaxes.Sellershallpay50%oftheescrowfees,andalltitleinsurancepremium.4.10Broker’sCommissions.BuyerandSellerrepresenttooneanotherthatPoloDoriaistheBrokerofrecordandhasbeenengagedbyitinconnectionwiththetransactioncontemplatedbythisAgreement,ortoitsknowledgeisinanywayconnectedwithsuchtransaction.Commissionshallbe3.5%payablethroughescrow.Eachpartyshallindemnify,defend,protectandholdharmlesstheother,fromandagainstallclaimsofanyotheragent,broker,?nderorotherpersonorentityarisingfromorinconnectionwithitscommunicationsoragreementswithanysuchagent,broker,?nderorsimilarpersonorentityinconnectionwiththetransactiondescribedherein.4.11EscrowCancellationChm.Intheeventthatthisescrowshallfailtoclosebyreasonofthedefaultofeitherpartyhereunder,thedefaultingpartyshallbeliableforallescrowandtitlecancellationcharges.Intheeventthattheescrowshallfailtocloseforanyotherreason,eachpartyshallpayone-half(1/2)ofallescrowandtitlecancellationcharges.5.ATTORNEYS’FEES.InanyactionbetweenBuyerandSellerseekingenforcementofanyofthetermsandprovisionsofthisAgreement,theprevailingpartyinsuchactionshallbeawarded,inadditiontodamages,injunctiveorotherrelief,itsreasonablecostsandexpenses,notlimitedtotaxablecosts,reasonableattorneys’feesandreasonablefeesofexpertwitnesses.

AGENDA ITEM #10.7
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ASSIGNMENT

BINDINGEFFECT

6.NOTICES.Allnotices,requests,demandsandothercommunicationgivenorrequiredtobegivenhereundershallbeinwritingandsentbyfirstclassUnitedStatesorcerti?edmail,postageprepaid,returnreceiptrequested,orsentbyanationallyrecognizedcourierservicesuchasFederalExpressforovernightdelivery,dulyaddressedtothepartiesasfollows:ToSeller:AlfredoT.&AliciaP.Meza80833MaryLaneIndio,CA92201-5254CityofIndio100CivicCenterMallIndio,CA92201Attention:CityClerkDeliveryofanynoticeorothercommunicationhereundershallbedeemedmadeonthedateindicatedinthereturnreceiptorcourier’srecordsasthedateofdeliveryorasthedateoffirstattempteddelivery,ifsentbymailorcourierservice.AnypartymaychangeitsaddressforpurposesofthisSectionbygivingnoticetotheotherpartyandtoEscrowHolderashereinprovided.7. .NeitherthisAgreementnoranyinteresthereinmaybeassignedbyeitherpartywithoutthepriorwrittenconsentoftheotherparty.8. .ThisAgreementshallbebindinguponandshallinuretothebene?tofthepartieshereto,andtheirsuccessorsandassigns.9.ENTIREAGREEMENT.ThisAgreementcontainsalloftheagreementsofthepartiesheretowithrespecttothematterscontainedherein,andallpriororcontemporaneousagreementsorunderstandings,oralorwritten,pertainingtoanysuchmattersaremergedhereinandshallnotbeeffectiveforanypurpose.NoprovisionofthisAgreementmaybeamended,supplementedorinanywaymodi?edexceptbyanagreementinwritingsignedbythepartiesheretoortheirrespectivesuccessorsininterestandexpresslystatingthatitisanamendmentofthisAgreement.10.AS-ISCONDITIONOFTHEPROPERTY .ExceptasotherwiseexpresslyprovidedinthisAgreement,BuyerhasagreedtoacceptpossessionofthePropertyontheclosingdateonan“AS-IS,WHERE-ISANDWITHALLFAULTS”basis.Anyinformationthatmayhavebeen,ormaybe,suppliedtoBuyerconcerningtheconditionofthePropertyisforthesolepurposeofpermittingBuyertodeterminewhetherthePropertyisofsuchtypeandgeneralcharacterasacceptabletoBuyer.Sellerhasnotwarrantedanddoesnotwarranttheaccuracyand/orcompletenessofanysuchinformation.ByacceptingtheDeedatClosing,BuyershallbedeemedtohaveacknowledgedtoSellerthatBuyeristhoroughlyacquaintedandsatis?edwithallaspectsoftheProperty,andisacquiringtheProperty“AS-IS,WHERE-IS”andwithoutanycovenants,warranties,representationsoragreementsastothepast,presentoranyfuturecondition,?tnessforaparticularpurposeoranyothermatterorthingaffectingorrelatingtotheProperty,allofwhichareexpresslydisclairned,exceptanyrepresentationsorwarrantiescontainedinthisAgreement.Buyer’sacceptanceoftitletothePropertyandpossessionoftheProperty,atthe

AGENDA ITEM #10.7
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THIRDPARTIES

SEVERABILITY
Closing,shallconstituteawaiverandreleasebyBuyerofSellerofanyclaimorliabilitypertainingtotheconditionofthePropertyincluding,withoutlimitation,theexistenceofanyhazardoussubstancesand/oranyotherenvironmentalconditionin,onorabouttheProperty,exceptforanyclaimorliabilityarisingoutofanyfraudcommittedbySeller.BuyeracknowledgesthattheinspectionperiodprovidesBuyeranditsexpertsandconsultantswithampleopportunitytoinvestigatetheProperty.11.ENFORCEMENTOFAGREEMENT.ItisagreedthattherightsgrantedtoBuyerbySellerandbySellertoBuyerhereunderareofaspecialanduniquekindandcharacter,andthat,ifthereisabreachbyeitherpartyofanymaterialprovisionofthisAgreement,thenon-defaultingpartywouldnothaveanyadequateremedyatlaw.Itisexpresslyagreed,therefore,that:
(a)IfSellerfailstoperformanyofSeller’smaterialobligationsunderthisAgreement,andthesamecontinuesuntilthedatethatistheearlierof(i)theClosingDateor(ii)?ve(5)daysafterSeller’sreceiptofwrittennoticefromBuyer,Buyermay,asBuyer’ssoleremedyforSeller’sfailure,either(X)cancelthisAgreementWithinten(10)businessdaysaftertheexpirationoftherelevanttimeperiodspeci?edtheapplicablesectionofthisAgreement;or(y)bringanappropriateactionforspeci?cperformanceofthisAgreement.(b)IfBuyerfailstoperformanyofBuyer’smaterialobligationsunderthisAgreementandthesamecontinuesuntilthedatethatistheearlierof(i)theClosingDateor(ii)?ve(5)daysafterBuyer’sreceiptofwrittennoticefromSeller,Sellermay,asSeller’ssoleremedyforBuyer’sfailure,either(X)cancelthisAgreementwithinten(10)businessdaysaftertheexpirationoftherelevanttimeperiodspeci?edintheapplicablesectionofthisAgreement;or(y)bringanappropriateactionforspeci?cperformance.12. .ThisAgreementmaybeexecutedinanynumberofcounterparts,eachofwhichshallbeanoriginal,butallofwhichshallconstituteoneandthesameinstrument.13.TIMEOFTHEESSENCE.TimeisoftheessenceofthisAgreement.14. .NothingcontainedinthisAgreement,expressedorimplied,isintendedtoconferuponanyperson,otherthanthepartiesheretoandtheirsuccessorsandassigns,anyrightsorremediesunderorbyreasonofthisAgreement.15. .IfanyoneormoreoftheprovisionscontainedinthisAgreementshallforanyreasonbeheldtobeinvalid,illegalorunenforceableinanyrespectbyacourtofcompetentjurisdiction,suchinvalidity,illegalityorunenforceabilityshallnotaffectanyotherprovisionhereof,andthisAgreementshallbeconstruedasifsuchinvalid,illegalorunenforceableprovisionhadneverbeencontainedherein,unlesssuchinvalidity,illegalityorunenforceabilitymateriallyaffectstheeconomictermsofthetransactionscontemplatedbythisAgreementormateriallyimpedestheabilityofeitherpartytoperformitsobligationsunderthisAgreement.Insuchcase,eitherpartymayterminatethisAgreementandtheescrowuponwritten

AGENDA ITEM #10.7
Approval of Purchase and Sale Agreement and Escrow Instructions with Alf... Page 140 of 446 ADDITIONALDOCUMENTS;FURTHERASSURANCES
noticetotheotherpartygivennolaterthanten(10)businessdaysafterthepartygivingsuchnoticebecomesawareofsuchinvalidity,illegalityorunenforceability.Intheeventofsuchtermination,allfundsdepositedwithEscrowHolderbyBuyerandanyinterestaccruedthereonshallbereturnedtoBuyer.16. .Eachpartyheretoagreestoperformanyfurtheractsandtoexecute,acknowledgeanddeliveranyfurtherreasonabledocumentsthatmaybereasonablynecessarytocarryouttheprovisionsofthisAgreement.17.CITYMANAGERAUTHORITLTheCityManagerofBuyershallhavetheauthoritytogiveallconsentsandapprovalsandnoticeshereunderonbehalfofBuyer,andmayenterintonon—substantialamendmentsofthisAgreement,providedtheyareinwriting.18.SELLERREPRESENTATIONS.SellerherebyrepresentsthatthepersonsexecutingthisAgreementasoronbehalfofSellerhavetheright,powerandauthoritytosoexecutethisAgreementandbindSellertothetermshereof.SelleralsorepresentsandwarrantsthatexceptaswillbedisclosedtoBuyerunderthe?rstparagraphofSection3above,SellerhasdisclosedinwritingtoBuyerallmaterialfactsactuallyknownbySellerabouttheProperty.18.BUYER’SCOOPERATIONWITHIRCSection1033TAXDEFERREDORSIMILAREXCHANGE.Buyeragreesthat,Sellermayelecttoeffectatax—deferredexchangepursuanttoSection1033,andtheregulationspertainingthereto,oftheInternalRevenueCodeof1986,asamended.BuyershallcooperatewiththeSellerinconnectionwithanysuchexchangeinanyreasonablemanner,includingwithoutlimitationby:(i)executinganyandallcustomaryandcommerciallyreasonabledocuments,(ii)providingalettertotheInternalRevenueServicestatingthePropertyissubjecttobeingcondemnedbytheBuyer,and(iii)executinganyescrowinstructionsoragreementsconsentingtoSeller’sassignmentofitsrightsandobligationspursuanttoaSection1033exchange,whichmaybenecessarytocarryoutsuchanexchange;provided,however,Seller’selectiontoeffectsuchanexchangeshallnotunreasonablydelaytheClosingDate.

AGENDA ITEM #10.7
Approval of Purchase and Sale Agreement and Escrow Instructions with Alf... Page 141 of 446 SEL
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INWITNESSWHEREOF,thepartiesheretohaveexecutedthisAgreementasofthedayandyear?rstabovewritten.BUYER:A1?edoT. CITYOFINDIO AliciaP-M923 BryanH.Montgomery,CityManagerMezaFamilyLivingTrust Attest:ByA1f“’d° APPROVEDASTOFORM:ByAliciaP.Meza,Trustee COLE/HUBER,LLPATTORNEYS StevenP.Graham,CityAttorney
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AGENDA ITEM #10.7
Approval of Purchase and Sale Agreement and Escrow Instructions with Alf... Page 142 of 446 EXHIBITHA"LEGALDESCRIPTION
ThelandreferredtohereinbelowissituatedintheCityofIndio,CountyofRiverside,StateofCalifornia,andisdescribedasfollows:THEWESTERNFIFTYFEETOFLOTS1AND2INBLOCK5OFWILSONSFIRSTADDITIONTOINDIO,INTHECITYOFINDIO,COUNTYOFRIVERSIDE,STATEOFCALIFORNIA,ASPERMAPRECORDEDINBOOK10,PAGE41OFMAPS,INTHEOFFICEOFTHECOUNTYRECORDEROFSAIDCOUNTY .APN611-222-007 THEEASTERLYRECTANGULAR100FEETOFLOT1INBLOCK5OFWILSON’SFIRSTADDITIONTOINDIO,ACCORDINGTOMAPRECORDEDINBOOK10,PAGE41OFMAPS,INTHEOFFICEOFTHECOUNTYRECORDEROFSAIDCOUNTY .APN611-222-008 B-1

AGENDA ITEM #10.7
Approval of Purchase and Sale Agreement and Escrow Instructions with Alf... Page 143 of 446 EXHIBIT“B”FORMOFLIMITEDW ARRANTYDEED(Attached.)
B-1

AGENDA ITEM #10.7
Approval of Purchase and Sale Agreement and Escrow Instructions with Alf... Page 144 of 446 RecordingRequestedBy,AndWhenRecordedMailto(andmailAssessmentStatementsto:CityofIndio100CivicCenterMallIndio,CA92201Attention:CityClerkAPN:611-222-007and008 SPACEABOVETHISLINERESERVEDFORRECORDER’SUSEThisdeedisexemptfromRecordingFees(Govt.CodeSection27383).DocumentaryTransferTaxis$0.00;exempttransfertoaCaliforniapublicentity.PropertyisintheCityofIndio,CountyofRiverside,California.LIMITEDDEEDALFREDOT.MEZAandALICIAP.MEZA,(“Grantor”),inconsiderationofthesumofDollars($)andotherValuableconsideration,thereceiptofwhichisherebyacknowledged,herebyGRANTtotheCITYOFINDIO,aCaliforniamunicipalcorporation,(“Grantee”),thatcertainrealpropertyintheCityofIndio,CountyofRiverside,StateofCalifornia,describedonExhibit“A”,attachedheretoandallimprovementsthereonandrightsandeasementsappurtenantthereto(the“Property”).ANDwarrantthetitletothesame,againstanychallengeclaimingby,throughorunder,Grantor,butnototherwise.TOHA VEANDTOHOLDthePropertyuntoGrantee,andtoGrantee’sheirsandassignsforever.INWITNESSWHEREOF,Grantorhascausedthisinstrumenttobeexecutedonthedate(s)re?ectedontheattachednotaryacknowledgements.GRANTOR:

AlfredoT.Meza
AliciaP.Meza
B-212183-0039\2615l46Vl.doc

AGENDA ITEM #10.7
Approval of Purchase and Sale Agreement and Escrow Instructions with Alf... Page 145 of 446 MezaFamilyLivingTrust
By:Al?edoT.

P.Meza,Trustee
B-3

AGENDA ITEM #10.7
Approval of Purchase and Sale Agreement and Escrow Instructions with Alf... Page 146 of 446 EXHIBIT"A"TOGRANTDEEDLEGALDESCRIPTIONThelandreferredtohereinbelowissituatedintheCityofIndia,CountyofRiverside,StateofCalifornia,andisdescribedasfollows:

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PlaceNotarySealAboveSignatureofNotaryPublic
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AGENDA ITEM #10.7
Approval of Purchase and Sale Agreement and Escrow Instructions with Alf... Page 149 of 446 City of Indio
City Council
January 18, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Construction Contract with TD Sports, Inc. in an amount not-to-exceed $101,805 for the North Jackson Park Tennis Court Improvements Project (Project No. PK2323) and making a determination that the action is exempt from (Existing 15301 Section to pursuant review environmental further Facilities) of the California Environmental Quality Act

RECOMMENDATION:

Approve the project plans and specifications for the North Jackson Park Tennis Court Improvements Project (Project No. PK2323), award a construction contract to TD Sports, Inc. in an amount not -to- exceed $101,805 and authorize the City Manager to execute the contract and all other documents necessary to effectuate the purposes of the contract award and making a determination that the action is exempt from further environmental review pursuant to Section 15301 ( Existing Facilities) of the California Environmental Quality Act

SUMMARY:

In an informal bid process, the City received two (2) proposals for the North Jackson Park Tennis Court Improvements Project (Project No. PK2323). After performing a thorough analysis and due diligence, staff determined that TD Sports, Inc. was the lowest responsible bidder.

BACKGROUND INFORMATION:

The North Jackson Park Tennis Court Improvements Project (Project No. PK2323) will include:
removal of the old surface; installation of three (3) coat acrylic surface with white line markings; sanding and repa inting of tennis net posts; installation of new tennis nets; removal and disposal of existing chain link mesh and replace with new vinyl coated chain link mesh; and removal and disposal of old windscreen and installation of new windscreen.

The City received two (2) proposals as shown below:

Contractor Location Bid Amount

TD Sports, Inc. Simi Valley, CA $101,805.00
Desert Sports Resurfacing Indio, CA $181,290.00

TD Sports, Inc. submitted the low bid of $101,805. Public Works staff examined all of the proposals and after a careful review of the bid requirements and bid documents, staff determined that the lowest responsible bidder is TD Sports, Inc. The company is properly licensed and qualified to perform the AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 150 of 446 work within the project plans and specifications. Staff recommends awarding the contract to TD Sports, Inc. in an amount not-to-exceed $101,805.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$101,805 In current year budget: Yes
Current FY General
Fund Impact:
$101,805 Budget adjustment: No
Next FY Financial
Impact:
$0 Strategic Objective: Community
Beautification
Source of funds: GF Measure X to CIP Fund-Org-Object
Reference:
300-523006

Additional Financial Details:

The City will be using Measure X Sales Tax Revenue that was set aside for Park Improvements to fund this project, per the approved FY 22/23 Capital Improvement Project budget.

ATTACHMENTS:

Attachment 1
Attachment 2

APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 09 Jan 2023 Steven Graham, City Attorney Approved - 10 Jan 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 10 Jan 2023 Bryan H. Montgomery, City Manager Approved - 10 Jan 2023

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 151 of 446 ATTACHMENT1

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 152 of 446 A/£Mv'k
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AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 153 of 446 ATTACHMENT2

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 154 of 446 ScogeofServices
Comgensation
IncorgorationbyReference
AntitrustClaims
PrevailingWages
Workers‘Comgensation
CONTRACTCITYOFINDIOCONTRACTFORNORTHJACKSONPARKTENNISCOURTIMPROVEMENTSPROJECTCITYPROJECTPK2306THISCONTRACT(“Contract”)ismadeandenteredthis18thdayofJanuary,2023(“EffectiveDate”),byandbetweentheCITYOFINDIO,aCaliforniamunicipalcorporation(“City")andTDSports,Inc.,aCaliforniacorporation(“Contractor”).Contractor'sCaliforniaStateContractor’slicensenumberis660967,DIRRegistrationis1000951484.Inconsiderationofthemutualcovenantshereinaftersetforth,thepartiesheretoagreeasfollows:1.ContractDocuments.TheContractDocumentsconsistofthisContract,theNoticeInvitingBids,InstructionstoBidders,Bid(includingdocumentationaccompanyingtheBidandanypost-BiddocumentationsubmittedbeforetheNoticeofAward),theBonds,permitsfromregulatoryagencieswithjurisdiction,GeneralProvisions,SpecialProvisions,Plans,StandardPlans,StandardSpecifications,ReferenceSpecifications,Addenda,ChangeOrders,andSupplementalAgreements.TheContractDocumentsareattachedheretoandincorporatedhereinbyreference.2. .ContractorshallperformtheWorkinagoodandworkmanlikemannerfortheprojectidentifiedasNORTHJACKSONPARKTENNISCOURTIMPROVEMENTSPROJECT(“Project”),asdescribedinthisContractandintheContractDocuments.SeeExhibit‘A’.3. .Inconsiderationoftheservicesrenderedhereunder,CityshallpayContractoranottoexceedamountofONEHUNDREDONETHOUSANDEIGHTHUNDREDFIVEdollars($101,805.00)inaccordancewiththepricesassubmittedintheLumpSumProposal.SeeExhibit‘A’.4. .Allofthefollowingdocumentsareattachedheretoandincorporatedhereinbythisreference:Workers’CompensationCertificateofInsurance,AdditionalInsuredEndorsement(ComprehensiveGeneralLiability),AdditionalInsuredEndorsement(AutomobileLiability),andAdditionalInsuredEndorsement(ExcessLiability).5. .InenteringintothisContract,ContractoroffersandagreestoassigntoCityallrights,title,andinterestinandtoallcausesofactionitmayhaveunderSection4oftheClaytonAct(15U.S.C.Sec.§15)orundertheCartwrightAct(BusinessandProfessionsCodeSection16700etseq.)arisingfrompurchasesofgoods,services,ormaterialspursuanttotheContract.ThisassignmentshallbemadeandbecomeeffectiveatthetimeCitytendersfinalpaymenttoContractorwithoutfurtheracknowledgmentbytheparties.6. .CityandContractoracknowledgethattheProjectisapublicworktowhichprevailingwagesapply.7. .LaborCodeSections1860and3700providethateverycontractorwillberequiredtosecurethepaymentofcompensationtoitsemployees.InaccordancewiththeprovisionsofLaborCodeSection1861,bysigningthisContract,theContractorcertifiesasfollows:

ProjectPK2306 CityofIndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 155 of 446 Authority
_A9_
Countergans
‘‘IamawareoftheprovisionsofSection3700oftheLaborCodewhichrequireeveryemployertobeinsuredagainstliabilityforworkers’compensationortoundertakeself-insuranceinaccordancewiththeprovisionsofthatCode,andIwillcomplywithsuchprovisionsbeforecommencingtheperformanceoftheWorkofthisContract.”8.Titles.ThetitlesusedinthisContractareforconvenienceonlyandshallinnowaydefine,limitordescribethescopeorintentofthisContractoranypartofit.9. .AnypersonexecutingthisContractonbehalfofContractorwarrantsandrepresentsthatheorshehastheauthoritytoexecutethisContractonbehalfofContractorandhastheauthoritytobindContractortotheperformanceofitsobligationshereunder.10.Entirereement.ThisContract,includingtheContractDocumentsandanyotherdocumentsincorporatedhereinbyspecificreference,representstheentireandintegratedagreementbetweenCityandContractor.ThisContractsupersedesallpriororalorwrittennegotiations,representationsoragreements.ThisContractmaynotbemodifiedoramended,noranyprovisionorbreachwaived,exceptinawritingsignedbybothpartiesthatexpresslyreferstothisContract.11. .ThisContractmaybeexecutedincounterpartoriginals,duplicateoriginals,orboth,eachofwhichisdeemedtobeanoriginalforallpurposes.INWITNESSWHEREOF,thepartiesheretohaveexecutedtheContractthedayandyearfirstabovewritten. CITYOFINDIOBy BryanH.MontgomeryCityManager ATTEST: APPROVEDASTOFORMBy ByCynthiaHernandezStevenGrahamCityClerk CityAttorney Dated TDSports,Inc.("CONTRACTOR")
By:

By:

ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 156 of 446 BondNoPAYMENTBOND(LABORANDMATERIALS)KNOWALLPERSONSBYTHESEPRESENTSthat:WHEREAStheCityofIndio(“PublicAgency”),StateofCalifornia,hasawardedto(“Principal”)(NameandaddressofContractor)acontract(the“Contract”)fortheWorkdescribedasfollows:NORTHJACKSONPARKTENNISCOURTIMPROVEMENTSPROJECT(Projectname)WHEREAS,underthetermsoftheContract,thePrincipalisrequiredbeforeenteringupontheperformanceoftheWork,tofileagoodandsufficientpaymentBondwiththePublicAgencytosecuretheclaimstowhichreferenceismadeinTitle3(commencingwithSection9000)ofPart6ofDivision4oftheCivilCode.NOW,THEREFORE,we,theundersignedPrincipal,and (NameandaddressofSurety)(“Surety”)adulyadmittedsuretyinsurerunderthelawsoftheStateofCalifornia,asSurety,areheldandfirmlybounduntothePublicAgencyandallcontractors,subcontractors,laborers,materialsuppliers,andotherpersonsemployedintheperformanceoftheContractandreferredtoinTitle3(commencingwithSection9000)ofPart6ofDivision4oftheCivilCodeinthepenalsumofDollars($ ),formaterialsfurnishedorlaborthereonofanykind,orforamountsdueundertheUnemploymentInsuranceActwithrespecttothisWorkorlabor,thattheSuretywillpaythesameinanamountnotexceedingtheamounthereinabovesetforth,andalsoincasesuitisbroughtuponthisBond,willpay,inadditiontothefaceamountthereof,costsandreasonableexpensesandfees,includingreasonableattorneys’fees,incurredbyPublicAgencyinsuccessfullyenforcingthisobligation,tobeawardedandfixedbythecourt,andtobetaxedascostsandtobeincludedinthejudgmentthereinrendered.ItisherebyexpresslystipulatedandagreedthatthisBondshallinuretothebenefitofanyandallpersons,companies,andcorporationsentitledtofileclaimsunderTitle3(commencingwithSection9000)ofPart6ofDivision4oftheCivilCode,soastogivearightofactiontothemortheirassignsinanysuitbroughtuponthisBond.UponexpirationofthetimewithinwhichtheCaliforniaLaborCommissionermayserveacivilwageandpenaltyassessmentagainsttheprincipal,anyofitssubcontractors,orboththeprincipalanditssubcontractorspursuanttoLaborCodeSection1741,anduponexpirationofthetimewithinwhichajointlabormanagementcommitteemaycommenceanactionagainsttheprincipal,anyofitssubcontractors,orboththeprincipalanditssubcontractorspursuanttoLaborCodeSection1771.2,iftheconditionofthisBondbefullyperformed,thenthisobligationshallbecomenullandvoid;othen/vise,itshallbeandremaininfullforceandeffect.

ProjectPK2306 CityofIndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 157 of 446 TheSuretyherebystipulatesandagreesthatnochange,extensionoftime,alteration,oradditiontothetermsoftheContractortheSpecificationsaccompanyingthesameshallinanymanneraffectitsobligationsonthisBond,anditdoesherebywaivenoticeofanysuchchange,extension,alteration,oraddition.INWITNESSWHEREOF,two(2)identicalcounterpartsofthisinstrument,eachofwhichshallforallpurposesbedeemedanoriginalhereof,havebeendulyexecutedbyPrincipalandSurety,onthedatesetforthbelow,thenameofeachcorporatepartybeingheretoaffixedandthesepresentsdulysignedbyitsundersignedrepresentative(s)pursuanttoauthorityofitsgoverningbody.Dated“Principal” “Surety” By By:its Its
By By:its Its
(Seal) (Seal)
ThisBondmustbeexecutedinduplicateanddated,allsignaturesmustbenotarized,andevidenceoftheauthorityofanypersonsigningasattorney-in-factmustbeattached.DATEOFBONDMUSTNOTBEBEFOREDATEOFCONTRACT.SuretycompaniesexecutingBondsmustappearontheTreasuryDepartment'smostcurrentlist(Circular570asamended)andbeauthorizedtotransactbusinessintheStatewheretheprojectislocated.

ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 158 of 446 BondNo.PERFORMANCEBONDKNOWALLPERSONSBYTHESEPRESENTSthat:WHEREAStheCityoflndio(“PublicAgency"),hasawardedto (“Principa|”)(NameandaddressofContractor)acontract(the“Contract”)fortheWorkdescribedasfollows:NORTHJACKSONPARKTENNISCOURTIMPROVEMENTSPROJECT(Projectname)WHEREAS,PrincipalisrequiredunderthetermsoftheContracttofurnishaBondforthefaithfulperformanceoftheContract.NOW,THEREFORE,we,theundersignedPrincipal,and (NameandaddressofSurety)(“Surety”)adulyadmittedsuretyinsurerunderthelawsoftheStateofCalifornia,asSurety,areheldandfirmlybounduntothePublicAgencyinthepenalsumofDollars($ ,thisamountbeingnotlessthanthetotalContractPrice,inlawfulmoneyoftheUnitedStatesofAmerica,forthepaymentofwhichsumwellandtrulytobemade,webindourselves,ourheirs,successorsexecutorsandadministrators,jointlyandseverally,firmlybythesepresents.THECONDITIONOFTHISOBLIGATIONISSUCHTHAT,iftheherebyboundedPrincipal,his,heroritsheirs,executors,administrators,successorsorassigns,shallinallthingsstandtoandabideby,andwellandtrulykeepandperformthecovenants,conditionsandprovisionsintheContractandanyalterationthereofmadeasthereinprovided,onthePrincipal’spart,tobekeptandperformedatthetimeandinthemannerthereinspecified,andinallrespectsaccordingtotheirtrueintentandmeaning,andshallindemnifyandsaveharmlessthePublicAgency,itsofficers,agentsandemployees,asthereinstipulated,thenthisobligationshallbecomenullandvoid;otherwise,itshallbeandremaininfullforceandeffect.Asapartoftheobligationsecuredherebyandinadditiontothefaceamountspecifiedtherefor,thereshallbeincludedcostsandreasonableexpensesandfees,includingreasonableattorneys’fees,incurredbyPublicAgencyinsuccessfullyenforcingsuchobligation,alltobetaxedascostsandincludedinanyjudgmentrendered.SuretyherebywaivesanystatuteoflimitationsasitappliestoanactiononthisBond.TheSuretyherebystipulatesandagreesthatnochange,extensionoftime,alterationoradditiontothetermsoftheContractoroftheWorktobeperformedthereunderorthespecificationsaccompanyingthesameshallinanywiseaffectitsobligationsunderthisBond,anditdoesherebywaivenoticeofanysuchchange,extensionoftime,alterationoradditiontothetermsoftheContractortotheWorkortothespecifications.SuretyherebywaivestheprovisionsofCalifornia ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 159 of 446 CivilCodeSections2845and2849.TheCityistheprincipalbeneficiaryofthisBondandhasallrightsofapartyhereto.INWITNESSWHEREOF,two(2)identicalcounterpartsofthisinstrument,eachofwhichshallforallpurposesbedeemedanoriginalhereof,havebeendulyexecutedbyPrincipalandSurety,onthedatesetforthbelow,thenameofeachcorporatepartybeingheretoaffixedandthesepresentsdulysignedbyitsundersignedrepresentative(s)pursuanttoauthorityofitsgoverningbody.Dated “Principal” “Surety”
By By:Its Its
By By:Its Its
(Seal) (Seal)
Note:ThisBondmustbeexecutedinduplicateanddated,allsignaturesmustbenotarized,andevidenceoftheauthorityofanypersonsigningasattorney-in—factmustbeattached.DATEOFBONDMUSTNOTBEBEFOREDATEOFCONTRACT.SuretycompaniesexecutingBondsmustappearontheTreasuryDepartment’smostcurrentlist(Circular570asamended)andbeauthorizedtotransactbusinessintheStatewheretheprojectislocated.

ProjectPK2306 CityofIndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 160 of 446 WORKERS’COMPENSATIONCERTIFICATEOFINSURANCEWHEREAS,theCityofIndio(“City”)hasrequiredcertaininsurancetobeprovidedby:

NOWTHEREFORE,theundersignedinsurancecompanydoesherebycertifythatithasissuedthepolicyorpoliciesdescribedbelowtothefollowingnamedinsuredsandthatthesameareinforceatthistime:1.ThiscertificateisissuedtoCityofIndioCityHall100CivicCenterMallIndio,California92201Theinsuredsundersuchpolicyorpoliciesare:
2 Workers’CompensationPolicyorPoliciesinaformapprovedbytheInsuranceCommissionerofCaliforniacoveringalloperationsofthenamedinsuredsasfollows:PolicvumberEffectiveDateExpirationDate ItsAuthorizedRepresentative
ProjectPK2306 CityofIndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 161 of 446

ADDITIONALINSUREDENDORSEMENTCOMPREHENSIVEGENERALLIABILITY Nameandaddressofnamedinsured("NamedInsured”):

Nameandaddressofinsurancecompany(“Company”):

Generaldescriptionofagreement(s),permit(s),license(s),and/oractivity(ies)insured:Notwithstandinganyinconsistentstatementinthepolicytowhichthisendorsementisattached(the‘'Policy'')orinanyendorsementnoworhereafterattachedthereto,itisagreedasfollows:1.TheCityoflndio(“PublicAgency"),itselectedofficials,officers,attorneys,agents,employees,andvolunteersareadditionalinsureds(theabovenamedadditionalinsuredsarehereafterreferredtoasthe"Additionallnsureds”)underthePolicyinrelationtothoseactivitiesdescribedgenerallyabovewithregardtooperationsperformedbyoronbehalfoftheNamedInsured.TheAdditionallnsuredshavenoliabilityforthepaymentofanypremiumsorassessmentsunderthePolicy.2. TheinsurancecoveragesaffordedtheAdditionallnsuredsunderthePolicyshallbeprimaryinsurance,andnootherinsurancemaintainedbytheAdditionallnsuredsshallbecalledupontocontributewiththeinsurancecoveragesprovidedbythePolicy.3.EachinsurancecoverageunderthePolicyshallapplyseparatelytoeachAdditionalInsuredagainstwhomclaimismadeorsuitisbroughtexceptwithrespecttothelimitsoftheCompany'sliability.4. Nothinginthiscontractofinsuranceshallbeconstruedtoprecludecoverageofaclaimbyoneinsuredunderthepolicyagainstanotherinsuredunderthepolicy.Allsuchclaimsshallbecoveredasthird—partyclaims,i.e.,inthesamemannerasifseparatepolicieshadbeenissuedtoeachinsured.NothingcontainedinthisprovisionshalloperatetoincreaseorreplicatetheCompany’slimitsofliabilityasprovidedunderthepolicy.5.TheinsuranceaffordedbythePolicyforcontractualliabilityinsurance(subjecttotheterms,conditionsandexclusionsapplicabletosuchinsurance)includesliabilityassumedbytheNamedInsuredundertheindemnificationand/orholdharmlessprovision(s)containedinorexecutedinconjunctionwiththewrittenagreement(s)orpermit(s)designatedabove,betweentheNamedInsuredandtheAdditionallnsureds.6.Thepolicytowhichthisendorsementisattachedshallnotbesubjecttocancellation,changeincoverage,reductionoflimits(exceptastheresultofthepaymentofclaims),ornon-renewalexceptafterwrittennoticetoPublicAgency,bycertifiedmail,returnreceiptrequested,notlessthanthirty(30)Daysbeforetheeffectivedatethereof.IntheeventofCompany'sfailuretocomplywiththisnoticeprovision,thepolicyasinitiallydraftedwillcontinueinfullforceandeffectuntilcompliancewiththisnoticerequirement.7.CompanyherebywaivesallrightsofsubrogationandcontributionagainsttheAdditionallnsureds,whileactingwithinthescopeoftheirduties,fromallclaims,lossesandliabilitiesarisingoutoforincidenttotheperilsinsuredagainstinrelationtothoseactivitiesdescribedgenerallyabovewithregardtooperationsperformedbyoronbehalfoftheNamedInsuredregardlessofanyprior,concurrent,orsubsequentactiveorpassivenegligencebytheAdditionallnsureds.

ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 162 of 446

8.ItisherebyagreedthatthelawsoftheStateofCaliforniashallapplytoandgovernthevalidity,construction,interpretation,andenforcementofthiscontractofinsurance.9.ThisendorsementandallnoticesgivenhereundershallbesenttoPublicAgencyat:CityManagerCityoflndioCityHall100CivicCenterMalllndio,California9220110.Exceptasstatedaboveandnotinconflictwiththisendorsement,nothingcontainedhereinshallbeheldtowaive,alterorextendanyofthelimits,agreements,orexclusionsofthepolicytowhichthisendorsementisattached.TYPEOFCOVERAGESTOWHICHTHISPOLICYPERIODLIMITSOFENDORSEMENTATTACHESFROM/TOLIABILITY

11.Scheduleditemsorlocationsaretobeidentifiedonanattachedsheet.ThefollowinginclusionsrelatetotheabovecoveragesIncludes:ElContractualLiability 3ExplosionHazardElOwners/Landlords/TenantsuCollapseHazard:3Manufacturers/ContractorsElUndergroundPropertyDamageaProducts/CompletedOperationsuPollutionLiabilityElBroadFormPropertyDamageElLiquorLiabilitymExtendedBodilyInjury :1uBroadFormComprehensiveGeneralLiabilityEndorsement12.AEldeductibleoruself-insuredretention(checkone)of$appliestoallcoverage(s)except: (ifnone,sostate).ThedeductibleisapplicableElperclaimoraperoccurrence(checkone).13.Thisisan:1occurrenceorElclaimsmadepolicy(checkone)14.Thisendorsementiseffectiveon at12:01a.m.andformsapartofPolicyNumberI, (printname),herebydeclareunderpenaltyofperjuryunderthelawsoftheStateofCalifornia,thatIhavetheauthoritytobindtheCompanytothisendorsementandthatbymyexecutionhereof,IdosobindtheCompany.Executed,20 SignatureofAuthorizedRepresentative(Originalsignatureonly;nofacsimilesignatureTelephoneNo.:( ) orinitialedsignatureaccepted) ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 163 of 446

ADDITIONALINSUREDENDORSEMENTAUTOMOBILELIABILITY
Nameandaddressofnamedinsured(“NamedInsured”).

Nameandaddressofinsurancecompany(“Company”)
Generaldescriptionofagreement(s),permit(s),license(s),and/oractivity(ies)insured:Notwithstandinganyinconsistentstatementinthepolicytowhichthisendorsementisattached(the"Policy’’)orinanyendorsementnoworhereafterattachedthereto,itisagreedasfollows:1.TheCityoflndio("PublicAgency”),itselectedofficials,officers,attorneys,agents,employees,andvolunteersareadditionalinsureds(theabovenamedadditionalinsuredsarehereafterreferredtoasthe“Additionallnsureds”)underthePolicyinrelationtothoseactivitiesdescribedgenerallyabovewithregardtooperationsperformedbyoronbehalfoftheNamedInsured.TheAdditionallnsuredshavenoliabilityforthepaymentofanypremiumsorassessmentsunderthePolicy.2.TheinsurancecoveragesaffordedtheAdditionallnsuredsunderthePolicyshallbeprimaryinsurance,andnootherinsurancemaintainedbytheAdditionallnsuredsshallbecalledupontocontributewiththeinsurancecoveragesprovidedbythePolicy.3.EachinsurancecoverageunderthePolicyshallapplyseparatelytoeachAdditionalInsuredagainstwhomclaimismadeorsuitisbroughtexceptwithrespecttothelimitsoftheCompany’sliability.4. Nothinginthiscontractofinsuranceshallbeconstruedtoprecludecoverageofaclaimbyoneinsuredunderthepolicyagainstanotherinsuredunderthepolicy.Allsuchclaimsshallbecoveredasthird-partyclaims,i.e.,inthesamemannerasifseparatepolicieshadbeenissuedtoeachinsured.NothingcontainedinthisprovisionshalloperatetoincreaseorreplicatetheCompany'slimitsofliabilityasprovidedunderthepolicy.5.TheinsuranceaffordedbythePolicyforcontractualliabilityinsurance(subjecttotheterms,conditionsandexclusionsapplicabletosuchinsurance)includesliabilityassumedbytheNamedInsuredundertheindemnificationand/orholdharmlessprovision(s)containedorexecutedinconjunctionwiththewrittenagreement(s)orpermit(s)designatedabove,betweentheNamedInsuredandtheAdditionallnsureds.6.Thepolicytowhichthisendorsementisattachedshallnotbesubjecttocancellation,changeincoverage,reductionoflimits(exceptastheresultofthepaymentofclaims),ornon-renewalexceptafterwrittennoticetoPublicAgency,bycertifiedmail,returnreceiptrequested,notlessthanthirty(30)Daysbeforetheeffectivedatethereto.IntheeventofCompany'sfailuretocomplywiththisnoticeprovision,thepolicyasinitiallydraftedwillcontinueinfullforceandeffectuntilcompliancewiththisnoticerequirement.7.CompanyherebywaivesallrightsofsubrogationandcontributionagainsttheAdditionallnsureds,whileactingwithinthescopeoftheirduties,fromallclaims,lossesandliabilitiesarisingoutoforincidenttotheperilsinsuredagainstinrelationtothoseactivitiesdescribedgenerallyabovewithregardtooperationsperformedbyoronbehalfoftheNamedInsuredregardlessofanyprior,concurrent,orsubsequentactiveorpassivenegligencebytheAdditionallnsureds.

ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 164 of 446

8.ItisherebyagreedthatthelawsoftheStateofCaliforniashallapplytoandgovernthevalidity,construction,interpretation,andenforcementofthiscontractofinsurance.9.ThisendorsementandallnoticesgivenhereundershallbesenttoPublicAgencyat:CityManagerCityoflndioCityHall100CivicCenterMalllndio,California9220110.Exceptasstatedaboveandnotinconflictwiththisendorsement,nothingcontainedhereinshallbeheldtowaive,alterorextendanyofthelimits,agreements,orexclusionsofthepolicytowhichthisendorsementisattached.TYPEOFCOVERAGESTOWHICHTHISPOLICYPERIODLIMITSOFENDORSEMENTATTACHESFROM/TOLIABILITY

11.Scheduleditemsorlocationsaretobeidentifiedonanattachedsheet.Thefollowinginclusionsrelatetotheabovecoverages.Includes:
:1AnyAutomobiles:3TruckersCoverageDAllOwnedAutomobilesElMotorCarrierActElNon-ownedAutomobiles1:1BusRegulatoryReformAct:1HiredAutomobilesaPublicLiveryCoverage:1ScheduledAutomobiles:1GarageCoverage12.A1::deductibleorClself-insuredretention(checkone)of$ appliestoallcoverage(s)except: (ifnone,sostate).Thedeductibleisapplicable:1perclaimor:1peroccurrence(checkone)13.ThisisannoccurrenceorClclaimsmadepolicy(checkone)14.Thisendorsementiseffectiveon at12:01a.m.andformsapartofPolicyNumber (printname),herebydeclareunderpenaltyofperjuryunderthelawsoftheStateofCalifornia,thatIhavetheauthoritytobindtheCompanytothisendorsementandthatbymyexecutionhereof,IdosobindtheCompany.Executed,20 SignatureofAuthorizedRepresentative(Originalsignatureonly;nofacsimilesignatureTelephoneNo.:( orinitialedsignatureaccepted)_) ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 165 of 446

ADDITIONALINSUREDENDORSEMENTEXCESSLIABILITY
Nameandaddressofnamedinsured(“Namedlnsured”)
Nameandaddressofinsurancecompany("Company")
Generaldescriptionofagreement(s),permit(s),Iicense(s),and/oractivity(ies)insuredNotwithstandinganyinconsistentstatementinthepolicytowhichthisendorsementisattached(the“Policy”)orinanyendorsementnoworhereafterattachedthereto,itisagreedasfollows:1.TheCityoflndio(“PublicAgency”),itselectedofficials,officers,attorneys,agents,employees,andvolunteersareadditionalinsureds(theabovenamedadditionalinsuredsarehereafterreferredtoasthe“Additionalinsureds”)underthePolicyinrelationtothoseactivitiesdescribedgenerallyabovewithregardtooperationsperformedbyoronbehalfoftheNamedinsured.TheAdditionalinsuredshavenoliabilityforthepaymentofanypremiumsorassessmentsunderthePolicy.2. TheinsurancecoveragesaffordedtheAdditionalinsuredsunderthePolicyshallbeprimaryinsurance,andnootherinsurancemaintainedbytheAdditionalinsuredsshallbecalledupontocontributewiththeinsurancecoveragesprovidedbythePolicy.3. EachinsurancecoverageunderthePolicyshallapplyseparatelytoeachAdditionalinsuredagainstwhomclaimismadeorsuitisbrought,exceptwithrespecttothelimitsoftheCompany’sliability.4. Nothinginthiscontractofinsuranceshallbeconstruedtoprecludecoverageofaclaimbyoneinsuredunderthepolicyagainstanotherinsuredunderthepolicy.Allsuchclaimsshallbecoveredasthird-partyclaims,i.e.,inthesamemannerasifseparatepolicieshadbeenissuedtoeachinsured.NothingcontainedinthisprovisionshalloperatetoincreaseorreplicatetheCompany’slimitsofliabilityasprovidedunderthepolicy.5.TheinsuranceaffordedbythePolicyforcontractualliabilityinsurance(subjecttotheterms,conditionsandexclusionsapplicabletosuchinsurance)includesliabilityassumedbytheNamedinsuredundertheindemnificationand/orholdharmlessprovision(s)containedinorexecutedinconjunctionwiththewrittenagreement(s)orpermit(s)designatedabove,betweentheNamedinsuredandtheAdditionalinsureds.6.Thepolicytowhichthisendorsementisattachedshallnotbesubjecttocancellation,changeincoverage,reductionoflimits(exceptastheresultofthepaymentofclaims),ornon-renewalexceptafterwrittennoticetoPublicAgency,bycertifiedmail,returnreceiptrequested,notlessthanthirty(30)Daysbeforetheeffectivedatethereto.intheeventofCompany'sfailuretocomplywiththisnoticeprovision,thepolicyasinitiallydraftedwillcontinueinfullforceandeffectuntilcompliancewiththisnoticerequirement.7.CompanyherebywaivesallrightsofsubrogationandcontributionagainsttheAdditionalinsureds,whileactingwithinthescopeoftheirduties,fromallclaims,lossesandliabilitiesarisingoutoforincidenttotheperilsinsuredagainstinrelationtothoseactivitiesdescribedgenerallyabovewithregardto ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 166 of 446 operationsperformedbyoronbehalfoftheNamedInsuredregardlessofanyprior,concurrent,orsubsequentactiveorpassivenegligencebytheAdditionalinsureds.8. ItisherebyagreedthatthelawsoftheStateofCaliforniashallapplytoandgovernthevalidity,construction,interpretation,andenforcementofthiscontractofinsurance.9.ThisendorsementandallnoticesgivenhereundershallbesenttoPublicAgencyat:CityManagerCityoflndioCityHall100CivicCenterMalllndio,California9220110.Exceptasstatedaboveandnotinconflictwiththisendorsement,nothingcontainedhereinshallbeheldtowaive,alterorextendanyofthelimits,agreements,orexclusionsofthepolicytowhichthisendorsementisattached.TYPEOFCOVERAGESTOWHICHTHISPOLICYPERIODLIMITSOFENDORSEMENTATTACHESFROM/TOLIABILITY DFollowingFormDUmbrellaLiabilityEl
11Applicableunderlyingcoverages:INSURANCECOMPANYPOLICYNUMBERAMOUNT

12.Thefollowinginclusions,exclusions,extensionsorspecificprovisionsrelatetotheabovecoverages:13.Aadeductibleoruself-insuredretention(checkone)of$appliestoallcoverage(s)except:(ifnone,sostate).Thedeductibleisapplicableinperclaimoraperoccurrence(checkone).14.ThisisannoccurrenceorClclaimsmadepolicy(checkone).15.Thisendorsementiseffectiveon at12:01a.m.andformsapartofPolicyNumber ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 167 of 446 (printname),herebydeclareunderpenaltyofperjuryunderthelawsoftheStateofCalifornia,thatIhavetheauthoritytobindtheCompanytothisendorsementandthatbymyexecutionhereof,IdosobindtheCompany.Executed20 SignatureofAuthorizedRepresentative(Originalsignatureonly;nofacsimilesignatureTelephoneNo.:( ) orinitialedsignatureaccepted) ProjectPK2306 CityofIndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 168 of 446 CHECKLISTFOREXECUTIONOFCONTRACTTOBESUBMITTEDBYSUCCESSFULBIDDER:Two(2)executedandnotarizedcopiesoftheContractPaymentBondinamountoftheContractPerformanceBondinamountoftheContractWorkers’CompensationCertificateLiabilityinsurancecerti?cateintheamountofONEMILLIONdollars($1,000,000),namingtheCityasaco-insuredAutomobileinsurancecertificateintheamountofONEMILLIONdollars($1,000,000),namingtheCityasaco-insuredGeneralaggregateinsurancecertificateintheamountofTWOMILLIONdollars($2,000,000),namingtheCityasaco-insuredCopyofCitybusinesslicenseAdditionalinsuredendorsement— comprehensivegeneralliabilityAdditionalinsuredendorsement— automobileliabilityAdditionalinsuredendorsement— excessliability ProjectPK2306 CityoflndioPublicWorks

AGENDA ITEM #10.8
Construction Contract with TD Sports, Inc. in an amount not-to-exceed $1... Page 169 of 446 City of Indio
City Council
January 18, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Deed Restriction for the South Jackson Park Accessibility Improvements Project (Project No. PK1801) and authorize the City Manager to execute the Deed Restriction and all associated documents and file it with the County’s Recorder Office, and making a determination that the action is exempt from further environmental review pursuant to Section 15268 (Ministerial Projects) of the California Environmental Quality Act

RECOMMENDATION:

Approve a Deed Restriction for the South Jackson Park Accessibility Improvements Project (Project No. PK1801) and authorize the City Manager to execute the Deed Restriction and all associated documents and file it with the County Recorder’s Office and making a determination that the action is exempt from further environmental review pursuant to Section 15268 (Ministerial Projects) of t he California Environmental Quality Act

SUMMARY:

On July 1, 2021, the City received Land and Water Conservation Funding from the National Park Service to construct a 0.5-mile trail with exercise stations, plant approximately 50 new trees, renovate existing playgrounds and provide ADA improvements at Sout h Jackson Park and Davis Field. As a condition of receiving the grant funding, the City must record a Deed Restriction over the parcels to ensure indefinite use as a public park.

BACKGROUND INFORMATION:

On December 20, 2017, the City Council approved Res olution No. 10000, approving the Land and Water Conservation Fund Grant application for the South Jackson Park Accessibility Improvements Project. The City received notification on September 1, 2021, that the National Park Service, through the State of Ca lifornia Department of Parks and Recreation Office of Grants and Local Services (OGALS) has approved the City’s application for funding to create a park that provides a safe and secure opportunity for residents to gather, play, and exercise.

The scope of the project includes the following:

• Installing a 0.5-mile trail around the park perimeter and additional trail work at Davis Field; • Improving ADA accessibility throughout the park site; • Replacing playground equipment area that has surpassed its useful life; • Installing two new shade sails over the park’s two playgrounds; and • Installing five exercise stations and planting approximately 50 trees around the park perimeter.

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 170 of 446

The South Jackson Park and Davis Field are located within Assessor’s Parcel Numbers 612-020-003 and 612-020-010. As a condition of receiving the grant funds, the City must file a Deed Restriction to restrict the property's title, safeguarding the property for the intent consistent with the Grant Scope for the period running from September 1, 2021 through perpetuity.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$0 In current year budget: N/A
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:

The State of California Department of Parks and Recreations Granted the City of Indio a sum not-to- exceed $652,500.00 for the South Jackson Park Accessibility Improvements (Project No. PK1801).

There will be no costs associated with approving the Deed Restriction. The Deed Restriction is required to be recorded on the title to the property prior to any approval of payments by OGALS. If not approved, the funds subject to the Grant will not be received.

ATTACHMENTS:

Attachment 1
Attachment 2

APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 09 Jan 2023 Steven Graham, City Attorney Approved - 10 Jan 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 10 Jan 2023 Bryan H. Montgomery, City Manager Approved - 10 Jan 2023

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 171 of 446 ATTACHMENT 1

SITE PLAN

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P...Page 172 of 446 6 6 5
43 3
17 2
17 17
2 2
2 2
3 3
3 2
5 5
3 7
7 8
4 4
1 1
1 1
1 9
9 9
10 10
10 1010
11 11
2 12
13 13
13 13
13 SOUTH JACKSON PARK

DAVIS FIELD

MARILYN STREET

DATE AVENUE
1 1
14 15
16 1 REPLACE DRINKING FOUNTAIN
2 CONSTRUCT NEW WALKWAY
3 RECONSTRUCT EXISTING WALKWAY
4 RECONSTRUCT EXISTING CURB RAMP
5 RECONSTRUCT EXISTING ADA STALLS
6 CRACK FILL, SLURRY, AND RE-STRIPE LOT
7 CONSTRUCT ADA RAMP

IMPROVEMENTS EXHIBIT
Consulting
NAI
8 REMOVE WALL AT DOOR
9 REPLACE STADIUM SEATING
10 CONSTRUCT WORK OUT AREA
11 REMOVE FENCE AND CONSTRUCT FENCE IN NEW
AREA
12 CONSTRUCT BOLLARD ALONG NEW WALKWAY (27
EACH)
13 PLANT TREE (52 EACH)
14 REPLENISH SURFACING, REPLACE PLAY

STRUCTURES, AND INSTALL SHADE ON SHADE

STRUCTURE
15 INSTALL SHADE ON PLAY STRUCTURE
16 REPLACE PLAY SURFACING
17 CONSTRUCT WALKING TRAIL
65

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P...Page 173 of 446 ATTACHMENT 2

DEED RESTRICTION

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 174 of 446 1 RECORDING REQUESTED BY:

California Department of Parks and Recreation
Office of Grants and Local Services
WHEN RECORDED MAIL TO:

Office of Grants and Local Services
PO Box 942896
Sacramento, CA 94296-0001
Attn: Sam Lumley
SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE

DEED RESTRICTION
I. WHEREAS, _____________________________________________________________ _____________________________________ (hereinafter referred to as “Owner(s)” is/are recorded owner(s) of the real property described in Exhibit A, attached and incorporated herein by reference (hereinafter referred to as the “Property”); and
II. WHEREAS, the California Department of Parks and Recreation (hereinafter referred to as “DPR”) is a public agency created and existing under the authority of section 5001 of the California Public Resources Code (hereinafter referred to as the “PRC”); and III. WHEREAS, Owner(s) (or Grantee) applied to DPR for grant funds available pursuant to the Land and Water Conservation Fund, Competitive Program for Construct a new approximately 0.5 mile trail with exercise stations and plant approximately 50 new trees, renovate existing playgrounds and provide ADA improvements at South Jackson Park in the City of Indio. on the Property; and IV. WHEREAS, on _July 1, 2021 , DPR’s Office of Grants and Local Services and the National Park Service approved Grant 06-01830 , (hereinafter referred to as “Grant”) for Construct a new approximately 0.5 mile trail with exercise stations and plant approximately 50 new trees, renovate existing playgrounds and provide ADA improvements at South Jackson Park in the City of Indio. on the Property, subject to, among other conditions, recordation of this Deed Restriction on the Property; and

THE CITY OF INDIO, CALIFORNIA, A CALIFORNIA MUNICIPAL

CORPORATION

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 175 of 446 2 V. WHEREAS, but for the imposition of the Deed Restriction condition of the Grant, the Grant would not be consistent with the public purposes of the Land and Water Conservation Fund, Competitive Program and the funds that are the subject of the Grant could therefore not have been granted; and
VI. WHEREAS, Owner(s) has/ve elected to comply with the Deed Restriction of the Grant, so as to enable Owner(s), to receive the Grant funds and perform the work described in the Grant; NOW, THEREFORE, in consideration of the issuance of the Grant funds by DPR, the undersigned Owner(s) for themselves and for their heirs, assigns, and successors-in-interest, hereby irrevocably covenant(s) with DPR that the condition of the grant (set forth at paragraph(s) 1 through 5 and in Exhibit B hereto) shall at all times on and after the date on which this Deed Restriction is recorded constitute for all purposes covenants, conditions and restrictions on the use and enjoyment of the Property that are hereby attached to the deed to the Property as fully effective components thereof.

1. DURATION. (a) This Deed Restriction shall remain in full force and effect and shall bind Owner(s) and all their assigns or successors-in-interest for the period running from September 1, 2021 through perpetuity.

2. TAXES AND ASSESMENTS. It is intended that this Deed Restriction is irrevocable and shall constitute an enforceable restriction within the meaning of a) Article XIII, section 8, of the California Constitution; and b) section 402.1 of the California Revenue and Taxation Code or successor statue. Furthermore, this Deed Restriction shall be deemed to constitute a servitude upon and burden to the Property within the meaning of section 3712(d) of the California Revenue and Taxation Code, or successor statue, which survives a sale of tax-deeded property.

3. RIGHT OF ENTRY. DPR or its agent or employees may enter onto the Property at times reasonably acceptable to Owner(s) to ascertain whether the use restrictions set forth above are being observed.

4. REMEDIES. Any act, conveyance, contract, or authorization by Owner(s) whether written or oral which uses or would cause to be used or would permit use of the Property contrary to the

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 176 of 446 3 terms of this Deed Restriction will be deemed a violation and a breach hereof. DPR may pursue any and all available legal and/or equitable remedies to enforce the terms and conditions of this Deed Restriction.

In the event of a breach, any forbearance on the part of DPR to enforce the terms and provisions hereof shall not be deemed a waiver of enforcement rights regarding any subsequent breach.

5. SEVERABILITY. If any provision of these restrictions is held to be invalid, or for any reason becomes unenforceable, no other provision shall be affected or impaired.

Dated: ______________________, 20 ____
Business Name (if property is owned by a business): __________________________________________ Owner(s) Name(s): ____________________________________________________________________ _____________________________________________________________________________________ Signed: ________________________________ Signed: ________________________________ ________________________________ ________________________________

PRINT/TYPE NAME & TITLE OF ABOVE PRINT/TYPE NAME & TITLE OF ABOVE (GRANTEE’S AUTHORIZED REPRESENTATIVE) (ADDITIONAL SIGNATURE, AS REQUIRED) **NOTARY ACKNOWLEDGEMENT ON THE NEXT PAGE**
City of Indio
Timothy T. Wassil, PE, Public Works Director

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 177 of 446 4 State of California
County of _______________
On __________________ before me, __________________________, a Notary Public, personally appeared _____________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________ (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

AGENDA ITEM #10.9
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H:\2022\22-0101\Drawings\Mapping\Legals & Plats\South Jackson Park\Deed Restriction Legal\22-0101 EXHIBIT A - Legal.docx

Albert A. Webb Associates

EXHIBIT A
“PROPERTY”

LEGAL DESCRIPTION

PARCEL 2 OF PARCEL MAP NO. 19183 AS SHOWN BY MAP ON FILE IN BOOK 114 OF PARCEL MAPS, AT PAGES 46 THROUGH 48, INCLUSIVE THEREOF, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, LYING WITHIN SECTION 2 5, TOWNSHIP 5 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN;

TOGETHER WITH THAT PORTION OF THE SOUTH HALF OF LOT 4 OF COACHELLA LAND & WATER CO'S SUBDIVISION OF SECTION 25, TOWNSHIP 5 SOUTH, RANGE 7 EAST, IN

THE CITY OF INDIO, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 4, PAGE 53, OF MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 4 AS SHOWN BY RECORD OF SURVEY RECORDED IN BOOK12, PAGE 62 OF RECORD OF SURVEYS, RIVERSIDE COUNTY RECORDS;

THENCE NORTH 0° 38' EAST, ALONG THE WESTERLY LINE OF SAID LOT, 213.66 FEET;

THENCE NORTH 89° 55' 15" EAST 411.00 FEET;

THENCE NORTH 0° 38' EAST 110.00 FEET TO THE SOUTHERLY LINE OF THAT

CERTAIN PARCEL CONVEYED TO THE INDIO SCHOOL DISTRICT BY DEED RECORDED OCTOBER 1, 1952 IN BOOK 1404, PAGE 411, OF OFFICIAL RECORDS;

THENCE NORTH 89° 55' 15" EAST, ALONG THE SOUTHE RLY LINE OF SAID PARCEL SO CONVEYED TO THE INDIO SCHOOL DISTRICT, 281.54 FEET TO THE SOUTHEAST CORNER

OF THAT CERTAIN PARCEL CONVEYED TO THE INDIO SCHOOL DISTRICT OF RIVERSIDE COUNTY BY DEED RECORDED NOVEMBER 19, 1953 IN BOOK 1527, PAGE 551, OF OFFICIAL RECORDS;

THENCE NORTH 0° 38' EAST, ALONG THE EASTERLY LINE OF SAID PARCEL

CONVEYED TO THE INDIO SCHOOL DISTRICT OF RIVERSIDE COUNTY BY DEED RECORDED NOVEMBER 19, 1953 IN BOOK 1527, PAGE 551, OF OFFICIAL RECORDS, 324.61 FEET, MORE OR LESS, TO THE NORTHERLY LI NE OF THE SOUTH HALF OF SAID LOT 4 AS SHOWN BY SAID RECORD OF SURVEY;

THENCE NORTH 89° 50' 30" EAST, ALONG THE NORTHERLY LINE OF THE SOUTH HALF OF SAID LOT, 590.35 FEET TO THE EASTERLY LINE OF SAID LOT 4;

THENCE SOUTH 0° 01' EAST, ALONG THE EASTERLY LINE OF SAID LOT, 650.84 FEET TO THE SOUTHEAST CORNER THEREOF;

THENCE WEST, ALONG THE SOUTHERLY LINE OF SAID LOT, 1290.19 FEET TO THE POINT OF BEGINNING.

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 179 of 446

H:\2022\22-0101\Drawings\Mapping\Legals & Plats\South Jackson Park\Deed Restriction Legal\22-0101 EXHIBIT A - Legal.docx

Albert A. Webb Associates
EXCEPTING THEREFROM THE WESTERLY 15 FEET CONVEYED TO THE COUNTY OF RIVERSIDE, BY DEED RECORDED MAY 19, 1948 AS INSTRUMENT NO. 2672, IN BOOK 913, PAGE 126, OF OFFICIAL RECORDS

PREPARED UNDER MY SUPERVISION

________________________ ________
Jason Ardery, L.S. 9329 Date

Prepared By: JKA
Checked By: ___

10/25/2022
MJ

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 180 of 446 DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5 3/4/2022
Exhibit "B" Page 12 of 21
AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 181 of 446 1 State of California — The Resources Agency

DEPARTMENT OF PARKS AND RECREATION
Land and Water Conservation Fund
Grant Contract Provisions

Part I - Definitions
A. The term “NPS” as used herein means the National Park Service, United States Department of the Interior.

B. The term “Director” as used herein means the Director of the National Park Service, or any representative lawfully delegated the authority to act for such Director.

C. The term “Secretary” as used herein means the Secretary of the Interior, or any representative lawfully delegated the authority to act for such Secretary.

D. The term “State” as used herein means the State, Territory, or District of Columbia that is a party to the project agreement, and, where applicable, the political subdivision or public agency to which funds are to be subawarded pursuant to this agreement.

Wherever a term, condition, obligation, or requirement refers to the State, such term, condition, obligation, or requirement shall also apply to the recipient political subdivision or public agency, except where it is clear from the nature of the term, condition, obligation, or requirement that it is to apply solely to the State. For purposes of these provisions, the terms “State,” “grantee,” and “recipient” are deemed synonymous.

E. The term “Land and Water Conservation Fund” or “LWCF” as used herein means the Financial Assistance to States section of the LWCF Act (Public Law 88-578, 78 Stat 897, codified at 54 U.S.C. § 2003), which is administered by the NPS.

F. The term “Manual” as used herein means the Land and Water Conservation Fund State Assistance Program Manual, Volume 71 (March 11, 2021).

G. The term “project” as used herein means a Land and Water Conservation Fund grant which is subject to the grant agreement and/or its subsequent amendments.

Part II - Continuing Assurances
The parties to the grant agreement specifically recognize that accepting LWCF assistance for the project creates an obligation to maintain the property described in the agreement and supporting application documentation consistent with the LWCF Act and the following requirements.

Further, it is the acknowledged intent of the parties hereto that recipients of LWCF assistance will use monies granted hereunder for the purposes of this program, and that assistance granted from the LWCF will result in a net increase, commensurate at least with the Federal cost-share, in a participant's outdoor recreation.

It is intended by both parties hereto that the LWCF assistance will be added to, rather than replace or be substituted for, State and/or local outdoor recreation funds.

A. The State agrees, as recipient of the LWCF assistance, that it will meet the LWCF General Provisions, and the terms and provisions as contained or referenced in, or attached to, the NPS grant agreement and that it will further impose these terms and provisions upon any political subdivision or public agency to which funds are subawarded pursuant to the grant agreement. The State also agrees that it shall be DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 182 of 446 2 responsible for compliance with the terms and provisions of the agreement by such a political subdivision or public agency and that failure by such political subdivision or public agency to so comply shall be deemed a failure by the State to comply.

B. The State agrees that the property described in the grant agreement and depicted on the signed and dated project boundary map made part of that agreement is being acquired or developed with LWCF assistance, or is integral to such acquisition or development, and that, without the approval of the Secretary, it shall not be converted to other than public outdoor recreation use but shall be maintained in public outdoor recreation in perpetuity or for the term of the lease in the case of property leased from a federal agency. The Secretary shall approve such conversion only if it is found to be in accord with the then existing statewide comprehensive outdoor recreation plan and only upon such conditions deemed necessary to assure the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location (54 U.S.C. 200305(f)(3)). The LWCF post-completion compliance regulations at 36 C.F.R. Part 59provide further requirements. The replacement land then becomes subject to LWCF protection. The approval of a conversion shall be at the sole discretion of the Secretary, or her/his designee.

Prior to the completion of this project, the State and the Director may mutually agree to alter the area described in the grant agreement and depicted in the signed and dated project boundary map to provide the most satisfactory public outdoor recreation unit, except that acquired parcels are afforded LWCF protection as Fund reimbursement is provided.

In the event the NPS provides LWCF assistance for the acquisition and/or development of property with full knowledge that the project is subject to reversionary rights and outstanding interests, conversion of said property to other than public outdoor recreation use as a result of such right or interest being exercised will occur. In receipt of this approval, the State agrees to notify the NPS of the potential conversion as soon as possible and to seek approval of replacement property in accord with the conditions set forth in these provisions and the program regulations. The provisions of this paragraph are also applicable to: leased properties developed with LWCF assistance where such lease is terminated prior to its full term due to the existence of provisions in such lease known and agreed to by the NPS; and properties subject to other outstanding rights and interests that may result in a conversion when known and agreed to by the NPS.

C. The State agrees that the benefit to be derived by the United States from the full compliance by the State with the terms of this agreement is the preservation, protection, and the net increase in the quality and quantity of public outdoor recreation facilities and resources which are available to the people of the State and of the United States, and such benefit exceeds to an immeasurable and unascertainable extent the amount of money furnished by the United States by way of assistance under the terms of this agreement. The State agrees that payment by the State to the United States of an amount equal to the amount of assistance extended under this agreement by the United States would be inadequate compensation to the United States for any breach by the State of this agreement.

The State further agrees, therefore, that the appropriate remedy in the event of a breach by the State of this agreement shall be the specific performance of this agreement or DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 183 of 446 3 the submission and approval of a conversion request as described in Section II.B above.

D. The State agrees to comply with the policies and procedures set forth in the Manual.

Provisions of said Manual are incorporated into and made a part of the project grant agreement.

E. The State agrees that the property and facilities described in the grant agreement shall be operated and maintained as prescribed by Manual requirements and published post-completion compliance regulations (36 C.F.R. Part 59).

F. The State agrees that a notice of the grant agreement shall be recorded in the public property records (e.g., registry of deeds or similar) of the jurisdiction in which the property is located, to the effect that the property described and shown in the scope of the grant agreement and the signed and dated project boundary map made part of the agreement, has been acquired or developed with LWCF assistance and that it cannot be converted to other than public outdoor recreation use without the written approval of the Secretary as described in Part II.B. above.

G. Nondiscrimination

1. By signing the LWCF agreement, the State certifies that it will comply with all Federal laws relating to nondiscrimination as outlined in Section V of the Department of the Interior Standard Award Terms and Conditions.

2. The State shall not discriminate against any person on the basis of residence, except to the extent that reasonable differences in admission or other fees may be maintained on the basis of residence as set forth in 54 U.S.C. § 200305(i) and the Manual.

Part III - Project Assurances
A. Project Application

1. The Application for Federal Assistance bearing the same project number as the Grant Agreement and associated documents is by this reference made a part of the agreement.

2. The State possesses legal authority to apply for the grant, and to finance and construct the proposed facilities. A resolution, motion or similar action has been duly adopted or passed authorizing the filing of the application, including all understandings and assurances contained herein, and directing and authorizing the person identified as the official representative of the State to act in connection with the application and to provide such additional information as may be required.

3. The State has the capability to finance the non-Federal share of the costs for the project. Sufficient funds will be available to assure effective operation and maintenance of the facilities acquired or developed by the project.

B. Project Execution

1. The project period shall begin with the date of approval of the project agreement or the effective date of a waiver of retroactivity and shall terminate at the end of the stated or amended project period unless the project is completed or terminated sooner in which event the project shall end on the date of completion or termination.

DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 184 of 446 4 2. The State shall transfer to the project sponsor identified in the Application for Federal Assistance all funds granted hereunder except those reimbursed to the State to cover eligible expenses derived from a current approved negotiated indirect cost rate agreement.

3. The State will cause work on the project to start within a reasonable time after receipt of notification that funds have been approved and assure that the project will be implemented to completion with reasonable diligence.

4. The State shall secure completion of the work in accordance with approved construction plans and specifications, and shall secure compliance with all applicable Federal, State, and local laws and regulations.

5. The State will provide for and maintain competent and adequate architectural/ engineering supervision and inspection at the construction site to ensure that the completed work conforms with the approved plans and specifications; that it will furnish progress reports and such other information as the NPS may require.

6. In the event the project covered by the project agreement cannot be completed in accordance with the plans and specifications for the project; the State shall bring the project to a point of recreational usefulness agreed upon by the State and the Director or her/his designee in accord with Section “Project Termination” of this agreement.

7. As referenced in the DOI Standard Terms and Conditions, the State will ensure the project’s compliance with applicable federal laws and their implementing regulations, including: the Architectural Barriers Act of 1968 (P.L. 90-480) and DOI’s Section 504 Regulations (43 C.F.R. Part 17); the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646), and applicable regulations; and the Flood Disaster Protection Act of 1973 (P.L. 93-234).

8. The State will comply with the provisions of: Executive Order 11988, relating to evaluation of flood hazards; Executive Order 11288, relating to the prevention, control, and abatement or water pollution, and Executive Order 11990 relating to the protection of wetlands.

9. The State will assist the NPS in its compliance with Section 106 of the National Historic Preservation Act of 1966 (54 U.S.C. § 306108) and the Advisory Council on Historic Preservation regulations 36 C.F.R. Part 800) by adhering to procedural requirements while considering the effect of this grant award on historic properties. The Act requires federal agencies to take into account the effects of their undertaking (grant award) on historic properties by following the process outlined in regulations. That process includes (1) initiating the process through consultation with the State Historic Preservation Officer and other on the undertaking, as necessary, by (2) identifying historic properties listed on or eligible for inclusion on the National Register of Historic Places that are subject to effects by the undertaking, as necessary, by (3) assessing the effects of the undertaking upon such properties, if present, and by (4) resolving adverse effects through consultation and documentation according to 36 C.F.R. § 800.11. If an unanticipated discovery is made during implementation of the undertaking the State in coordination with NPS shall consult per provisions 36 C.F.R § 800.13.

10. The State will assist the NPS in its compliance with the National Environmental Policy Act of 1969, as amended (42 U.S.C. §4321 et seq.) and the CEQ regulations (40 DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 185 of 446 5 C.F.R. § 1500-1508), by adhering to procedural requirements while considering the consequences of this project on the human environment. This Act requires Federal agencies to take into account the reasonably foreseeable environmental consequences of all grant-supported activities. Grantees and subrecipients are required to provide the NPS with a description of any foreseeable impacts to the environment from grant- supported activities or demonstrate that no impacts will occur through documentation provided to the NPS. The applicant must submit an Application & Revision Form in order to asst the NPS in determining the appropriate NEPA pathway when grant- assisted development and other ground disturbing activities are expected. If a Categorical Exclusion (CE) is the appropriate NEPA pathway, the NPS will confirm which CE, according to NPS Director’s Order 12, applies.

D. Construction Contracted for by the State Shall Meet the Following Requirements:

1. Contracts for construction shall comply with the provisions of 43 CFR Part 12 (Administrative and Audit Requirements and Cost Principles for Assistance Programs, Department of the Interior).

2. No grant or contract may be awarded by any grantee, subgrantee or contractor of any grantee or subgrantee to any party which has been debarred or suspended under Executive Order 12549. By signing the LWCF agreement, the State certifies that it will comply with debarment and suspension provisions appearing at Part III-J herein.

E. Retention and Custodial Requirements for Records

1. Financial records, supporting documents, statistical records, and all other records pertinent to this grant shall be retained in accordance with 43 CFR Part 12 for a period of three years; except the records shall be retained beyond the three-year period if audit findings have not been resolved.

2. The retention period starts from the date of the final expenditure report for the project.

3. State and local governments are authorized to substitute copies in lieu of original records.

4. The Secretary of the Interior and the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the State and local governments and their subgrantees which are pertinent to a specific project for the purpose of making audit, examination, excerpts and transcripts.

F. Project Termination

1. The Director may temporarily suspend Federal assistance under the project pending corrective action by the State or pending a decision to terminate the grant by the NPS.

2. The State may unilaterally terminate the project at any time prior to the first payment on the project. After the initial payment, the project may be terminated, modified, or amended by the State only by mutual agreement with the NPS.

3. The Director may terminate the project in whole, or in part, at any time before the date of completion, whenever it is determined that the grantee has failed to comply with the conditions of the grant. The Director will promptly notify the State in writing of the determination and the reasons for the termination, together with the effective date.

DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 186 of 446 6 Payments made to States or recoveries by the NPS under projects terminated for cause shall be in accord with the legal rights and liabilities of the parties.

4. The Director or State may terminate grants in whole, or in part at any time before the date of completion, when both parties agree that the continuation of the project would not produce beneficial results commensurate with the further expenditure of funds. The two parties shall agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated. The grantee shall not incur new obligations for the terminated portion after the effective date and shall cancel as many outstanding obligations as possible. The NPS may allow full credit to the State for the Federal share of the noncancelable obligations, properly incurred by the grantee prior to termination.

5. Termination either for cause or for convenience requires that the project in question be brought to a state of recreational usefulness agreed upon by the State and the Director or that all funds provided by the NPS be returned.

G. Lobbying with Appropriated Funds
The State must certify, for the award of grants exceeding $100,000 in Federal assistance, that no Federally appropriated funds have been paid or will be paid, by or on behalf of the State, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding, extension, continuation, renewal, amendment, or modification of this grant. In compliance with Section 1352, title 31, U.S. Code, the State certifies, as follows:

The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, and officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form- LLL, "Disclosure Form to Report Lobbying,” in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify accordingly.

This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, title DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 187 of 446 7 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

H. Provision of a Drug-Free Workplace
In compliance with the Drug-Free Workplace Act of 1988 (43 CFR Part 12, Subpart D), the State certifies, as follows:

The grantee certifies that it will or continue to provide a drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's
workplace and specifying the actions that will be taken against employees for violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform employees about:
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the performance of a grant be given a copy of the statement required by paragraph (a); (d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will:
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction; (e) Notifying the agency in writing, within ten calendar days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices.

Notice shall include the identification number(s) of each affected grant; (f) Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted; (1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;
(g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e) and (f).

DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 188 of 446 8 The State must include with its application for assistance a specification of the site(s) for the performance of work to be done in connection with the grant.

Hold Harmless
The Grantee shall indemnify the State of California and its officer, agents and employees against and hold the same free and harmless from any and all claims, demands, damages, losses, costs, and/or expenses of liability due to, or arising out of, either in whole or in part, whether directly or indirectly, the organization, Development, construction, operation, or maintenance of the Project.

I. Civil Rights Assurance
The State certifies that, as a condition to receiving any Federal assistance from the Department of the Interior, it will comply with all Federal laws relating to nondiscrimination. These laws include, but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d-1), which prohibits discrimination on the basis of race, color, or national origin; (b) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794), which prohibits discrimination on the basis of handicap; (c) the Age Discrimination Act of 1975, as amended (42 U.S.C. 6101 et. seq.), which prohibits discrimination on the basis of age; and applicable regulatory requirements to the end that no person in the United States shall, on the grounds of race, color, national origin, handicap or age, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity conducted by the applicant. THE APPLICANT HEREBY GIVES ASSURANCE THAT it will immediately take any measures necessary to effectuate this agreement.

THIS ASSURANCE shall apply to all aspects of the applicant's operations including those parts that have not received or benefited from Federal financial assistance.

If any real property or structure thereon is provided or improved with the aid of Federal financial assistance extended to the Applicant by the Department, this assurance shall obligate the Applicant, or in the case of any transfer of such property, any transferee, for the period during which it retains ownership or possession of the property. In all other cases, this assurance shall obligate the Applicant for the period during which the Federal financial assistance is extended to it by the Department.

THIS ASSURANCE is given in consideration of and for the purpose of obtaining any and all Federal grants, loans, contracts, property, discounts or other Federal financial assistance extended after the date hereof to the Applicant by the Department, including installment payments after such date on account of applications for Federal financial assistance which were approved before such date.

The Applicant recognizes and agrees that such Federal financial assistance will be extended in reliance on the representations and agreements made in this assurance, and that the United State shall have the right to seek judicial enforcement of this assurance. This assurance is binding on the Applicant, its successors, transferees, assignees, and subrecipients and the person whose signature appears on the grant agreement and who is authorized to sign on behalf of the Applicant J. Debarment and Suspension
DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5

AGENDA ITEM #10.9
Deed Restriction for the South Jackson Park Accessibility Improvements P... Page 189 of 446 9 Certification Regarding Debarment, Suspension, and Other Responsibility Matters - Primary Covered Transactions
(1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission or embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statement, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. (2) Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

The State further agrees that it will include the clause "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transactions" appearing below in any agreement entered into with lower tier participants in the implementation of this grant. Department of Interior Form 1954 (DI- 1954) may be used for this purpose.

Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion - Lower Tier Covered Transactions
(1) The prospective lower tier participant certifies, by submission of this application that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
(2) Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this application.

DocuSign Envelope ID: 696E9A11-C81E-41A7-B7DB-97F10EE43FE5

AGENDA ITEM #10.9
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City Council
January 18, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Construction contract with Jacobsson Engineering Construction, Inc. in an amount not -to-exceed $562,530 for the Sundance -Corta Bella Communities Curb Ramp ADA Project (Project No. ST2304) and approval of the project specifications and making a determinatio n that the action is exempt from further environmental review pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act

RECOMMENDATION:

Approve the project plans and specifications for the Sundance -Corta Bella Communities Curb Ramp ADA Project (Project No. ST2304): award a construction contract to Jacobbson Engineering Construction, Inc. in an amount not -to-exceed $562,530 and approve a 10% contingency of $56,000.00, allowing for unexpected costs, for a total amount o f $618,530.00 and making a determination that the action is exempt from further environmental review pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act

SUMMARY:

On December 1, 2022, staff received and opened three (3) construction bids for the Sundance-Corta Bella Communities Curb Ramp ADA Project (Project No. ST2304). After performing a thorough bid analysis and due diligence, staff determined Jacobsson Engineeri ng Construction, Inc. is the lowest responsible bidder per the bid opening.

BACKGROUND INFORMATION:

On May 5, 2021, the City Council approved the Fiscal Year 2021/2022 Annual Action Plan for the use of Community Development Block Grant Funds. As part of the five-year Consolidated Plan, the City of Indio enacted the City’s Americans with Disabilities Act (ADA) Transition Plan. The plan identified and targeted public infrastructure improvements within low -income residential neighborhoods. The curb ramps w ithin the communities of Sundance and Corta Bella were found to be deficient and requiring upgrades to become compliant with the current ADA laws.

Located north of Avenue 48, east of Monroe Street, and west of Arabia Street, the project will consist of the removal and replacement of fifty -seven (57) curb ramps per City of Indio Standard Plans No. 136 to bring them into compliance with current ADA standards. Work will include removal and replacement of exiting concrete ramps, traffic control and resident/ business notifications. An allowance has been included to perform any minor required concrete work or other work that may be needed that is found during construction.

AGENDA ITEM #10.10
Construction contract with Jacobsson Engineering Construction, Inc. in a... Page 191 of 446 The project was advertised on October 26, 2022. The City received and opened bids on D ecember 1, 2022. A total of three (3) sealed bids were received. A summary of the bids received is provided below.

Proposer Name Location Total Bid
Jacobsson Engineering
Construction, Inc Palm Desert, CA $562,530.00
Onyx Paving Company, Inc. Anaheim, CA $696,000.00
Hardy & Harper, Inc. Lake Forest, CA $711,000.00

Public Works staff examined the submissions, and after a careful review of the project requirements and bid documents, staff determined that the lowest r esponsible bidder is Jacobsson Engineering Construction, Inc. This company is appropriately licensed and qualified to perform the work within the project Engineering to contract the Jacobsson recommends Staff specifications. awarding Construction, Inc.

The Engineer’s construction cost estimate was $345,000.

The City Engineer has reviewed the specifications for the project and in his opinion, the project specifications are reasonable and meet professional engineering standards. Therefore, the City Engineer recommends that the City Council also approve the project specifications, which are on file in the Department of Public Works. Construction is scheduled to take place from February 2023 to May 2023.
2023.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$618,530.00 In current year budget: Yes
Current FY General
Fund Impact:
$0 Budget adjustment: No
Next FY Financial
Impact:
$0 Strategic Objective:

Source of funds: CDBG and various CIP funds Fund-Org-Object Reference:

N/A

Additional Financial Details:

The total construction cost, including contingency, is anticipated to be $618,530.00 as outlined below:

ATP General Engineering Contractors $ 562,530.00
Contingency $ 56,000.00
Total $ 618,530.00

The Fiscal Year 2021/2022 Annual Action Plan for CDBG funds appropriated $373,097 of CDBG funding towards this project. $309,000 of this funding is available to award the construction contract for the project development and management costs.

AGENDA ITEM #10.10
Construction contract with Jacobsson Engineering Construction, Inc. in a... Page 192 of 446 Due to CDB G savings in other eligible capital improvement projects, the City has an additional $96,949.50 of CDBG funds available from the Fiscal Year 20/21 Annual Action Plan that can be programmed to this project. Since this amount is less than 30% of the initial CDBG reappropriation, this can be done with an administrative amendment.

As such, the City has $406,333.50 of CDBG funds available.

Fiscal Year 2021/2022 $ 309,000.00
Fiscal Year 2020/2021 $ 97,333.50
Total $ 406,333.50

Staff requests an additional $212,196.50 of funding be reallocated from project savings in Gas Tax and Measure A from other Capital Improvement Projects.

CDBG $ 406,333.50
Gas Tax (Fund 210) $ 38,000.00
Measure A (Fund 212) $ 174,196.50
Total $ 618,530.00

ATTACHMENTS:

Attachment 1
Attachment 2

APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 10 Jan 2023 Steven Graham, City Attorney Approved - 10 Jan 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 10 Jan 2023 Bryan H. Montgomery, City Manager Approved - 10 Jan 2023

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PROJECT LOCATION MAP

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1 City Project: ST2304 City of Indio Public Works

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CONSTRUCTION CONTRACT WITH

JACOBBSON ENGINEERING CONSTRUCTION

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CONTRACT

CITY OF INDIO CONTRACT FOR

SUNDANCE-CORTA BELLA COMMUNITIES CURB RAMP ADA UPGRADE

PROJECT
PROJECT NUMBER: ST2304

THIS CONTRACT (“Contract”) is made and entered this ___________________, 2022 (“Effective Date”), by and between the CITY OF INDIO, a California municipal corporation (“City”) and ________________________________________, a ______________________________ [Legal Form of Entity and state of formation, e.g., California corporation, lim ited partnership, limited liability company] (“Contractor”). Contractor’s California State Contractor’s license number is ______________; Class ____). Contractor’s DIR registration number is _______________.

In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows:

1. Contract Documents. The Contract Documents consist of this Contract, the Notice Inviting Bids, Instructions to Bidders, Bid (including documentation accompanying the Bid and any post - Bid documentation submitted before the Notice of Award), the Bonds, permits from regulatory agencies with jurisdiction, General Provisions, Special Provisions, Plans, Standard Plans, Standard Specifications, Reference Specifications, Addenda, Change Orders, and Supplemental Agreements. The Contract Documents are attached hereto and incorporated herein by reference.

2. Scope of Services. Contractor shall perform the Work in a good and workmanlike manner for the project identified as _________________________________________ (“ Project”), as described in this Contract and in the Contract Documents.

3. Compensation. In consideration of the services rendered hereunder, City shall pay Contractor a not to exceed amount of ______________________ dollars ($____________) in accordance with the prices as submitted in the Bid.

4. Incorporation by Reference. All of the following documents are attached hereto and incorporated herein by this reference: Workers’ Compensation Certificate of Insurance, Additional Insured Endorsement (Comprehensive General Liability), Additional Insured Endorsement (Automobile Liability), and Additional Insured Endorsement (Excess Liability).

5. Antitrust Claims. In entering into this Contract, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. § 15) or under the Cartwright Act (Business and Professions Code Section 16700 et seq.) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time City tenders final payment to Contractor without further acknowledgment by the parties.

6. Funding. Contractor and Owner do hereby acknowledge that this project will be partially or fully funded with Community Development Block Grant (CDBG) funds [24 CFR 570] and is therefore subject to applicable Federal procurement, labor, environmental, equal opportunity, and other regulations.

7. Prevailing Wages. City and Contractor acknowledge that the Project is a public work to which prevailing wages apply. Contractor shall comply with the Davis -Bacon Fair Labor Standards Act (40 USC a-276, a-5) and the implementation regulations issued pursuant thereto (29 CFR Section 1, 5) and any amendments thereof. Pursuant to the said regulations. Contractor

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shall comply with the U.S. Department of Housing and Urban Development’s Federal Labor Standards Provisions (HUD 4010).

Contractor acknowledges that work under this contract is subject to t he payment of prevailing wages pursuant to Section 1770 and 1773 et seq. of the Labor Code of the State of California, the Director of Industrial Relations (State Prevailing Wages), and the U.S. Department of Housing and Urban Development’s Federal Labor S tandards Provisions (Davis -Bacon Act Prevailing Wages). The Contractor to whom the contract is awarded, and all subcontractors under him, shall pay the higher of the Federal or State prevailing wage rate for any given classification employed in the performance of this contract.

Contractor acknowledges that the applicable Wage Determination for this project is:

General Decision Number: CA20220025
Modification Number: 12
Date: 10/07/2022

8. Workers’ Compensation. Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of Labor Code Section 1861, by signing this Contract , the Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self - insurance in accordance with the provisions of that Code, and I will compl y with such provisions before commencing the performance of the Work of this Contract.”

9. Section 3 Compliance. The Contractor hereby acknowledges that this federally -funded project is subject to Section 3 of the Housing and Urban Development Act of 1968 [12 U.S.C. 1701u and 24 CFR Part 135] and agrees to the following:

A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD Assistance for housing.

B. The parties to this contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 CFR 570, and all applicable rules and orders of the Department issued hereunder prior to the execution of this contract. The parties to this contract certify and agree that they are under no contractual or other disability which would prevent them from complying with these requirements.

C. The contractor will send to each labor organization, or representative or workers, with which he has collective bargaining agreement or other contract, or understanding, if any, a notice advising the said labor organization or worker s; representative of his commitments under this Section 3 Clause and shall post copies of the notice in a

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conspicuous place available to employees and applicants for employment or training.

D. The contractor will include this Section 3 Clause in every sub-tier contract for work in connection with the project and will, at the direction of the applicant for, or recipient of, the Federal financial assistance, take appropriate action pursuant to the sub- tier contract upon finding that the subcontractor is in violation of the regulations issued by the Secretary of Housing, and Urban Development, 24 CFR 570. The contractor will not enter into any sub- tier contract with any subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR 570 and will not let any subcontract unless the subcontractor has first provided it with a preliminary statement of ability to comply with the requirements of these regulations.

E. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR 570, and all applicable rules and orders of the Department issued thereunder prior to the execution of the contract, shall be a condition of the Federal financial assistance provided to the project binding upon the applicant or recipient for such assistance, its successors, and assigns. Failure to fulfill these requirements shall subject the applicant or recipient, its contractors and subcontractors, its successors, and assigns to those sanctions specified by the grant or loan agreement or contract through which Federal assistance is provided, and to such sanctions as are specified by 24 CFR 135.

F. All contractors and their subcontractors shall include as part of their bid proposal a copy of their Section 3 Affirmative Action Plan. The Plan should include the following:
a. A preliminary statement of workforce needs (skilled, semi -skilled, unskilled labor and trainees by category).
b. Goals (in percentage) relative to utilization of lower income persons in project area. c. Goals relative to the project dollar amount of subcontractors to be awarded to project area business.

10. Additional Federal Requirements. Whereas, the work under this Agreement is subject to applicable Federal, State, and local laws and regulations, including but not limited to the regulations pertaining to the Community Development Block Grant program ( 24 CFR Part 570) and the Uniform Administrative Requirement, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200). Contractor, sub-contractors, Consultants, and sub-consultants agree to comply with, and are subject to, all applicable requirements as follows:

A. Equal Employment Opportunity - Compliance with Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity", as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). The Contractor/Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. Contractor/Consultant will ensure that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. The Contractor/Consultant will take affirmative action to ensure that applicants are employed and the employees are treated during employment, without regard to their race color, religion, sex, or national origin. Such actions shall include, but are not limited to, the following: employment, up- grading, demotion, or transfer; recruitment or recruitment advertising; rates of pay or other

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forms of compensation; and selection for training, including apprenticeship. The Contractor/Consultant agrees to post in a conspicuous place, available to employees and applicants for employment, notices setting forth the provisions of this non - discriminating clause.

B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c: All contracts and subgrants in excess of $2,000 for construction or repair awarded by recipients and subrecipients shall include a provision for compliance with the Copeland “Anti - Kickback” Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient shall report all suspected or reported violations to HUD.

C. Davis-Bacon Act, as amended (40 U.S.C. 276a to a- 7: When required by Federal program legislation, all construction contracts awarded by the recipients and subrecipients of more than $2000 shall include a provision for compliance with the Davis-Bacon Act (40 U. S.C. 276a to a- 7) and as supplemented by Department of Labor regulations (29 CFR part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under this Act, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The recipient shall place a copy of t he current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. The recipient shall report all suspected or reported violations to HUD.

D. Contract Work Hours and Safety Standards Act (40 U.S.C. 327 through 333: Where applicable, all contracts awarded by recipients in excess of $2000 for construction contracts and in excess of $2500 for other contracts that involve the employment of mechanics or laborers shall include a provision for compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327– 333), as supplemented by Department of Labor regulations (29 CFR part 5). Under Section 102 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard workweek of 40 hours. Work in excess of the standard workweek is permissible provided that the worker is compensated at a rate of not less than 1 1/2 times the basic rate of pay for all hours worked in excess of 40 hours in the workweek. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working c onditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

E. Rights t o Inventions Made Under a Contract or Agreement — Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, “Rights to Inventions Made by Nonprofit

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Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by HUD.

F. Rights to Data and Copyrights – Contractors and consultants agree to comply with all applicable provisions pertaining to the use of data and copyrights pursuant to 48 CFR Part 27.4, Federal Acquisition Regulations (FAR).

G. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended—Contracts and subgrants of amounts in excess of $100,000 shall contain a provision that requires the recipient to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.). Violations shall be reported to HUD and the Regional Office of the Environmental Protection Agency (EPA).

H. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)— Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influenci ng or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S. C. 1352. Each tier shall also disclose any lobbying with non- Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier-to-tier up to the recipient.

I. Debarment and Suspension (E.O.s 12549 and 12689)—No contract shall be made to parties listed on the General Services Administration's List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O.s 12549 and 12689, “Debarment and Suspension,” as set forth at 24 CFR part 24. This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O. 12549. Contractors with awards that exceed the small purc hase threshold shall provide the required certification regarding its exclusion status and that of its principal employees.

J. Drug-Free Workplace Requirements—The Drug- Free Workplace Act of 1988 (42 U.S.C. 701) requires grantees (including individuals) of federal agencies, as a prior condition of being awarded a grant, to certify that they will provide drug -free workplaces. Each potential recipient must certify that it will comply with drug- free workplace requirements in accordance with the Act and with HUD's rules at 24 CFR part 24, subpart F.

K. Access to Records and Records Retention: The Consultant or Contractor, and any sub-consultants or sub- contractors, shall allow all duly authorized Federal, State, and/or County officials or authorized representatives access to the work area, as well as all books, documents, materials, papers, and records of the Consultant or Contractor, and any sub-consultants or sub-contractors, that are directly pertinent to a specific program for the purpose of making audits, examinat ions, excerpts, and transcriptions. The Consultant or Contractor, and any sub -consultants or sub- contractors, further agree to maintain and keep such books, documents, materials,

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papers, and records, on a current basis, recording all transactions pertaining to this agreement in a form in accordance with generally acceptable accounting principles.

All such books and records shall be retained for such periods of time as required by law, provided, however, notwithstanding any shorter periods of retention, all books, records, and supporting detail shall be retained for a period of at least four (4) years after the expiration of the term of this Agreement.

L. Federal Employee Benefit Clause: No member of or delegate to the congress of the United States, and no Resident Commissioner shall be admitted to any share or part of this agreement or to any benefit to arise from the same.

M. Energy Efficiency: Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94A 163, 89 Stat. 871).

N. Procurement of Recovered Materials (2 CFR 200.322.) A non-Federal entity that is a state agency or agency of a political subdivision of a state and its cont ractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

11. Titles. The titles used in this Contract are for convenience only and shall in no way define, limit or describe the scope or intent of this Contract or any part of it.

12. Authority. Any person executing this Contract on behalf of Contractor warrants and represents that he or she has the authority to execute this Contract on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations hereunder.

13. Entire Agreement . This Contract, i ncluding the Contract Documents and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between City and Contractor. This Contract supersedes all prior oral or written negotiations, representations or agreements. This Contract may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties that expressly refers to this Contract.

14. Counterparts. This Contract may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes.

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IN WITNESS WHEREOF, the parties hereto have exec uted this Contract the day and year first above written.

CITY OF INDIO
By:

Mayor
ATTEST: APPROVED AS TO FORM:

By: By:

City Clerk City Attorney

Dated:
(“CONTRACTOR”)

By:

By:

AGENDA ITEM #10.10
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City Council
January 18, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Construction contract with Yunex LLC in an amount not -to-exceed $450,921 for the Street Light Upgrades Phase II Project (Project No. SL2301) and approval of the project specifications and making a determination that the action is exempt from further environmental review pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act

RECOMMENDATION:

Approve the project plans and specifications for the Street Light Upgrades Phase II Project (Project No. SL2301); award a construction contract to Yunex LLC in an amount not-to-exceed $450,921, and approve a contingency of $45,000, allowing for unexpected costs, for a total amount of $495,921 and making a determination that the action is exempt from further environmental review pu rsuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act

SUMMARY:

On December 20, 2022, staff received and opened three (3) construction bids for the Street Light Upgrades Phase II Project (Project No. SL2301). After performing a thorough bid analysis and due diligence, the staff determined Yunex LLC is the lowest responsible bidder per the bid opening.

BACKGROUND INFORMATION:

The City plans to upgrade 993 streetlights within the Community Development Block Grant (CDBG) Eligible area with current City standard LED Fixtures, which only includes the head of the streetlight.

In addition to updating the streetlight fixtures to LED, the City bid four (4) additive alternates for the project.

1. Removal and replacement of twenty (20) streetlight poles (overhead electrical service)

2. Removal and replacement of twenty (20) streetlight poles (underground electrical service)

3. Remove and replace five (5) light pole foundations

4. Arborist Services for up to ten (10) trees.

Many of the streetlight poles in this area are not up to City Standards. These additive alternates provide for the removal and replace of up to forty (40) poles to improve the reliability of the streetlight.

This will not correct all deficient poles in the eligible area but include a significant portion of the 125 deficient poles. Including pole replacements in th e project will lengthen the delivery of the project because poles have a long lead-time for delivery. In addition, staff will need to work closely with the Imperial Irrigation District (IID) to schedule power shut off for the replacement poles.

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Construction contract with Yunex LLC in an amount not-to-exceed $450,921... Page 204 of 446

Based on available budget the City has the option to award all or none of these additive alternates.

The project was advertised on November 29, 2022. The City received and opened bids on December 20, 2022. A total of three (3) sealed bids were received. A summary of the bids received is provided below. The Engineer’s construction cost estimate was $639,480.

Proposer Name Location Total Bid
Yunex LLC Riverside, CA $719,921.00
Servitek Electric, Inc. Walnut, CA $903,685.00
Crosstown Electrical & Data,
Inc. Irvindale, CA $1,169,870.00

Public Works staff examined the submissions, and after a careful review of the project requirements and bid documents, staff determined that the lowest responsible bidder is Yunex LLC. The company is appropriately licensed and qualified to perform the wor k within the project specifications. Staff recommends awarding the contract to Yunex LLC.

The City Engineer has reviewed the specifications for the project and in his opinion, the project specifications are reasonable and meet professional engineering s tandards. Therefore, the City Engineer recommends that the City Council also approve the project specifications, which are on file in the Department of Public Works. Construction is scheduled to take place from February 2023 to May 2023 contingent on the ordering of long lead-time items.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$495,921.00 In current year budget: Yes
Current FY General
Fund Impact:
$0 Budget adjustment: N/A
Next FY Financial
Impact:
$0 Strategic Objective:

Source of funds: Community Development Block
Grant Fund-Org-Object
Reference:
300-523066

ATTACHMENTS:

Attachment 1
Attachment 2
Attachment 3

APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 09 Jan 2023 Steven Graham, City Attorney Approved - 10 Jan 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 10 Jan 2023 Bryan H. Montgomery, City Manager Approved - 10 Jan 2023

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PROJECT LOCATION MAP

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BID SUMMARY

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Construction contract with Yunex LLC in an amount not-to-exceed $450,921...Page 208 of 446 Item Unit QuantityUnit Price Total Cost Unit Price Total Cost Unit Price Total Cost Unit Price Total Cost 1 LS 1 $ 30,000.00 $ 30,000.00 6,500.00$ 6,500.00$ 6,000.00$ 6,000.00$ 31,500.00$ 31,500.00$ 2 LS 1 $ 20,000.00 $ 20,000.00 4,500.00$ 4,500.00$ 6,000.00$ 6,000.00$ 25,000.00$ 25,000.00$ 3 EA 216 $ 360.00 $ 77,760.00 345.00$ 74,520.00$ 443.00$ 95,688.00$ 450.00$ 97,200.00$ 4 EA 656 $ 360.00 $ 236,160.00 456.00$ 299,136.00$ 596.00$ 390,976.00$ 605.00$ 396,880.00$ 5 EA 121 $ 360.00 $ 43,560.00 465.00$ 56,265.00$ 596.00$ 72,116.00$ 605.00$ 73,205.00$ 6 FA 1 $ 10,000.00 $ 10,000.00 10,000.00$ 10,000.00$ 10,000.00$ 10,000.00$ 10,000.00$ 10,000.00$ Subtotal Base Bid: 417,480.00$ 450,921.00$ 580,780.00$ 633,785.00$ 417,480.00$ 450,921.00$ 580,780.00$ 633,785.00$ Item Unit QuantityUnit Price Total Cost Unit Price Total Cost Unit Price Total Cost Unit Price Total Cost 1 EA 20 $ 4,500.00 $ 90,000.00 5,850.00$ 117,000.00$ 6,813.00$ 136,260.00$ 10,235.00$ 204,700.00$ 2 EA 20 $ 4,600.00 $ 92,000.00 6,200.00$ 124,000.00$ 6,964.00$ 139,280.00$ 12,685.00$ 253,700.00$ 3 EA 5 $ 7,000.00 $ 35,000.00 3,500.00$ 17,500.00$ 6,813.00$ 34,065.00$ 13,487.00$ 67,435.00$ 4 EA 10 $ 500.00 $ 5,000.00 1,050.00$ 10,500.00$ 1,330.00$ 13,300.00$ 1,025.00$ 10,250.00$ Subtotal Base Bid: 222,000.00$ 269,000.00$ 322,905.00$ 536,085.00$ 222,000.00$ 269,000.00$ 322,905.00$ 536,085.00$ 639,480.00$ 719,921.00$ 903,685.00$ 1,169,870.00$ Addenda Confirmed 1 1 1
Servitek Electric Inc.Yunex LLC.

Grand Total Bid Price (Base + Additive Alternate)
Crosstown Electrical & Data Inc. Engineers Estimate - Base Bid Total Base Bid Only:

Total Alternative Bid Only:

Item Description
Item Description
Additive Alternate Schedules
Remove and Replace Light Pole Foundation to Meet City Standard 202 Arborist Services (For 10 Street Lights)
Street Light Pole and Fixture Removal and Replacement (Overhead Electrical Services) Mobilization, Demobilization, and Final Clean up
Temporary Traffic Control
Fixture Removal and Replacement 29W LED
Miscellaneous Work (As Directed)
Street Light Pole and Fixture Removal and Replacement (Underground Electrical Services) Bid Summary
Indio SL2301
Bid Opening 12-20-2022
Fixture Removal and Replacement 89W LED
Fixture Removal and Replacement 121W LED

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CONTRUCTION CONTRACT

WITH YUNEX, LLC

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CONTRACT

CITY OF INDIO CONTRACT FOR

STREET LIGHT UPGRADES PHASE II PROJECT
PROJECT NUMBER: SL2301

THIS CONTRACT (“Contract”) is made and entered this ___________________, 2022 (“Effective Date”), by and between the CITY OF INDIO, a California municipal corporation (“City”) and ________________________________________, a ______________________________ [Legal Form of Entity and state of formation, e.g., California corporation, limited partnership, limited liability company] (“Contractor”). Contractor’s California State Contractor’s license number is ______________; Class ____). Contractor’s DIR registration number is _______________.

In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows:

1. Contract Documents. The Contract Documents consist of this Contract, the Notice Inviting Bids, Instructions to Bidders, Bid (including documentation accompanying the Bid and any post - Bid documentation submitted before the Notice of Award), the Bonds, permits from regulatory agencies with jurisdiction, General Provisions, Special Provisions, Plans, Standard Plans, Standard Specifications, Reference Specifications, Addenda, Change Orders, and Supplemental Agreements. The Contract Documents are attached hereto and incorporated herein by reference.

2. Scope of Services. Contractor shall perform the Work in a good and workmanlike manner for the project identified as _________________________________________ (“Project”), as described in this Contract and in the Contract Documents.

3. Compensation. In consideration of the services rendered hereunder, City shall pay Contractor a not to exceed amount of ______________________ dollars ($____________) in accordance with the prices as submitted in the Bid.

4. Incorporation by Reference. All of the following documents are attached hereto and incorporated herein by this reference: Workers’ Compensation Certificate of Insurance, Additional Insured Endorsement (Comprehensive General Liability), Additional Insured Endorsement (Automobile Liability), and Additional Insured Endorsement (Excess Liability).

5. Antitrust Claims. In entering into this Contract, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. § 15) or under the Cartwright Act (Business and Professions Code Section 16700 et seq.) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time City tenders final payment to Contractor without further acknowledgment by the parties.

6. Funding. Contractor and Owner do hereby acknowledge that this project will be partially or fully funded with Community Development Block Grant (CDBG) funds [24 CFR 570] and is therefore subject to applicable Federal procurement, labor, environmental, equal opportunity, and other regulations.

7. Prevailing Wages. City and Contractor acknowledge that the Project is a public work to which prevailing wages apply. Contractor shall comply with the Davis -Bacon Fair Labor Standards Act (40 USC a-276, a-5) and the implementation regulations issued pursuant thereto (29 CFR Section 1, 5) and any amendments thereof. Pursuant to the said regulations. Contractor shall comply with the U.S. Department of Housing and Urban Development’s Federal Labor

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Standards Provisions (HUD 4010).

Contractor acknowledges that work under this contract is subject to the payment of prevailing wages pursuant to Section 1770 and 1773 et seq. of the Labor Code of the State of California, the Director of Industrial Relations (State Prevailing Wages), and the U.S. Department of Housing and Urban Development’s Federal Labor Standards Provisions (Davis -Bacon Act Prevailing Wages). The Contractor to whom the contract is awarded, and all subcontractors under him, shall pay the higher of the Federal or State prevailing wage rate for any given classification employed in the performance of this contract.

Contractor acknowledges that the applicable Wage Determination for this project is:

General Decision Number: CA20220025
Modification Number: 12
Date: 10/07/2022

8. Workers’ Compensation. Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of Labor Code Section 1861, by signing this Contract , the Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self - insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the Work of this Contract.”

9. Section 3 Compliance. The Contractor hereby acknowledges that this federally -funded project is subject to Section 3 of the Housing and Urban Development Act of 1968 [12 U.S.C. 1701u and 24 CFR Part 135] and agrees to the following:

A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD Assistance for housing.

B. The parties to this contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 CFR 570, and all applicable rules and orders of the Department issued hereunder prior to the execution of this contract. The parties to this contract certify and agree that they are under no contractual or other disability which would prevent them from complying with these requirements.

C. The contractor will send to each labor organization, or representative or workers, with which he has collective bargaining agreement or other contract, or understanding, if any, a notice advising the said labor organization or workers; representative of his commitments under this Section 3 Clause and shall post copies of the notice in a conspicuous place available to employees and applicants for employment or training.

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D. The contractor will include this Section 3 Clause in every sub-tier contract for work in connection with the project and will, at the direction of the applicant for, or recipient of, the Federal financial assistance, take appropriate action pursuant to the sub- tier contract upon finding that the subcontractor is in violation of the regulations issued by the Secretary of Housing, and Urban Development, 24 CFR 570. The contractor w ill not enter into any sub- tier contract with any subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR 570 and will not let any subcontract unless the subcontractor has first provided it wit h a preliminary statement of ability to comply with the requirements of these regulations.

E. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR 570, and all applicable rules and orders of the Department issued thereunder prior t o the execution of the contract, shall be a condition of the Federal financial assistance provided to the project binding upon the applicant or recipient for such assistance, its successors, and assigns. Failure to fulfill these requirements shall subject the applicant or recipient, its contractors and subcontractors, its successors, and assigns to those sanctions specified by the grant or loan agreement or contract through which Federal assistance is provided, and to such sanctions as are specified by 24 CFR 135.

F. All contractors and their subcontractors shall include as part of their bid proposal a copy of their Section 3 Affirmative Action Plan. The Plan should include the following:
a. A preliminary statement of workforce needs (skilled, semi-skilled, unskilled labor and trainees by category).
b. Goals (in percentage) relative to utilization of lower income persons in project area. c. Goals relative to the project dollar amount of subcontractors to be awarded to project area business.

10. Additional Federal Requirements. Whereas, the work under this Agreement is subject to applicable Federal, State, and local laws and regulations, including but not limited to the regulations pertaining to the Community Development Block Grant program ( 24 CFR Part 570) and the Uniform Administrative Requirement, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200). Contractor, sub-contractors, Consultants, and sub-consultants agree to comply with, and are subject to, all applicable requirements as follows:

A. Equal Employment Opportunity - Compliance with Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity", as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). The Contractor/Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. Contractor/Consultant will ensure that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. The Contractor/Consultant will take affirmative action to ensure that applicants are employed and the employees are treated during employment, without regard to their race color, religion, sex, or national origin. Such actions shall include, but are not limited to, the following: employment, up- grading, demotion, or transfer; recruitment or recruitment advertising; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor/Consultant agrees to post in a conspicuous place, available to employees

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and applicants for employment, notices setting forth the provisions of this non- discriminating clause.

B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c: All contracts and subgrants in excess of $2,000 for construction or repair awarded by recipients and subrecipients shall include a provision for compliance with the Copeland “Anti - Kickback” Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient shall report all suspected or reported violations to HUD.

C. Davis-Bacon Act, as amended (40 U.S.C. 276a to a- 7: When required by Federal program legislation, all construction contracts awarded by the recipients and subrecipients of more than $2000 shall include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to a- 7) and as supplemented by Department of Labor regulations (29 CFR part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under this Act, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The recipient shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. The recipient shall report all suspected or reported violations to HUD.

D. Contract Work Hours and Safety Standards Act (40 U.S.C. 327 through 333: Where applicable, all contracts awarded by recipients in excess of $2000 for construction contracts and in excess of $2500 for other contracts that involve the employment of mechanics or laborers shall include a provision for compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327– 333), as supplemented by Department of Labor regulations (29 CFR part 5). Under Section 102 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard workweek of 40 hours. Work in excess of the standard workweek is permissible provided that the worker is compensated at a rate of not less than 1 1/2 times the basic rate of pay for all hours worked in excess of 40 hours in the workweek. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

E. Rights to Inventions Made Under a Contract or Agreement — Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by HUD.

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F. Rights to Data and Copyrights – Contractors and consultants agree to comply with all applicable provisions pertaining to the use of data and copyrights pursuant to 48 CFR Part 27.4, Federal Acquisition Regulations (FAR).

G. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended—Contracts and subgrants of amounts in excess of $100,000 shall contain a provision that requires the recipient to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.). Violations shall be reported to HUD and the Regional Office of the Environmental Protection Agency (EPA).

H. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)— Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying with non- Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier-to-tier up to the recipient.

I. Debarment and Suspension (E.O.s 12549 and 12689)—No contract shall be made to parties listed on the General Services Administration's List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O.s 12549 and 12689, “Debarment and Suspension,” as set forth at 24 CFR part 24. This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O. 12549. Contractors with awards that exceed the small purchase threshold shall provide the required certification regarding its exclusion status and that of its principal employees.

J. Drug-Free Workplace Requirements—The Drug- Free Workplace Act of 1988 (42 U.S.C. 701) requires grantees (including individuals) of federal agencies, as a prior condition of being awarded a grant, to certify that they will provide drug -free workplaces. Each potential recipient must certify that it will comply with drug-free workplace requirements in accordance with the Act and with HUD's rules at 24 CFR part 24, subpart F.

K. Access to Records and Records Retention: The Consultant or Contractor, and any sub-consultants or sub- contractors, shall allow all duly authorized Federal, State, and/or County officials or authorized representatives access to the work area, as well as all books, documents, materials, papers, and records of the Consultant or Contractor, and any sub-consultants or sub-contractors, that are directly pertinent to a specific program f or the purpose of making audits, examinations, excerpts, and transcriptions. The Consultant or Contractor, and any sub -consultants or sub- contractors, further agree to maintain and keep such books, documents, materials, papers, and records, on a current basis, recording all transactions pertaining to this agreement in a form in accordance with generally acceptable accounting principles.

All such books and records shall be retained for such periods of time as required by

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law, provided, however, notwithstanding any shorter periods of retention, all books, records, and supporting detail shall be retained for a period of at least four (4) years after the expiration of the term of this Agreement.

L. Federal Employee Benefit Clause: No member of or delegate to the congress of the United States, and no Resident Commissioner shall be admitted to any share or part of this agreement or to any benefit to arise from the same.

M. Energy Efficiency: Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94A 163, 89 Stat. 871).

N. Procurement of Recovered Materials (2 CFR 200.322.) A non-Federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

11. Titles. The titles used in this Contract are for convenience only and shall in no way define, limit or describe the scope or intent of this Contract or any part of it.

12. Authority. Any person executing this Contract on behalf of Contractor warrants and represents that he or she has the authority to execute this Contract on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations hereunder.

13. E ntire Agreement . This Contract , including the Contract Documents and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between City and Contractor. This Contract supersedes all prior oral or wri tten negotiations, representations or agreements. This Contract may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties that expressly refers to this Contract.

14. Counterparts. This Contract may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes.

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IN WITNESS WHEREOF, the parties hereto have exec uted this Contract the day and year first above written.

CITY OF INDIO
By:

Mayor
ATTEST: APPROVED AS TO FORM:

By: By:

City Clerk City Attorney

Dated:
(“CONTRACTOR”)

By:

By:

AGENDA ITEM #10.11
Construction contract with Yunex LLC in an amount not-to-exceed $450,921... Page 217 of 446 City of Indio
City Council
January 18, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Construction contract with ATP General Engineering Contractors in an amount not -to-exceed $579,106.50 for the Zalay Ranch and Park Paseo Pavement Improvements (Project No. ST2302) and approval of the project specifications and making a determination that the action is exempt from further environmental revi ew pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act

RECOMMENDATION:

Approve the project plans and specifications for the Zalay Ranch and Park Paseo Pavement Improvements (Project No. ST2302); award a constructi on contract to ATP General Engineering Contractors in an amount not -to-exceed $579,106.50, and approve a contingency of $50,000.00, allowing for unexpected costs, for a total amount of $629,106.50 and making a determination that the action is exempt from further environmental review pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act

SUMMARY:

On December 22, 2022, staff received and opened six (6) construction bids for the Zalay Ranch and Park Paseo Pavement Improvement Project (Project No. ST2302). After performing a thorough bid analysis and due diligence, staff determined ATP General Enginee ring Contractors is the lowest responsible bidder per the bid opening.

BACKGROUND INFORMATION:

The City has developed a Pavement Management Program to assess the street conditions every five (5) years. The communities of Zalay Ranch and Park Paseo have been identified within the program for improvements to raise the overall Pavement Condition Index within the City’s Community Development Block Grant (CDBG) limits.

Project improvements include grinding and overlaying the existing asphalt concrete for th e following streets: St. Thomas Lane, Jennifer Court, Tomin Way, Bradley Way, Paseo Entrada, Paseo Real Avenue, Paseo Sereno, Sierra Avenue, and Paseo Cielo. The project will also include the removal and replacement of 12 curb ramps per City of Indio Stan dard Plans No. 136 to bring them into compliance with current ADA standards. Work will include removal of existing concrete ramps, sidewalk, AC pavement, concrete pavement/cross-gutters, fine grading and compaction, construction of new curb ramps, sidewalk , AC pavement, concrete pavement/cross -gutters, traffic control and resident/business notifications. An allowance has been included to perform any minor required concrete work or other work that may be needed that is found during construction.

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The project was advertised on December 1, 2022. The City received and opened bids on December 22, 2022. A total of six (6) sealed bids were received. A summary of the bids received is provided below.

Proposer Name Location Total Bid
Hanson Aggregate Pacific
Southwest LLC
DBA: ATP General Engineering
Contractors
San Diego, CA $579,106.50
Onyx Paving Company, Inc. Anaheim, CA $584,000.00
Granite Construction Company Indio, CA $587,785.00
Vance Corporation Beaumont, CA $606,628.80
Hardy & Harper, Inc. Lake Forest, CA $608,976.00
Matich Corporation San Bernardino, CA $635,450.00

Public Works staff examined the submissions, and after a careful review of the project requirements and bid documents, staff determined that the lowest responsible bidder is ATP General Engineering Contractors. The company is appropriately licensed and qu alified to perform the work within the project specifications. Staff recommends awarding the contract to ATP General Engineering Contractors.

The Engineer’s construction cost estimate was $513,715.25.

The City Engineer has reviewed the specifications for the project and in his opinion, the project specifications are reasonable and meet professional engineering standards. Therefore, the City Engineer recommends that the City Council also approve the project specifications, which are on file in the Department of Public Works. Construction is scheduled to take place from February 2023 to May 2023.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$629,106.50 In current year budget: Yes
Current FY General
Fund Impact:
$0 Budget adjustment: No
Next FY Financial
Impact:
$0 Strategic Objective:

Source of funds: CDBG Fund-Org-Object
Reference:
300-523006

Additional Financial Details:

The total construction cost, including contingency, is anticipated to be $629,106.50 as outlined below:

ATP General Engineering Contractors $ 579,106.50
Contingency $ 50,000.00
Total $ 629,106.50

AGENDA ITEM #10.12
Construction contract with ATP General Engineering Contractors in an amo... Page 219 of 446 The Fiscal Year 22/23 Annual Action Plan for CDBG funds appropriated $589,384 of this project. The remaining balance will be covered by CDBG funds received in a prior period (fiscal year 20/21).

Because the use of prior period funds is less than 30% of t he initial CDBG appropriation, the reallocation of funds is an administrative amendment. As such, the City has $629,106.50 of CDBG funds available to pay for 100% of this award.

Fiscal Year 22/23 $ 589,384.00
Fiscal Year 20/21 $ 39,722.50
Total $ 629,106.50

ATTACHMENTS:

Attachment 1
Attachment 2

APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 09 Jan 2023 Steven Graham, City Attorney Approved - 10 Jan 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 10 Jan 2023 Bryan H. Montgomery, City Manager Approved - 10 Jan 2023

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PROJECT LOCATION MAP

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1 City Project: ST2302 City of Indio Public Works

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CONSTRUCTION CONTRACT WITH

ATP GENERAL ENGINEERING

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CONTRACT

CITY OF INDIO CONTRACT FOR

ZALAY RANCH AND PARK PASEO PAVEMENT REHABILITATION PROJECT PROJECT NUMBER: ST2302

THIS CONTRACT (“Contract”) is made and entered this ___________________, 2022 (“Effective Date”), by and between the CITY OF INDIO, a California municipal corporation (“City”) and ________________________________________, a ______________________________ [Legal Form of Entity and state of formation, e.g., California corporation, limited partnership, limited liability company] (“Contractor”). Contractor’s California State Contractor’s license number is ______________; Class ____). Contractor’s DIR registration number is _______________.

In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows:

1. Contract Documents. The Contract Documents consist of this Contract, the Notice Inviting Bids, Instructions to Bidders, Bid (including documentation accompanying the Bid and any post - Bid documentation submitted before the Notice of Award), the Bonds, permits from regulatory agencies with jurisdiction, General Provisions, Special Provisions, Plans, Standard Plans, Standard Specifications, Reference Specifications, Addenda, Change Orders, and Supplemental Agreements. The Contract Documents are attached hereto and incorporated herein by reference.

2. Scope of Services. Contractor shall perform the Work in a good and workmanlike manner for the project identified as _________________________________________ (“Project”), as described in this Contract and in the Contract Documents.

3. Compensation. In consideration of the services rendered hereunder, City shall pay Contractor a not to exceed amount of ______________________ dollars ($____________) in accordance with the prices as submitted in the Bid.

4. Incorporation by Reference. All of the following documents are attached hereto and incorporated herein by this reference: Workers’ Compensation Certificate of Insurance, Additional Insured Endorsement (Comprehensive General Liability), Additional Insured Endorsement (Automobile Liability), and Additional Insured Endorsement (Excess Liability).

5. Antitrust Claims. In entering into this Contract, Contractor offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. § 15) or under the Cartwright Act (Business and Professions Code Section 16700 et seq.) arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and become effective at the time City tenders final payment to Contractor without further acknowledgment by the parties.

6. Funding. Contractor and Owner do hereby acknowledge that this project will be partially or fully funded with Community Development Block Grant (CDBG) funds [24 CFR 570] and is therefore subject to applicable Federal procurement, labor, environmental, equal opportunity, and other regulations.

7. Prevailing Wages. City and Contractor acknowledge that the Project is a public work to which prevailing wages apply. Contractor shall comply with the Davis -Bacon Fair Labor Standards Act (40 USC a-276, a-5) and the implementation regulations issued pursuant thereto (29 CFR Section 1, 5) and any amendments thereof. Pursuant to the said regulations. Contractor shall comply with the U.S. Department of Housing and Urban Development’s Federal Labor

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Standards Provisions (HUD 4010).

Contractor acknowledges that work under this contract is subject to the payment of prevailing wages pursuant to Section 1770 and 1773 et seq. of the Labor Code of the State of California, the Director of Industrial Relations (State Prevailing Wages), and the U.S. Department of Housing and Urban Development’s Federal Labor Standards Provisions (Davis -Bacon Act Prevailing Wages). The Contractor to whom the contract is awarded, and all subcontractors under him, shall pay the higher of the Federal or State prevailing wage rate for any given classification employed in the performance of this contract.

Contractor acknowledges that the applicable Wage Determination for this project is:

General Decision Number: CA20220025
Modification Number: 12
Date: 10/07/2022

8. Workers’ Compensation. Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of Labor Code Section 1861, by signing this Contract , the Contractor certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self - insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the Work of this Contract.”

9. Section 3 Compliance. The Contractor hereby acknowledges that this federally -funded project is subject to Section 3 of the Housing and Urban Development Act of 1968 [12 U.S.C. 1701u and 24 CFR Part 135] and agrees to the following:

A. The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD Assistance for housing.

B. The parties to this contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 CFR 570, and all applicable rules and orders of the Department issued hereunder prior to the execution of this contract. The parties to this contract certify and agree that they are under no contractual or other disability which would prevent them from complying with these requirements.

C. The contractor will send to each labor organization, or representative or workers, with which he has collective bargaining agreement or other contract, or understanding, if any, a notice advising the said labor organization or workers; representative of his commitments under this Section 3 Clause and shall post copies of the notice in a conspicuous place available to employees and applicants for employment or training.

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D. The contractor will include this Section 3 Clause in every sub-tier contract for work in connection with the project and will, at the direction of the applicant for, or recipient of, the Federal financial assistance, take appropriate action pursuant to the sub- tier contract upon finding that the subcontractor is in violation of the regulations issued by the Secretary of Housing, and Urban Development, 24 CFR 570. The contractor w ill not enter into any sub- tier contract with any subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR 570 and will not let any subcontract unless the subcontractor has first provided it wit h a preliminary statement of ability to comply with the requirements of these regulations.

E. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR 570, and all applicable rules and orders of the Department issued thereunder prior t o the execution of the contract, shall be a condition of the Federal financial assistance provided to the project binding upon the applicant or recipient for such assistance, its successors, and assigns. Failure to fulfill these requirements shall subject the applicant or recipient, its contractors and subcontractors, its successors, and assigns to those sanctions specified by the grant or loan agreement or contract through which Federal assistance is provided, and to such sanctions as are specified by 24 CFR 135.

F. All contractors and their subcontractors shall include as part of their bid proposal a copy of their Section 3 Affirmative Action Plan. The Plan should include the following:
a. A preliminary statement of workforce needs (skilled, semi-skilled, unskilled labor and trainees by category).
b. Goals (in percentage) relative to utilization of lower income persons in project area. c. Goals relative to the project dollar amount of subcontractors to be awarded to project area business.

10. Additional Federal Requirements. Whereas, the work under this Agreement is subject to applicable Federal, State, and local laws and regulations, including but not limited to the regulations pertaining to the Community Development Block Grant program ( 24 CFR Part 570) and the Uniform Administrative Requirement, Cost Principles, and Audit Requirements for Federal Awards (2 CFR Part 200). Contractor, sub-contractors, Consultants, and sub-consultants agree to comply with, and are subject to, all applicable requirements as follows:

A. Equal Employment Opportunity - Compliance with Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity", as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). The Contractor/Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. Contractor/Consultant will ensure that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. The Contractor/Consultant will take affirmative action to ensure that applicants are employed and the employees are treated during employment, without regard to their race color, religion, sex, or national origin. Such actions shall include, but are not limited to, the following: employment, up- grading, demotion, or transfer; recruitment or recruitment advertising; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor/Consultant agrees to post in a conspicuous place, available to employees

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and applicants for employment, notices setting forth the provisions of this non- discriminating clause.

B. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c: All contracts and subgrants in excess of $2,000 for construction or repair awarded by recipients and subrecipients shall include a provision for compliance with the Copeland “Anti - Kickback” Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient shall report all suspected or reported violations to HUD.

C. Davis-Bacon Act, as amended (40 U.S.C. 276a to a- 7: When required by Federal program legislation, all construction contracts awarded by the recipients and subrecipients of more than $2000 shall include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to a -7) and as supplemented by Department of Labor regulations (29 CFR part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under this Act, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The recipient shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. The recipient shall report all suspected or reported violations to HUD.

D. Contract Work Hours and Safety Standards Act (40 U.S.C. 327 through 333: Where applicable, all contracts awarded by recipients in excess of $2000 for construction contracts and in excess of $2500 for other contracts that involve the employment of mechanics or laborers shall include a provision for compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327– 333), as supplemented by Department of Labor regulations (29 CFR part 5). Under Section 102 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard workweek of 40 hours. Work in excess of the standard workweek is permissible provided that the worker is compensated at a rate of not less than 1 1/2 times the basic rate of pay for all hours worked in excess of 40 hours in the workweek. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.

E. Rights to Inventions Made Under a Contract or Agreement — Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by HUD.

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F. Rights to Data and Copyrights – Contractors and consultants agree to comply with all applicable provisions pertaining to the use of data and copyrights pursuant to 48 CFR Part 27.4, Federal Acquisition Regulations (FAR).

G. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended—Contracts and subgrants of amounts in excess of $100,000 shall contain a provision that requires the recipient to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.). Violations shall be reported to HUD and the Regional Office of the Environmental Protection Agency (EPA).

H. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)— C ontractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying with non- Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier-to-tier up to the recipient.

I. Debarment and Suspension (E.O.s 12549 and 12689)—No cont ract shall be made to parties listed on the General Services Administration's List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O.s 12549 and 12689, “Debarment and Suspension,” as set forth at 24 CFR part 24. This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O. 12549. Contractors with awards that exceed the small purchase threshold shall provide the required certification regarding its exclusion status and that of its principal employees.

J. Drug-Free Workplace Requirements—The Drug- Free Workplace Act of 1988 (42 U.S.C. 701) requires grantees (including individuals) of federal agencies, as a prior condition of being awarded a grant, to certify that they will provide drug -free workplaces. Each potential recipient must certify that it will comply with drug-free workplace requirements in accordance with the Act and with HUD's rules at 24 CFR part 24, subpart F.

K. Access to Records and Records Retention: The Consultant or Contractor, and any sub-consultants or sub- contractors, shall allow all duly authorized Federal, State, and/or County officials or authorized representatives access to the work area, as well as all books, documents, materials, papers, and records of the Consultant or Contractor, and any sub-consultants or sub-contractors, that are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts, and transcriptions. The Consultant or Contractor, and any sub -consultants or sub- contractors, further agree to maintain and keep such books, documents, materials, papers, and records, on a current basis, recording all transactions pertaining to this agreement in a form in accordance with generally acceptable accounting principles.

All such books and records shall be retained for such periods of time as required by

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law, provided, however, notwithstanding any shorter periods of retention, all books, records, and supporting detail shall be retained for a period of at least four (4) years after the expiration of the term of this Agreement.

L. Federal Employee Benefit Clause: No member of or delegate to the congress of the United States, and no Resident Commissioner shall be admitted to any share or part of this agreement or to any benefit to arise from the same.

M. Energy Efficiency: Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94A 163, 89 Stat. 871).

N. Procurement of Recovered Materials (2 CFR 200.322.) A non-Federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

11. Titles. The titles used in this Contract are for convenience only and shall in no way define, limit or describe the scope or intent of this Contract or any part of it.

12. Authority. Any person executing this Contract on behalf of Contractor warrants and represents that he or she has the authority to execute this Contract on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations hereunder.

13. Entire Agreement . This Contract , i ncluding the Contract Documents and any other documents incorporated herein by specific reference, represents the entire and integrated agreement between City and Contractor. This Contract supersedes all prior oral or written negotiations, representations or agreements. This Contract may not be modified or amended, nor any provision or breach waived, except in a writing signed by both parties that expressly refers to this Contract.

14. Counterparts. This Contract may be executed in counterpart originals, duplicate originals, or both, each of which is deemed to be an original for all purposes.

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IN WITNESS WHEREOF, the parties hereto have exec uted this Contract the day and year first above written.

CITY OF INDIO
By:

Mayor
ATTEST: APPROVED AS TO FORM:

By: By:

City Clerk City Attorney

Dated:
(“CONTRACTOR”)

By:

By:

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City Council
January 18, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Timothy Wassil, Public Works Director
Subject: Professional Services Agreement with Dynamic Engineering Services, Inc. (DESI), amount an in not -to-Construction the $125,270.29 for exceed Management, Inspection, and Material Testing for the Traffic Signal Improvement Project (Project No. TS2003) and mak ing a determination that the action is exempt from further environmental review pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act.

RECOMMENDATION:

Approve the Professional Services Agreement with Dynamic Engineering Services, Inc. (DESI), in an amount not -to-exceed $125,270.29 for the Construction Management, Inspection, and Material Testing for the Traffic Signal Improvement Project, (Project No. TS2003) and making a determination that the action is exempt from further environmental review pursuant to Section 15301 (Existing Facilities) of the California Environmental Quality Act

SUMMARY:

On September 8, 2022, staff received two (2) proposals from qualified consulting firms to provide Construction Management, Inspection, and Material Testing services necessary for the construction phase of the Traffic Signal Improvement Project (Project No. TS2003). The evaluation committee selected Dynamic Engineering Services, Inc. (DESI) as the most qualified firm. Staff has negotiated a fair and reasonable fee with DESI and recommends awarding the Professional Services Agreement.

BACKGROUND INFORMATION:

In 2018, the City received approximately $1.4 Million dollars in federal grant funding from Cycle 9 of the Highway Safety Improvements Program (HSIP) for traffic signal improvements (Project). The traffic signal improvements include installation of dil emma zone detection system, new traffic signal controllers to provide compatibility for new equipment, adding street lighting, and traffic control. It is located at the following fifteen (15) intersections throughout the City of Indio:

1. Clinton Street and Fred Waring Drive;

2. Jefferson Street and Indio Boulevard;

3. Adams Street and Varner Road;

4. Clinton Street and Miles Avenue;

5. Jefferson Street and Fred Waring Drive;

6. Jefferson Street and Varner Road;

7. Indio Boulevard and Avenue 48,

8. Jefferson Street and Sun City Boulevard;
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9. Jackson Street and Avenue 42;

10. Madison Street and Fred Waring Drive;

11. Jefferson Street and Avenue 40;

12. Jefferson Street and Miles Avenue;

13. Jefferson Street and Westward Ho Drive;

14. Jefferson Street and Avenue 42/Country Club Drive; and

15. Jackson Street and Showcase Parkway.

On July 14, 2022, the State of California, Department of Transportation (Caltrans) authorized the City to bid the Project. The City prepared and posted a Request for Proposals (RFP) on the City’s website starting August 4, 2022, and received proposals from two (2) qualified firms on September 8, 2022.

A summary of the interested firms is included below.

Proposer Name: Location:

Dynamic Engineering Services, Inc. (DESI) Corona, CA
KOA Corporation Ontario, CA

An evaluation committee comprised of three (3) members reviewed the proposals based on the selection criteria published in the RFP, and selected DESI as the most qualified consultant to commence negotiations with. Staff negotiated a fair and reasonable pr ice with DESI to deliver the agreed scope of work during the duration of construction, which is expected to last 60 working days.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$125,270.29 In current year budget: Yes
Current FY General
Fund Impact:
$0 Budget adjustment: No
Next FY Financial
Impact:
$0 Strategic Objective:

Source of funds: Highway Safety Improvements
Program Fund-Org-Object
Reference:
300-523006

Additional Financial Details:

The total cost of the Professional Services Agreement with DESI is expected to be $125,270.29. The City has received federal funding from the HSIP program for these construction management services.

The program will reimburse the City one hundred percent (100%) of the construction management cost.

ATTACHMENTS:

Attachment 1
Attachment 2

APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 10 Jan 2023

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Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 12 Jan 2023 Bryan H. Montgomery, City Manager Approved - 12 Jan 2023

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PROFESSIONAL SERVICES AGREEMENT
WITH DYNAMIC ENGINEERING SERVICES, INC.

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AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into on this 18th day of Ja nuary, 2023, by and between the City of Indio, a California municipal Corporation (“City”) and Dynamic Engineering Services, Inc., Corona, California (“Consultant”).

RECITALS
A.

City desires to obtain services that may be reasonably described as follows:

Constructio
n Management, Inspection, and Material Testing for t he Traffic Signal Improvement Project, Project No. TS2003.

B.

Consultant represents that it is qualified by virtue of experience, training, education and expertise to provide these services and is able to perform the Scope of Work.

NOW, THEREFORE, in consideration of the mutual promises contain ed herein, the parties agree as follows:

Section 1. Consultant’s Scope of Work. Consultant shall perform the Scope of Work described in Exhibit A ("Scope of Work"), attached to this Agreement and incorporated by this reference as though set forth in full, in a manner satisfa ctory to City and consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar conditions.

Section 2. Term of Agreement. This Agreement shall commence on January 18, 2023, contingent upon approval by the City Council, and the Con sultant shall commence work after a written notice to proceed is issued by the City’s Contr act Manager. This Agreement shall terminate on January 18, 2028, unless sooner terminated by the City.

Section 3.

Time of Performance. Consultant shall complete all services required hereunder as and when directed by City as set forth in Exhibit C (“Time of Performance”). City, however, in its sole discretion may extend the time for performance of any services.

Section 4. Compensation.
(a)
The method of payment for the services provided under this Agreement shall be by
actual cost plus a fixed fee. City agrees to compensate Consultant, and Consultant agrees to accept in full satisfaction for the services required by thi s Agreement, One Hundred Twenty- Five Thousand and Two Hundred-Seventy Dollars and Twenty-Nine C ents ($125,270.29), as more particularly described in Exhibit B (“Consideration”). Said Consideration shall constitute reimbursement of Contactor’s fee for the services as well as the actual cost of any staff time, other direct or indirect costs or fees, including t he work of employees, consultants and subcontractors, equipment, materials, and supplies necessar y to provide the service (including all labor, materials, delivery, tax, assembly, and installation, as applicable). (b)
Unless expressly provided for in Exhibit B, Consultant shal l not be entitled to reimbursement for any expenses. Any expenses incurred by Consultant which are not expressly authorized by this Agreement will not be reimbursed by City.

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(c) In the case of a change in the scope of work or scope of th e project, such change may be requested by the City pursuant to an amendment to this A greement. Compensation for any such amendment shall be negotiated between the parties and the adjustment in the specified rates of compensation shall not be effective until au thorized by an amendment to this Agreement, which is thereafter approved by the City Council and issued by the City’s Contract Manager.

(d) Any work incurred by Consultant which is not expressly auth orized by this Agreement or any amendment to the Agreement will not be reimbursed by City. In addition, any work incurred by Consultant prior to receipt of the written not ice to proceed shall not be compensated.

Section 5. Method of Payment

(a) The method of payment for this Agreement will be based on a ctual cost plus a fixed fee. The City will reimburse Consultant for actual costs (including labor costs, employee benefits, travel, equipment rental costs, overhead and other di rect costs) incurred by Consultant in performance of the work. Consultant will not be reimbursed f or actual costs that exceed the estimated wage rates, employee benefits, travel, equipment rent al, overhead, and other estimated costs set forth in the approved Consultant’s Cost Pro posal, unless additional reimbursement is provided for by Agreement amendment. In no ev ent, will Consultant be reimbursed for overhead costs at a rate that exceeds the City’s approved overhead rate set forth in the Cost Proposal. In the event, that the City determ ines that a change to the work from that specified in the Cost Proposal and Agreement is required, the Agreement time or actual costs reimbursable by the City shall be adjusted by Agreement a mendment to accommodate the changed work. The maximum total cost as specified in Paragr aph “I” of this Section shall not be exceeded, unless authorized by Agreement amendment.

(b) The indirect cost rate established for this Agreement is ex tended through the duration of this specific Agreement. Consultant’s agreement to the extension of the 1-year applicable period shall not be a condition or qualification to be considered for the work or Agreement award.

(c) In addition to the allowable incurred costs, the City will pay Consultant a fixed fee of Ten Thousand and Four Hundred Seventy-Nine Dollars and Twelv e Cents ($10,479.12). The fixed fee is nonadjustable for the term of the Agreement, excep t in the event of a significant change in the scope of work and such adjustment is made by Agreement amendment.

(d) Reimbursement for transportation and subsistence costs shal l not exceed the rates specified in the approved Cost Proposal.

(e) When milestone cost estimates are included in the approved Cost Proposal, Consultant shall obtain prior written approval for a revised mi lestone cost estimate from the Contract Administrator before exceeding such cost estimate.

(f) Progress payments will be made monthly in arrears based on services provided and allowable incurred costs. A pro rata portion of Consultant’ s fixed fee will be included in the monthly progress payments. If Consultant fails to submit the r equired deliverable items according to Exhibit A, the City shall have the right to delay payment or terminate this Agreement.

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(g) No payment will be made prior to approval of any work, nor for any work performed prior to approval of this Agreement.

(h) Consultant will be reimbursed promptly according to Califor nia Regulations upon receipt by City’s Contract Administrator of itemized invoices i n duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the per f o r m a n c e o f w o r k f o r w h i c h Consultant is billing. Invoices shall detail the work performe d on each milestone and each project as applicable. Invoices shall follow the format stipula ted for the approved Cost Proposal and shall reference this Agreement number and project title. F inal invoice must contain the final cost and all credits due the City including any equipment purch ased under the provisions of Section 29 Equipment Purchase. The final invoice should be subm itted within sixty (60) calendar days after completion of Consultant’s work. Invoices shall be mailed to City’s Contract Administrator at the following address:

Director of Public Works
100 Civic Center Mall
Indio, California 92201
Fax: (760) 342-6597
Email: [email protected]

(i) The total amount payable by the City including the fixed fe e shall not exceed $125,270.29.

(j) For personnel subject to prevailing wage rates as described in the California Labor Code, all salary increases, which are the direct result o f changes in the prevailing wage rates are reimbursable.

Section 6. Independent Consultant. The parties agree, understand and acknowledge that Consultant is not an employee of the City, but is solely an independent Consultant. Consultant expressly acknowledges and agrees that City has no obligation to pay or withhold state or federal taxes or to provide workers’ compe nsation or unemployment insurance or other employee benefits and that any person employ ed by Consultant shall not be in any way an employee of the City. As such, Consultant shall have the sole legal responsibility to remit all federal and state income and social security taxes and to provide for his/her own workers compensation and unemployment insurance and that of his /her employees or subcontractors. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as otherwis e provided herein. Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of City.

Section 7. Assignment. This Agreement shall not be assigned in whole or in part, by Consultant without the prior written approval of City. Any a ttempt by Consultant to so assign this Agreement or any rights, duties or obligations arising her eunder shall be void and of no effect.

Section 8. Responsible Principal(s).

(a) Consultant’s responsible principal, Chia-Chi Wang, P.E. , shall be principally responsible for Consultant’s obligations under this Agreement a nd shall serve as principal liaison between City and Consultant and shall be referred to as the Project Manager. There

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shall be no change in Consultant’s Project Manager or key membe rs of the project team as listed in Exhibit A without prior written consent of City.

(b) City’s responsible principal shall be Juan Raya, P.E., City Engineer , who shall administer the terms of the Agreement on behalf of City and sha ll be referred to herein as the Contract Manager or Contract Administrator.

Section 9. Personnel. Consultant represents that it has, or shall secure at its own expense, all personnel required to perform Consultant’s Scope o f Work under this Agreement.

All personnel engaged in the work shall be qualified to perform such Scope of Work.

Section 10. Permits and Licenses. Consultant shall obtain and maintain during the Agreement term all necessary licenses, permits and certificates required by law for the provision of services under this Agreement, including a business license.

Section 11. Compliance with Law. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and loc al government applicable to the scope of services under this Agreement.

Section 12. Insurance.

(a) Consultant shall at all times during the term of this Agree ment carry, maintain, and keep in full force and effect, insurance as follows:

(1) A policy or policies of Comprehensive General Liability Ins urance, with minimum limits of One Million Dollars ($1,000,000) for each occurrence and Two Million Dollars ($2,000,000) general aggregate, against any personal injury, de ath, loss or damage resulting from the wrongful or negligent acts by Consultant.

(2) A policy or policies of Comprehensive Vehicle Liability Ins urance covering personal injury and property damage, with minimum limits of One Million Dollars ($1,000,000) per occurrence combined single limit, covering any vehicle util ized by Consultant in performing the Scope of Work required by this Agreement.

The insurance policy shall contain a severability
of interest clause providing that the coverage shall be primary for losses arising out of Consultant's performance hereunder and neither City nor its ins urers shall be required to contribute to any such loss.

(3) Workers' compensation insurance as required by the State of California.

(4) If this box is checked, a policy or policies of Professional L iability Insurance (errors and omissions) with minimum limits of One Mil lion Dollars ($1,000,000) per claim and in the aggregate. Any deductibles or self-insured ret entions attached to such policy or policies must be declared to and be approved by City. Further, Consultant agrees to maintain in full force and affect such insurance for one year after perform ance of work under this Agreement is completed.

(b) Consultant shall require each of its subcontractors, if any , to maintain insurance coverage which meets all of the requirements of this Agreement.

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(c) The City’s Risk Manager may, in writing, amend and/or waive the insurance provisions set forth in paragraph (a) herein. In such case, th e Consultant shall comply with the insurance provisions required by the City’s Risk Manager.

(d) The policy or polices required by this Agreement shall be i ssued by an insurer admitted in the State of California and with a rating of at lea st a A-:VI in the latest edition of Best's Insurance Guide or by an insurer acceptable to the City’s Risk Manager.

(e) Consultant agrees that if it does not keep the aforesaid in surance in full force and effect City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may take out the necessary insurance and pay, at Consultant's expense, the premium thereon.

(f) At all times during the term of this Agreement, Consultant shall maintain on file with the City Clerk a certificate or certificates of insurance on the form approved by the City’s Risk Manager, showing that the aforesaid policies are in effect in the required amounts.

Consultant shall, prior to commencement of work under this Agre ement, file with the City Clerk such certificate or certificates. The general liability insurance and vehicle insurance shall contain an endorsement naming the City as an additional insured. All of the policies required under this Agreement shall contain an endorsement providing that the polic ies cannot be canceled or reduced except on thirty (30) days prior written notice to City , and specifically stating that the coverage contained in the policies affords insurance pursuant to the terms and conditions as set forth in this Agreement.

(g) The insurance provided by Consultant shall be primary to an y coverage available to City. The policies of insurance required by this Agreement s hall include provisions for waiver of subrogation.

(h) Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, Consultant shall either reduce or eliminate the deductibles or self- insured retentions with respect to City, or Consultant shall pr ocure a bond guaranteeing payment of losses and expenses.

Section 13. Indemnity.

(a) Indemnity for Design Professional Services. If Consultant is considered a “design professional” as that term is defined in Civil Code Sec tion 2782.8 and solely in connection with its design professional services, Consultant sh all hold harmless and indemnify City, and its elected officials, officers, employees, servants, designated volunteers, and those City agents serving as independent Consultants in the role of C ity officials (collectively, “Indemnitees”), with respect to any and all claims, demands, da mages, liabilities, losses, costs or expenses, including reimbursement of attorneys’ fees and cos ts of defense (collectively, “Claims” hereinafter), including but not limited to Claims rela ting to death or injury to any person and injury to any property, which arise out of, pertain to, or relate to in whole or in part to the negligence, recklessness, or willful misconduct of Consultant o r any of its officers, employees, subcontractors, or agents in the performance of its design prof essional services under this Agreement.

(b) Other Indemnities. In connection with any and all claims, demands, damages, liabilities, losses, costs or expenses, including attorneys’ fe es and costs of defense (collectively, “Damages” hereinafter) not covered by Section 13(a), Consultant shall defend, hold harmless

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and indemnify the Indemnitees with respect to any and all Damages, including but not limited to, Damages relating to death or injury to any person and injury to any property, which arise out of, pertain to, or relate to the acts or omissions of Consultant or any of its officers, employees, subcontractors, or agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages, at torneys’ fees, and other related costs and expenses. With respect such Claims, Consultant shall defend City, with counsel of City’s choice, at Consultant’s own cost, expense, and risk and shall pay and satisfy any judgment, award, or decree that may be rendered against City. Consultant shall reimburse City for any and all legal expenses and costs actually incurred by e ach of them in connection therewith or in enforcing the indemnity herein provided. Consu ltant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant or City. All duties of Consultant under this Section shall survive termination of this Agreement.

Section 14. Termination.

(a) City shall have the right to terminate this Agreement for a ny reason or for no reason upon thirty (30) calendar days' written notice to Consul tant with the reasons for termination stated in the notice. Consultant agrees to cease a ll work under this Agreement on or before the effective date of such notice. In the event such termination is for cause, the Consultant shall have the opportunity to cure such cause within the notice period and such termination shall only take effect if the Consultant failed to cure such cause.

(b) The City may terminate this Agreement with Consultant shoul d Consultant fail to perform the covenants herein contained at the time and in the m anner herein provided. In the event of such termination, City may proceed with the work in an y manner deemed proper by the City. If City terminates this Agreement with Consultant, City shall pay Consultant the sum due to Consultant under this Agreement prior to termination, unless the cost of completions to City exceeds the funds remaining in the Agreement. In which case, t he overage shall be deducted from any sum due Consultant under this Agreement and the balanc e, if any, shall be paid to Consultant upon demand.

(c) In the event of termination or cancellation of this Agreeme nt by City, due to no fault or failure of performance by Consultant, Consultant shall be paid based on the percentage of work satisfactorily performed at the time of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement. Consult ant shall have no other claim against City by reason of such termination, including any claim for compensation that would exceed the maximum Consideration set forth herein.

(d) Upon receipt of a termination notice, Consultant shall prom ptly deliver all data, reports, estimates, summaries, and such other information and m aterials as may have been accumulated by Consultant in performing the services under this Agreement to City, whether completed or in progress.

(e) Notwithstanding any provisions of this Agreement, Consultan t shall not be relieved of liability to City for damages sustained by City by virtue of any breach of this Agreement by Consultant, and City may withhold any payments due to Consultant until such time as the exact amount of damages, if any, due City from Consultant is determined.

(f) City may temporarily suspend this Agreement, at no addition al cost to City, provided that Consultant is given written notice of temporary s uspension. If City gives such

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notice of temporary suspension, Consultant shall immediately su spend its activities under this Agreement. A temporary suspension may be issued concurrent with the notice of termination.

Section 15. City’s Responsibility. City shall provide Consultant with all pertinent data, documents, and other requested information as is availabl e for the proper performance of Consultant’s Scope of Work.

Section 16. Non-Liability of Officials and Employees of the Cit y. No official or employee of City shall be personally liable for any default or liability under this Agreement.

Section 17. Changes in the Scope of Work. City shall have the right to order, in writing, changes in the Scope of Work or the services to be per formed. Any changes in the Scope of Work requested by Consultant must be made in writing and approved by both parties.

Section 18. Notice. Any notices, bills, invoices, etc. required by this Agreement shall be deemed received on (a) the day of delivery if delivered by h and during the receiving party's regular business hours or by facsimile before or during the rec eiving party's regular business hours; or (b) on the second business day following deposit in t he United States mail, postage prepaid to the addresses set forth below, or to such other addr esses as the parties may, from time to time, designate in writing pursuant to this section.

If to City:

City Manager
100 Civic Center Mall
P.O. Drawer 1788
Indio, California, 92201
Fax: (760) 342-6597

If to Consultant:

Chia-Chi Wang
Dynamic Engineering Services, Inc.
6 Latitude Way, Suite 112
Corona, California 92881
Fax: (951) 471-8892

Section 19. Consultant Reports/Meetings.

(a) The Consultant shall submit progress reports at least once a month. The report should be sufficiently detailed for the Contract Manager to det ermine, if the Consultant is performing to expectations, or is on schedule; to provide commu nication of interim findings, and to sufficiently address any difficulties or special problems en countered, so remedies can be developed.

(b) The Consultant’s Project Manager shall meet with the City’s Contract Manager, as needed, to discuss progress on this Agreement.

(c) If requested by City, Consultant shall document the results of the work under this agreement to the satisfaction of the City, and if applicable, t he State of California and the Federal Highway Administration. This may include but is not li mited to, preparation of progress and final report, plans, specifications and estimates or simila r evidence of attainment of this Agreement’s objectives as set forth in Exhibit A.

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(d) Consultant or appropriate designee of Consultant shall sign all plans, specifications, estimates (PS&E) and engineering data furnished by him/her, and where appropriate, indicate his/her California registration number.

Section 20. Funding Requirements.

(a) It is mutually understood between the parties that this Agr eement may have been written before ascertaining the availability of funds or approp riation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal d elays that would occur if the agreement were executed after that determination was made.

(b) It is mutually agreed that if sufficient funds are not appr opriated, this Agreement may be amended to reflect any reduction in funds.

(c) In addition, this Agreement is subject to any additional re strictions, limitations, conditions, or any statute enacted by the Congress, State Legis lature, or the City Council of the City that may affect the provisions, terms, or funding of this Agreement in any manner.

(d) The parties agree that the City has the option by mutual ag reement to amend this agreement to reflect any reduction of funds or void the Agreeme nt under the termination provisions herein.

Section 21. Modification.

(a) This Agreement constitutes the entire agreement between the parties and supersedes any other agreements, oral or written. No promises, other than those included in this Agreement, shall be valid. This Agreement may be modified only by a written agreement executed by City and Consultant.

(b) Consultant shall commence work covered by an amendment only after the amendment is executed and a notification to proceed has been is sued by the City’s Contract Manager.

(c) There shall be no change in Consultant’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this Agreement without prior written approval by the City’s Contract Administrator.

Section 22. Disadvantaged Business Enterprises (DBE) Participat ion.

(a) Consultant, and all subconsultants shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the Agree ment (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, The City s hows a contract goal for DBEs.

CONSULTANT shall make work available to DBEs and select work pa rts consistent with available DBE subconsultants and suppliers.

Consultant shall meet the DBE goal shown in this section or dem onstrate that they made adequate good faith efforts to meet this goal. It is Consultant ’s responsibility to verify at the date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most sp ecific available North American Industry Classification System (NAICS) codes or work c ode applicable to the type of

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work the firm will perform on the contract. Additional, the Co nsultant is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found here: https://dot.ca.gov/programs/civil-rights/dbe-search.

All DBE participation will count toward the California Departme nt of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or su pplies Consultant purchases from DBEs counts towards the goal in the following manner:

 100 percent counts if the materials or supplies are obtained f rom a DBE manufacturer.
 60 percent counts if the materials or supplies are purchased f rom a DBE regular dealer.
 Only fees, commissions, and charges for assistance in the proc urement and delivery of materials or supplies count if obtained from a DBE that is n either a manufacturer nor regular dealer. 49CFR26.55 defines "manufacturer" and "regular dealer."

This Agreement is subject to 49 CFR Part 26 entitled “Participa tion by Disadvantaged Business Enterprises in Department of Transportation Financial Assistanc e Programs”. Consultants who enter into a federally-funded agreement will assist the City in a good faith effort to achieve California's statewide overall DBE goal.

(b) The goal for DBE participation for this Agreement is 7%. Participation by DBE Consultant or subconsultants shall be in accordance with in formation contained in Exhibit 10-O2: Consultant Contract DBE Commitment attached hereto in Exhibit C and incorporated as part of the Agreement. If a DBE subconsultant is unable to perf orm, Consultant must make a good faith effort to replace him/her with another DBE subconsul tant, if the goal is not otherwise met.

(c) Consultant can meet the DBE participation goal by either do cumenting commitments to DBEs to meet the Agreement goal, or by documenti ng adequate good faith efforts to meet the Agreement goal. An adequate good faith eff ort means that the Consultant must show that it took all necessary and reasonable steps to ac hieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could r easonably be expected to meet the DBE goal. If Consultant has not met the DBE goal, complete and submit Exhibit 15-H: DBE Information – Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR Part 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.

(d) Under 49 CFR 26.13(b): “CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.”

Failure by the Consultant to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreemen t or such other remedy as the recipient deems appropriate, which may include, but is not limited to:

 Withholding monthly progress payments;
 Assessing sanctions;
 Liquidated damages; and/or
 Disqualifying Consultant from future proposing as non-responsi ble

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(e) Consultant shall utilize the specific DBEs listed to perfor m the work and supply the materials for which each is listed unless Consultant or DBE subconsultant obtains the City’s written consent. Consultant shall not terminate or substitute a listed DBE for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the City. Unless the City’s consent is provi ded, the Consultant shall not be entitled to any payment for work or material unless it is perfo rmed or supplied by the listed DBE on the Exhibit 10-02 Consultant Contract DBE Commitment form.

The City authorizes a request to use other forces or sources of materials if Consultant shows any of the following justifications:

 Listed DBE fails or refuses to execute a written contract base d on plans and specifications for the project.
 The City stipulated that a bond is a condition of executing th e subcontract and the listed DBE fails to meet the City’s bond requirements.
 Work requires a consultant's license and listed DBE does not h ave a valid license under Contractors License Law.
 Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a D BE if the failure or refusal is a result of bad faith or discrimination).
 Listed DBE's work is unsatisfactory and not in compliance with the contract.  Listed DBE is ineligible to work on the project because of sus pension or debarment.  Listed DBE becomes bankrupt or insolvent.
 Listed DBE voluntarily withdraws with written notice from the Contract  Listed DBE is ineligible to receive credit for the type of wor k required.  Listed DBE owner dies or becomes disabled resulting in the ina bility to perform the work on the Contract.
 The City determines other documented good cause.

Consultant shall notify the original DBE of the intent to use o ther forces or material sources and provide the reasons and provide the DBE with 5 days to respond to the notice and advise Consultant and the City of the reasons why the use of other for ces or sources of materials should not occur.

Consultant’s request to use other forces or material sources must include:

 One or more of the reasons listed in the preceding paragraph.  Notices from CONSULTANT to the DBE regarding the request.  Notices from the DBEs to CONSULTANT regarding the request.

If a listed DBE is terminated or substituted, Consultant must m ake good faith efforts to find another DBE to substitute for the original DBE. The substitute DBE must perform at least the same amount of work as the original DBE under the Agreement to the extent needed to meet or exceed the DBE goal.

(f) The City’s DBE program must include a monitoring and enforc ement mechanism to ensure that DBE commitments reconcile to DBE utilization.

The City shall request Consultant to: