Agenda — Indio City Council, August 16, 2023 (part 3 of 8)

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 257 of 959 Comgensalion
Exgenses
AdditionalServices
Compensation.A. .AsfullcompensationforServicessatisfactorilyrendered,CityshallpayConsultant$157,242asmoreparticularlydescribedinExhibitA("Consideration").SaidConsiderationshallconstitutereimbursementofContactor'sfeefortheServicesaswellastheactualcostofanystafftime,otherdirectorindirectcostsorfees,includingtheworkofemployees,consultantsandsubcontractors,equipment,materials,andsuppliesnecessarytoprovidetheservice(includingalllabor,materials,delivery,tax,assembly,andinstallation,asapplicable).InnoeventshalltheConsultantbepaidmorethan$157,242(whichincludesexpensesandadditionalservices(ifany)duringthetermofthisAgreement.B. .CityshallreimburseConsultantforthoseexpensesexpresslysetforthinExhibitA.AnyexpensesincurredbyConsultantwhicharenotexpresslyauthorizedbythisAgreementwillnotbereimbursedbyCity.C. .CityshallnotallowanyclaimsforadditionalServicesperformedbyConsultant,unlesstheCityManagerorCityRepresentative,asapplicable,andtheConsultantRepresentativeauthorizetheadditionalServicesinwritingpriortoConsultant'sperformanceoftheadditionalServicesorincurrenceofadditionalexpenses.AnyadditionalServicesorexpensesauthorizedbytheCityManagerorCityRepresentativeshallbecompensatedattheratessetforthinExhibitA,or,ifnotspecified,ataratemutuallyagreedtobytheParties.CityshallmakepaymentforadditionalServicesandexpensesinaccordancewithSection4ofthisAgreement.4.MethodofPayment.A.Invoices.ConsultantshallsubmittoCityaninvoice,onamonthlybasisorasotherwisesetforthinExhibitA,foractualServicesperformedpursuanttothisAgreement.EachinvoiceshallitemizetheServicesrenderedduringthebillingperiod,hourlyratescharged,ifapplicable,andtheamountdue.CityshallrevieweachinvoiceandnotifyConsultantinwritingwithinthirtybusinessdaysofreceiptofanydisputedinvoiceamounts.B.Payment.Cityshallpayallundisputedinvoiceamountswithin30businessdaysafterreceipt.Citydoesnotpayinterestonpastdueamounts.Cityshallnotwithholdfederalpayroll,statepayrollorothertaxes,orothersimilardeductions,frompaymentsmadetoConsultant.C.AuditofRecords.Consultantshallmakeallrecords,invoices,timecards,costcontrolsheetsandotherrecordsmaintainedbyConsultantinconnectionwiththisAgreementavailableduringConsultant'sregularworkinghourstoCityforreviewandauditbyCity.5.IndependentContractor.A.ConsultantisandshallatalltimesremainastoCityawhollyindependentcontractor.PersonnelperformingtheServicesonbehalfofConsultantshallatalltimesbeunderConsu|tant’sexclusivedirectionandcontrol.NeithertheCity,noranyofitsofficers,employees,oragentsshallhavecontrolovertheconductofConsultant,oritsofficers,employees,oragents,exceptassetforthinthisAgreement.Consultantshallnotatanytimeorinanymannerrepresentthatitoranyofitsofficers,employees,oragentsareinanymannerofficers,employees,oragents -2-121a3.ooo1/21731594

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 258 of 959 .-J'I.r"I"#-F--'11-ELIoftheCity.Consultantshallhavenopowertoincuranydebt,obligation,orliabilityonbehalfofCityorbindtheCityinanymanner.B.ConsultantexpresslyacknowledgesandagreesthatCityhasnoobligationtopayorwithholdstateorfederaltaxesortoprovideworkers’compensationorunemploymentinsuranceorotheremployeebenefitsandthatanypersonemployedbyConsultantshallnotbeinanywayanemployeeoftheCity.Consultantshallhavethesolelegalresponsibilitytoremitallfederalandstateincomeandsocialsecuritytaxesandtoprovideforhis/herownworkerscompensationandunemploymentinsuranceandthatofhis/heremployeesorsubcontractors.CityshallnotbeliableforcompensationorindemnificationtoConsultantforinjuryorsicknessarisingoutofperformingserviceshereunder.6.ResponsiblePrincipal(s).Consultant’sresponsibleprincipalisasfollows:GregM.ChandrashallbeprincipallyresponsibleforConsultant'sobligationsunderthisAgreementandshallserveasprincipalliaisonbetweenCityandConsultant;City’sResponsiblePrincipalshallbeScottTrujillo,whoshalladministerthetermsoftheAgreementonbehalfofCity.7.Releaseofinformation.A.Consultantcovenantsthatalldata,reports,documents,studies,drawings,plans,maps,models,photographs,discussion,orotherinformation(collectively“DataandDocuments”)developedbyConsultantintheperformanceofthisAgreementand/orinformationreceivedbyConsultantorprovidedfortheperformanceofthisAgreementaredeemedconfidentialandshallnotbedisclosedorreleasedbyConsultantwithoutpriorwrittenauthorizationbyCity.Consultant,itsofficers,employees,agents,orsubcontractors,shallnotwithoutwrittenauthorizationfromtheCityManagerorunlessrequestedbytheCityManager,voluntarilyprovidedeclarations,lettersofsupport,testimonyatdepositions,responsetointerrogatories,orotherinformationconcerningtheworkperformedunderthisAgreementorrelatingtoanyprojectorpropertylocatedwithintheCity.Responsetoasubpoenaorcourtordershallnotbeconsidered"voluntary"providedConsultantgivetheCitynoticeofsuchcourtorderorsubpoena.B.ConsultantshallpromptlynotifytheCityshouldConsultant,itsofficers,employees,agents,orsubcontractorsbeservedwithanysummons,complaint,subpoena,noticeofdeposition,requestfordocuments,interrogatories,requestforadmissions,orotherdiscoveryrequest("Discovery”),courtorder,orsubpoenafromanypersonorpartyregardingthisAgreementandtheworkperformedthereunderorwithrespecttoanyprojectorpropertylocatedwithintheCity.Citymay,buthasnoobligationto,representConsultantand/orbepresentatanydeposition,hearing,orsimilarproceeding.ConsultantagreestocooperatefullywithCityandtoprovideCitytheopportunitytoreviewanyresponsetodiscoveryrequestsprovidedbyConsultant.However,City’srighttoreviewanysuchresponsedoesnotimplyormeantherightbyCitytocontrol,direct,orrewritesaidresponse.8.OwnershipofDocuments.AllDataandDocumentsrequiredtobefurnishedtoCityinconnectionwiththisAgreementshallbecomeCity’sproperty,andCitymayusealloranyportionoftheDataandDocumentssubmittedbyConsultantasCitydeemsappropriate.Uponcompletionof,orintheeventofterminationorsuspensionofthisAgreement,alloriginalDataandDocuments,includingcomputerfilescontainingdatageneratedfortheServices,surveys,notes,andotherdocumentspreparedinthecourseofprovidingtheServices,whetherindraftorfinalform,shallbeprovidedtotheCitywithinfivedaysofCity’swrittenrequestandshallbecomeCity'ssolepropertyandmaybeused,reusedorothenivisedisposedofbyCitywithoutConsultant’spermission.Withrespecttocomputerfiles,ConsultantshallmakeavailabletotheCity,atthe-3.121e3.ooo1/21731591

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 259 of 959 Consultant'sofficeanduponreasonablewrittenrequestbytheCity,thenecessarycomputersoftwareandhardwareforpurposesofaccessing,compiling,transferring,andprintingcomputerfiles.Consultantmaytakeandretaincopiesofthewrittenproductsasdesired,butthewrittenproductsshallnotbethesubjectofacopyrightapplicationbyConsultant.9.ConflictsofInterest.Consultantaffirmsthatitpresentlyhasnointerestandshallnotacquireanyinterest,directorindirect,whichmaybeaffectedbytheServices,orwhichwouldconflictinanymannerwiththeperformanceoftheServices.Consultantfurthercovenantsthat,inperformanceofthisAgreement,nopersonhavinganysuchinterestshallbeemployedbyit.Furthermore,Consultantshallavoidtheappearanceofhavinganyinterest,whichwouldconflictinanymannerwiththeperformanceoftheServices.ConsultantshallnotacceptanyemploymentorrepresentationduringthetermofthisAgreementwhichisormaylikelymakeConsultant"financiallyinterested"(asprovidedinCaliforniaGovernmentCode§§109Oand87100)inanydecisionmadebyCityonanymatterinconnectionwithwhichConsultanthasbeenretained.10.Indemnification.

A.Indemnification.Tothefullestextentpermittedbylaw,Consultantshall,atitssolecostandexpense,defend,holdharmlessandindemnifytheCityanditselectedofficials,officers,attorneys,agents,employees,designatedvolunteers,successors,assignsandthoseCityagentsservingasindependentConsultantsintheroleofCityofficials("“lndemnitees")fromandagainstanyandalldamages,costs,expenses,liabilities,claims,demands,causesofactionandlossesofanynaturewhatsoever,includingfeesofaccountants,attorneys,orotherprofessionalsandallcostsassociatedtherewithandthepaymentofallconsequentialdamagesandwhetherforpersonalorbodilyinjuryand/ordeath,propertydamage,oreconomicinjury(collectively"C|aims"),inlaworequity,whetheractual,allegedorthreatened,whichariseoutof,areclaimedtoariseoutof,pertainto,orrelatetotheactsoromissionsofConsultant,itsofficers,agents,servants,employees,subcontractors,materialmen,Consultantsortheirofficers,agents,servantsoremployees(oranyentityorindividualthatConsultantshallbearthelegalliabilitythereof)intheperformanceofthisAgreement,includingthelndemnitees’activeorpassivenegligence,exceptforClaimsarisingfromthesolenegligenceorwillfulmisconductofthelndemnitees,asdeterminedbyfinalarbitrationorcourtdecisionorbytheagreementoftheParties.ConsultantshalldefendthelndemniteesinanyactionoractionsfiledinconnectionwithanyClaimwithcounselofthelndemnitees’choice,andshallpayallcostsandexpenses,includingallattorneys’feesandexperts’costsactuallyincurredinconnectionwithsuchdefense.Consultantshallreimbursethelndemniteesforanyandalllegalexpensesandcostsincurredbythelndemniteesinconnectiontherewith.B.SubcontractorIndemnification.ConsultantshallobtainexecutedindemnityagreementswithprovisionsidenticaltothoseinthisSection10fromeachandeverysubcontractororanyotherpersonorentityinvolvedby,for,withoronbehalfofConsultantintheperformanceofthisAgreement.IfConsultantfailstoobtainsuchindemnities,Consultantshallbefullyresponsibleandindemnify,holdharmlessanddefendthelndemniteesfromandagainstanyandallClaimsinlaworequity,whetheractual,allegedorthreatened,whichariseoutof,areclaimedtoariseoutof,pertainto,orrelatetotheactsoromissionsofConsultant'ssubcontractor,itsofficers,agents,servants,employees,subcontractors,materialmen,Consultantsortheirofficers,agents,servantsoremployees(oranyentityorindividualthatConsultant'ssubcontractorshallbearthelegalliabilitythereof)intheperformanceofthisAgreement,includingthelndemnitees’activeorpassivenegligence,exceptforClaimsarisingfromthesolenegligenceor -4-

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 260 of 959 Accegtab?ityofInsurers
EvidenceofInsurance
AdditionalInsuredStatus
willfulmisconductofthelndemnitees,asdeterminedbyfinalarbitrationorcourtdecisionorbytheagreementoftheParties.11.Insurance.A.ConsultantshallatalltimesduringthetermofthisAgreementcarry,maintain,andkeepinfullforceandeffect,insuranceasfollows:1.CommercialGeneralLiabilityInsurance,withcoverageatleastasbroadasInsuranceServicesOfficeformCGO001,inanamountnotlessthan$1,000,000peroccurrence,$2,000,000generalaggregate,forbodilyinjury,personalinjury,andpropertydamage.Thepolicymustincludecontractualliabilitythathasnotbeenamended.AnyendorsementrestrictingstandardISO"insuredcontract"languagewillnotbeaccepted.IfConsultantisalimitedliabilitycompany,thecommercialgeneralliabilitycoverageshallbeamendedsothatConsultantanditsmanagers,affiliates,employees,agentsandotherpersonsnecessaryorincidentaltoitsoperationareinsured.2.AutomobileLiabilityInsuranceatleastasbroadasInsuranceServicesOfficeformCA0001coveringbodilyinjuryandpropertydamageforallactivitiesoftheConsultantarisingoutoforinconnectionwiththeServicestobeperformedunderthisAgreement,includingcoverageforanyowned,hired,non-ownedorrentedvehicles,inanamountnotlessthan$1,000,000combinedsinglelimitforeachaccident.3.Workers’CompensationInsuranceasrequiredbytheStateofCaliforniaandEmployer'sLiabilityInsurance(withlimitsofatleast$1,000,000).4.XIfthisboxischecked,ProfessionalLiabilityInsurance(errorsandomissions)thatcoverstheServicestobeperformedunderthisAgreement,intheminimumamountof$2,000,000perclaimandintheaggregate.Anypolicyinceptiondate,continuitydate,orretroactivedatemustbebeforetheeffectivedateofthisAgreement.Further,Consultantagreestomaintaincontinuouscoveragethroughaperiodnolessthanthree(3)yearsaftercompletionoftheServicesrequiredbythisAgreement.B. .AllinsurancepoliciesrequiredbythisAgreementshallbeissuedbyaninsurerauthorizedbytheStateofCaliforniatotransactbusinessofinsurancewitharatingofatleastaB+;Vl|inthelatesteditionofBest'sInsuranceGuideorbyaninsureracceptabletotheCity’sRiskManager.C. .ConsultantshallprovidecertificatesofinsurancetoCityasevidenceoftheinsurancecoveragerequiredherein,alongwithawaiverofsubrogationendorsementforworkers’compensation.InsurancecertificatesandendorsementsmustbeapprovedbytheCity'sRiskManagerpriortocommencementofperformance.CurrentcertificatesofinsuranceshallbekeptonfilewiththeCityClerkatalltimesduringthetermofthisAgreement.Cityreservestherighttorequirecomplete,certifiedcopiesofallrequiredinsurancepolicies,atanytime.D. . ThecommercialgeneralandautomobileliabilitypoliciesshallprovideorbeendorsedtoprovidethattheCityanditsofficers,officials,employees,andagents,andvolunteersshallbeadditionalinsuredsundersuchpolicies.Thisprovisionshallalsoapplytoanyexcess/umbrellaliabilitypolicies. 12183.000‘|/2173159.1

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 261 of 959 PrirnamandNon~Coniribuiing
SeifvinsuredRetentions
CancellationsorModificationstoCoverage
CityRemedyforNoncomgliance
disclosedCoverageLimitations
Segarationofinsureds
TimelyNoticeofClaims
AdditionalInsurance
E. .TheinsurancepoliciesprovidedbyConsultantshallapplyonaprimarynon—contributingbasisinrelationtoanyotherinsuranceorself-insuranceavailabletoCity.Anyinsuranceorself—insurancemaintainedbyCity,itsofficers,employees,agentsorvolunteers,shallbeinexcessofConsultant’sinsuranceandshallnotcontributewithit.F.Consultant'sWaiverofSubrogation.TheinsurancepoliciesprovidedbyConsultantshallnotprohibitConsultantandConsultantsemployees,agentsorsubcontractorsfromwaivingtherightofsubrogationpriortoaloss.ConsultantherebywaivesallrightsofsubrogationagainstCity.G. .Anyself-insuredretentionsmustbedeclaredtoandapprovedbytheCity’sRiskManager.TheCityreservestherighttorequirethatself-insuredretentionsbeeliminated,lowered,orreplacedbyadeductible.Self-insurancewillnotbeconsideredtocomplywiththesespecificationsunlessapprovedbytheCity’sRiskManager.H. .Consultantshallnotcancel,reduceorothen/visemodifytheinsurancepoliciesrequiredbythisSectionduringthetermofthisAgreement.ThecommercialgeneralandautomobileliabilitypoliciesrequiredunderthisAgreementshallbeendorsedtostatethatshouldtheissuinginsurercancelthepolicybeforetheexpirationdate,theissuinginsurerwillendeavortomail30days’priorwrittennoticetoCity.IfanyinsurancepolicyrequiredunderthisSectioniscanceledorreducedincoverageorlimits,Consultantshall,withintwobusinessdaysofnoticefromtheinsurer,phone,faxornotifyCityviacertifiedmail,returnreceiptrequested,ofthecancellationoforchangestothepolicy.I. .lfConsultantdoesnotmaintainthepoliciesofinsurancerequiredunderthisSectioninfullforceandeffectduringthetermofthisAgreement,orintheeventanyofConsultant’spoliciesdonotcomplywiththerequirementsunderthisSection,CitymayeitherimmediatelyterminatethisAgreementor,ifinsuranceisavailableatareasonablecost,Citymay,buthasnodutyto,takeoutthenecessaryinsuranceandpay,atConsultant’sexpense,thepremiumthereon.ConsultantshallpromptlyreimburseCityforanypremiumpaidbyCityorCitymaywithholdamountssufficienttopaythepremiumsfrompaymentsduetoConsultant.J. ProhibitionofUn .NoneofthecoveragesrequiredhereinwillbeincompliancewiththisSection11iftheyincludeanylimitingendorsementofanykindthathasnotbeenfirstsubmittedandapprovedbytheCityinwriting.K. .AseverabilityofinterestsprovisionmustapplyforalladditionalinsuredsensuringthatConsultant'sinsuranceshallapplyseparatelytoeachinsuredagainstwhomclaimismadeorsuitisbrought,exceptwithrespecttotheinsurer'slimitsofliability.Thepo|icy(ies)shallnotcontainanycross-liabilityexclusions.L. .ConsultantshallgivetheCitypromptandtimelynoticeofclaimsmadeorsuitsinstitutedthatariseoutoforresultfromConsultant’sperformanceunderthisAgreement,andthatinvolveormayinvolvecoverageunderanyoftherequiredliabilitypolicies.M .Consultantshallalsoprocureandmaintain,atitsowncostandexpense,anyadditionalkindsofinsurance,whichinitsownjudgmentmaybenecessaryforitsproperprotectionandprosecutionofthework. 121830001/2173159.1

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 262 of 959 IndemnityRequirementsnotLimiting
RiskManagerAuthority.
nsuranceReguirements
City'sCooperation
Consultant'sCoogeration
N. _ProcurementofinsurancebyConsultantshallnotbeconstruedasalimitationofConsultant'sliabilityorasfullperformanceofConsultant'sdutytoindemnifyCityunderSection10ofthisAgreement.0. TheCity’sRiskManagermay,inwriting,amendand/orwaivetheinsuranceprovisionssetforthinparagraphAherein.insuchcase,theConsultantshallcomplywiththeinsuranceprovisionsrequiredbytheCity’sRiskManager.P.SubcontractorI .ConsultantshallrequireeachofitssubcontractorsthatperformServicesunderthisAgreementtomaintaininsurancecoveragewhichmeetsalloftherequirementsofthisSection11.12.MutualCooperation.A. .CityshallprovideConsultantwithallpertinentData,documentsandotherrequestedinformationasisreasonablyavailableforConsu|tant’sproperperformanceoftheServicesrequiredunderthisAgreement.B. .intheeventanyclaimoractionisbroughtagainstCityrelatingtoConsu|tant’sperformanceofServicesrenderedunderthisAgreement.ConsultantshallrenderanyreasonableassistancethatCityrequires.13.RecordsandInspections.Consultantshallmaintaincompleteandaccuraterecordswithrespecttotime,costs,expenses,receipts,correspondence,andothersuchinformationrequiredbyCitythatrelatetotheperformanceoftheServices.ConsultantshallmaintainadequaterecordsofservicesprovidedinsufficientdetailtopermitanevaluationofServices.Allsuchrecordsshallbemaintainedinaccordancewithgenerallyacceptedaccountingprinciplesandshallbeclearlyidentifiedandreadilyaccessible.ConsultantshallprovidefreeaccesstoCity,itsdesigneesandrepresentativesatreasonabletimes,andshallallowCitytoexamineandauditthebooksandrecords,tomaketranscriptstherefromasnecessary,andtoinspectallwork,data,documents,proceedingsandactivitiesrelatedtothisAgreement.Suchrecords,togetherwithsupportingdocuments,shallbemaintainedforaperiodofthreeyearsafterreceiptoffinalpayment.14.SuspensionorTerminationofAgreement.A.TheCitymayatanytime,foranyreason,withorwithoutcause,suspendorterminatethisAgreement,oranyportionhereof,aftergivingwrittennoticetoConsultantatleastten(10)daysbeforethesuspensionorterminationistobeeffective.Uponreceiptofsaidnotice,theConsultantshallimmediatelyceaseallworkunderthisAgreement,unlessthenoticeprovidesotherwise.IftheCitysuspendsorterminatesaportionofthisAgreementsuchsuspensionorterminationshallnotmakevoidorinvalidatetheremainderofthisAgreement.B.IntheeventofCity'sterminationofthisAgreementduetoduetonofaultorfailureofperformancebyConsultant,CityshallpayConsultantbasedontheactualvalueofworksatisfactorilyperformeduptotheeffectivedateoftermination.Upontermination,ConsultantshallsubmitaninvoicetotheCitypursuanttotheprovisionsofSectionXofthisAgreement.InnoeventshallConsultantbeentitledtoreceivemorethantheamountthatwouldbepaidtoConsultantforthefullperformanceoftheServicesrequiredbythisAgreement.ConsultantshallhavenootherclaimagainstCitybyreasonofsuchtermination,includinganyclaimforcompensation. 12183.0001/217315931

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 263 of 959

15.ForceMajeure.ConsultantshallnotbeliableforanyfailuretoperformitsobligationsunderthisAgreementifConsultantpresentsacceptableevidence,inCity'ssolejudgment,thatsuchfailurewasduetostrikes,lockouts,labordisputes,embargoes,actsofGod,inabilitytoobtainlaborormaterialsorreasonablesubstitutesforlaborormaterials,governmentalrestrictions,governmentalregulations,governmentalcontrols,judicialorders,enemyorhostilegovernmentalaction,civilcommotion,fireorothercasualty,orothercausesbeyondConsu|tant’sreasonablecontrolandnotduetoanyactbyConsultant.16.Default.A.Consultant'sfailuretocomplywiththeprovisionsofthisAgreementshallconstituteadefault.intheeventthatConsultantisindefaultforcauseunderthetermsofthisAgreement,CityshallhavenoobligationordutytocontinuecompensatingConsultantforanyworkperformedafterthedateofdefaultandcanterminatethisAgreementimmediatelybywrittennoticetotheConsultant.B.IftheCityManagerorhisdesigneedeterminesthatConsultantisindefaultintheperformanceofanyofthetermsorconditionsofthisAgreement,CityshallserveConsultantwithwrittennoticeofthedefault.Consultantshallhavetencalendardaysafterserviceuponitofthenoticeinwhichtocurethedefaultbyrenderingasatisfactoryperformance.IntheeventthatConsultantfailstocureitsdefaultwithinsuchperiodoftime,Citymay,notwithstandinganyotherprovisionofthisAgreement,terminatethisAgreementwithoutfurthernoticeandwithoutprejudicetoanyotherremedytowhichitmaybeentitledatlaw,inequityorunderthisAgreement.17.Notice.Anynotices,bills,invoices,etc.requiredbythisAgreementshallbedeemedreceivedon(a)thedayofdeliveryifdeliveredbyhandduringthereceivingparty'sregularbusinesshoursorbyfacsimilebeforeorduringthereceivingparty'sregularbusinesshours;or(b)onthesecondbusinessdayfollowingdepositintheUnitedStatesmail,postageprepaidtotheaddressessetforthbelow,ortosuchotheraddressesasthepartiesmay,fromtimetotime,designateinwritingpursuanttothissection.IftoCity:CityManager100CivicCenterMallP.O.Drawer1788lndio,California92201Fax:(760)342-6597IftoConsultant:LandMarkConsultantsInc.77-948WildcatDrivePalmDesert,CA92211Attn:GregM.Chandra

18.ProhibitionofAssignmentandDelegation.ConsultantshallnotassignanyofitsrightsordelegateanyofitsdutiesunderthisAgreement,eitherinwholeorinpart,withoutCity'spriorwrittenconsent.City'sconsenttoanassignmentofrightsunderthisAgreementshallnotreleaseConsultantfromanyofitsobligationsoralteranyofitsprimaryobligationstobeperformedunder-3-121a3.ooo1/21731591

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 264 of 959 h *-'--"-~':".-**'-"m%wm w
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thisAgreement.AnyattemptedassignmentordelegationinviolationofthisSection18shallbevoidandofnoeffectandshallentitleCitytoterminatethisAgreement.AsusedinthisSection,"assignment"and"delegation"meansanysale,gift,pledge,hypothecation,encumbranceorothertransferofalloranyportionoftherights,obligations,orliabilitiesinorarisingfromthisAgreementtoanypersonorentity,whetherbyoperationoflaworothenNise,andregardlessofthelegalformofthetransactioninwhichtheattemptedtransferoccurs.19.Attorney'sFees.IntheeventthateitherpartycommencesanylegalactionorproceedingtoenforceorinterprettheprovisionsofthisAgreement,theprevailingpartyinsuchactionshallbeentitledtoreasonableattorney'sfees,costsandnecessarydisbursements,inadditiontosuchotherreliefasmaybesoughtandawarded.20.EntireAgreement.ThisAgreementrepresentstheentireintegratedagreementbetweenCityandConsultant,andsupersedesallpriornegotiations,representationsoragreements,eitherwrittenororal.ThisAgreementmaybeamendedonlybyawritteninstrumentsignedbybothCityandConsultant.21.NoThirdPartyBeneficiariesIntended.ThisAgreementismadesolelyforthebenefitofthePartiestothisAgreementandtheirrespectivesuccessorsandassigns,andnootherpersonorentitymayhaveoracquirearightbyvirtueofthisAgreement.TheCityshallnotbeobligatedorliableunderthisAgreementtoanypartyotherthanConsultant.22.Waiver.Nodelayoromissiontoexerciseanyright,powerorremedyaccruingtoCityunderthisAgreementshallimpairanyright,powerorremedyofCity,norshallitbeconstruedasawaiverof,orconsentto,anybreachordefault.Nowaiverofanybreach,anyfailureofacondition,oranyrightorremedyunderthisAgreementshallbe(1)effectiveunlessitisinwritingandsignedbythePartymakingthewaiver,(2)deemedtobeawaiverof,orconsentto,anyotherbreach,failureofacondition,orrightorremedy,or(3)deemedtoconstituteacontinuingwaiverunlessthewritingexpresslysostates.23.FinalPaymentAcceptanceConstitutesRelease.TheacceptancebyConsultantofthefinalpaymentmadeunderthisAgreementshalloperateasandbeareleaseofCityfromallclaimsandliabilitiesforcompensationtoConsultantforanythingdone,furnishedorrelatingtoConsultant’sworkorservices.AcceptanceofpaymentshallbeanynegotiationofCity'scheckorthefailuretomakeawrittenextracompensationclaimwithintencalendardaysofthereceiptofthatcheck.However,approvalorpaymentbyCityshallnotconstitute,norbedeemed,areleaseoftheresponsibilityandliabilityofConsultant,itsemployees,subcontractorsandagentsfortheaccuracyandcompetencyoftheinformationprovidedand/orworkperformed;norshallsuchapprovalorpaymentbedeemedtobeanassumptionofsuchresponsibilityorliabilitybyCityforanydefectorerrorintheworkpreparedbyConsultant,itsemployees,subcontractorsandagents.24.corrections.inadditiontotheaboveindemnificationobligations,Consultantshallcorrect,atitsexpense,allerrorsintheworkwhichmaybedisclosedduringCity’sreviewofConsultant'sreportsorplans,orothersubmittals.ShouldConsultantfailtomakesuchcorrectioninareasonablytimelymanner,suchcorrectionmaybemadebyCity,andthecostthereofshallbechargedtoConsultant.Inadditiontoallotheravailableremedies,CitymaydeductthecostofsuchcorrectionfromanyretentionamountheldbyCityormaywithholdpaymentothen/viseowedConsultantunderthisAgreementuptotheamountofthecostofcorrection. 121830001/2173159.1

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25.Non-AppropriationofFunds.PaymentstobemadetoConsultantbyCityforservicesperformedwithinthecurrentfiscalyeararewithinthecurrentfiscalbudgetandwithinanavailable,unexhaustedfund.IntheeventthatCitydoesnotappropriatesufficientfundsforpaymentofConsultant'sservicesbeyondthecurrentfiscalyear,theAgreementshallcoverpaymentforConsultant'sservicesonlytotheconclusionofthelastfiscalyearinwhichCityappropriatessufficientfundsandshallautomaticallyterminateattheconclusionofsuchfiscalyear.26.GoverningLawandChoiceofForum..ThisAgreement,andanydisputearisingfromtherelationshipbetweenthePartiestothisAgreement,shallbegovernedbyandconstruedinaccordancewiththelawsoftheStateofCalifornia,exceptthatanyruleofconstructiontotheeffectthatambiguitiesaretoberesolvedagainstthedraftingpartyshallnotbeappliedininterpretingthisAgreement.AnydisputethatarisesunderorrelatestothisAgreement(whethercontract,tortorboth)shallberesolvedinasuperiororfederalcourtwithgeographicjurisdictionovertheCityofIndio.27.RulesofConstruction.EachPartyhadtheopportunitytoindependentlyreviewthisAgreementwithlegalcounsel.Accordingly,thisAgreementwillbeconstruedsimply,asawhole,andinaccordancewithitsfairmeaning;itwillnotbeinterpretedstrictlyfororagainsteitherParty.28.TimeoftheEssence.TimeisoftheessenceinrespecttoallprovisionsofthisAgreementthatspecifyatimeforperformance;provided,however,thattheforegoingshallnotbeconstruedtolimitordepriveaPartyofthebenefitsofanygraceoruseperiodallowedinthisAgreement.29.Exhibits;Precedence.ExhibitsA,BandCconstituteapartofthisAgreementandareincorporatedintothisAgreementbythisreference.IfanyinconsistencyexistsorarisesbetweenaprovisionofthisAgreementandaprovisionofanyexhibit,orbetweenaprovisionofthisAgreementandaprovisionofConsultant'sproposal,theprovisionsofthisAgreementshallcontrol.30.Non-DiscriminationandEqualEmploymentOpportunity.intheperformanceofthisAgreement,Consultantshallnotdiscriminateagainstanyemployee,subcontractororapplicantforemploymentbecauseofrace,color,religiouscreed,sex,gender,genderidentity,genderexpression,maritalstatus,nationalorigin,ancestry,age,physicaldisability,mentaldisability,medicalcondition,geneticinformation,sexualorientationorotherbasisprohibitedbylaw.Consultantwilltakeaffirmativeactiontoensurethatsubcontractorsandapplicantsareemployed,andthatemployeesaretreatedduringemployment,withoutregardtotheirrace,color,religiouscreed,sex,gender,genderidentity,genderexpression,maritalstatus,nationalorigin,ancestry,age,physicaldisability,mentaldisability,medicalcondition,geneticinformationorsexualorientation.31.UndueInfluence.ConsultantdeclaresandwarrantsthatnoundueinfluenceorpressureisusedagainstorinconcertwithanyofficeroremployeeoftheCityinconnectionwiththeaward,termsorimplementationofthisAgreement,includinganymethodofcoercion,confidentialfinancialarrangement,orfinancialinducement.ConsultantdeclaresandwarrantsthatnoofficeroremployeeoftheCitywillreceivecompensation,directlyorindirectly,fromConsultant,orfromanyofficer,employeeoragentofConsultant,inconnectionwiththeawardofthisAgreementoranyworktobeconductedasaresultofthisAgreement.ViolationofthisSectionshallbeamaterialbreachofthisAgreemententitlingtheCitytoanyandallremediesatlaworinequity. -10-

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 266 of 959 \
' "FPIZK%-I912.

32.PrevailingWageandPayrollRecords.[checkifapplicable]IfthisAgreementcallsforservicesthat,inwholeorinpart,constitute"publicworks"asdefinedintheCaliforniaLaborCode,thenConsultantshallcomplywiththeprovisionsofExhibitC.33.Severability.invalidationofanyprovisioncontainedhereinortheapplicationthereoftoanypersonorentitybyjudgmentorcourtordershallinnowayaffectanyoftheothercovenants,conditions,restrictions,orprovisionshereof,ortheapplicationthereoftoanyotherpersonorentity,andthesameshallremaininfullforceandeffect.34.Counterparts.ThisAgreementmaybeexecutedinmultiplecounterparts,allofwhichshallbedeemedanoriginal,andallofwhichwillconstituteoneandthesameinstrument.35.CorporateAuthority.EachpersonexecutingthisAgreementonbehalfofhisorherPartywarrantsthatheorsheisdulyauthorizedtoexecutethisAgreementonbehalfofthatPartyandthatbysuchexecution,thatPartyisformallyboundtotheprovisionsofthisAgreement.

36.StatementofExperience.ByexecutingthisAgreement,Consultantrepresentsthatithasdemonstratedtrustworthinessandpossessesthequality,fitnessandcapacitytoperformtheAgreementinamannersatisfactorytoCity.Consultantrepresentsthatitsfinancialresources,suretyandinsuranceexperience,serviceexperience,completionability,personnel,currentworkload,experienceindealingwithprivateconsultants,andexperienceindealingwithpublicagenciesallsuggestthatConsultantiscapableofperformingtheproposedcontractandhasademonstratedcapacitytodealfairlyandeffectivelywithandtosatisfyapublicCity.

TheParties,throughtheirdulyauthorizedrepresentativesaresigningthisAgreementonthedatestatedintheintroductoryclause.

Name:Title:
-11-12183.0001/2173159.1
CONSULTANT:LANDMARK,INC.

Name:Title:1°re.s»‘dov
=-/V‘4‘-tF>.6<L_Cut.‘nsrt?’/i

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 267 of 959 BRY.MONTGOMEd

CITYOFINDIO
HCityManagerATTEST:

CYNTHIAHERNANDEZCityClerk

APPROVEDASTOFORM
ROXANNEDIAZCityAttorney
-12-121s3.ooo1/21731594

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 268 of 959

EXHIBITA

Page 15 of 35 ends

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 269 of 959 LImdMar/tConsultants,Inc. smallestablishedof?ccs/laboratoriesmDes DepartmentofTransponalion(CALDSAandCALTRAN,andaccredited GeotcchnicalofTheRecord—
PreConstructionRoughGradingObservation&TestingCompactionTestingofUtililyTrenchBack?ll acti SubgradeandBasegradeacti ivewayApproaches&SiCompactionTestinFoolingInspection GeoEngineersandGeologist

EXHIBITA
780N.4thStreetElCentro,CA92243(760)370-3000|andmark@|andmark—ca.cumaMBECompany 77~948WildcatDrivePalmDesert,CA92211(760)360-0665-IaI1UaI')'18:2022 gchandra@landmark—ca.com Mr.ScottTrujilloDeputyCityManagerforCityofIndio100CivicCenterMallIndio,CA92201 Subject:ConstructionTestingServicesCityofIndioPublicSafetyCampusIndio,CaliforniaLCIProposalNo.:LP2I260TDearMr.Trujillo:LandMarkConsultants,Inc.ispleasedtoprovidethisproposalforconstructiontestingattheproposedPublicSafetyCampusprojectinthecityofIndio,California.isa engineering?rminthegeosciences.WehaveinPalertandElCentro,CA.LandMarkConsultants,Inc.is100%MBEowned(AmericanIndianCherokeeNation)?rmascerti?edbyStateofCalifornia,TRANS).Ourfacilitiesarecerti?edbyStateofCalifornia byAmericanAssociationofStateHighwayandTransportationO?icials(AASHTO).WehaveprovidedgeotechnicalconsultingandmaterialstestingandinspectionservicesintheCoachellaValleyareaofSouthemCalifomia,since1987.Thefollowingscopeofworkisanticipatedforthisproject:- Consulting 0 CompactionTestingofCurb/GutterSubgradeComponTestingofComponTestingDr dewalkgduringAsphaltConcreteLaydownConcreteInspection&Testing- MasonryInspection&TestingNailingInspectionforShearWall0 FieldWelding&HSBInspection- UltrasonicInspection(LevelII)

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 270 of 959

EXHIBITA
Ourservicesasdescribedabovewillbeprovidedforabudgetfeeof$157,000.00.Ourserviceswillbeprovidedontimeandmaterialsbasisinaccordancewiththeratessetforthintheattached2022to2024PrevailingWagefeeschedule.Wehaveattemptedtoberealisticindevelopingourestimateforthisproject;pleasekeepinmindthatourservicesaredirectlydependentuponthecontractor’sscheduleandeventswhichoccurduringthedurationoftheprojectwhichcannotalwaysbepredictedinadvance.Anychangeinthecontractor’sschedulewillimpactourbudget.Wewillattempttocoordinateourserviceswiththecontractor'3sitesuperintendenttoefficientlyservicetheproject.Intheeventthatconstructionactivitiesresultinprojectedadditionalfeesbeyondthosedescribedherein,wewillcontactyouforadditionalwrittenbudgetincrease,ifnecessary.Thefeespresentedarebasedonpromptpaymentforservicespresentedinourstandardinvoicingformat.Weappreciatetheopportunitytoprovidetheseservicesforthesubjectproject.Pleasefeelfreetocallmeifyouhaveanyquestions.

SincerelyYours,I.andMarkConsultants,Inc.

GregM.Chandra,P.E.,M.ASCEAreaManager-PalmDesertOf?ce
LandMarkConsultants,Inc. Page2

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 271 of 959 LANIIMAHK(7F.'\Il_':|x_.)ir.-7~' "

EXHIBITA
ESTIMATEWORKSHEETCLIENT:CityoflndioPROJECT:PublicSafetyCampusLOCATION:Indio,CaliforniaPROPOSALNO.: L.P2l260TFIELD TripsHrs.I60200I60160I20120408020Subtotal:LABORATORYConcreteCompressionTest 60Grout/MortarCompressionTest 40ACExtraction/Gradation5MaximumDensity/OptimumMoisture(A)4MaximumDensity/OptimumMoisture(B/C/D2MaximumDensity-AC 5 SubtotalPRE-CONSTRUCTIONGEOTECHNICALCONSULTING4[2SubtotalPROJECTMANAGEMENT—REPORTS8%Subtotal:TOTAL:

Rate
225.00I90.00
$I42,650.00$$3
Total
2,100.001,600.001,500.00900.00500.00l.250.00
II,4I2.00lI,4l2.00l57,242.00
January2022
SoilTechnician-GradingSoilTechnician—Back?ll/SG/Base/ACICCInspector-Rebar&Com:ICCInspector-Rebar&MasonryICCInspector-FieldWeldingICCInspector-HSBICCInspector-Ultrasonic(levelII)ICCInspector-NailingProjectEngineer(Meeting) PrincipalEngineerProjectEngineer(Meeting)
aM£'
20502020I51510
Y
®© E?b?b?é?e?b? ¥l%6‘)%€?69%666e
120.00l20.00I25.00125.00125.00I25.00l95.00l25.00l90.00

35.0040.00300.00225.00250.00250.00
$$5$$3$$$
$
19,200.0024,000.0020,000.0020,000.0015,000.0015,000.007,300.0010,000.00|34,800.00 7,850.00
3,180.00$
750N41?!arealBcamm,(‘A92243(760)3703000(750)aanesoofax77-948vvnacaDrivePaimDesen,GA92211(760)360-0665(760)3500521fax 900.00
/XJJ.%{J/2J/J2%J/iJ//J,,X2 /J//.,%,J/2{J/,/

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 272 of 959

LANIJMAHK
Ins‘. otheservicesnotlisleproj viugolumeorspecial
bilityt amageto ropenysing erformandfo maybe tuponrash pmfcserrorsandomissions.willbelimitedtoourgeneralliabililyinsurancecoverage.hichwemaintaininlimitsof321100.000.Foranydamageonaccountofanyerror.omissiuorothernegligence,auxliabilitywillbelimitedInasumofnotloexceed350.000orourFeessdirect

EXHIBITA
2022to2024PREV AILINGW AGEPROFESSIONALFEESCHEDULELandmarkConsultants,Inc.isaconsulting?nnwhichprovidesservicesinSoilsandMaterialsEngineering,FaultandSeismicStudies,andConstructionMaterialsTesting.The?m1'sobjectivehasbeenprovidingengineeringservicesforpublicutilities,publicworksinfrastructure,residential,commercial,andindustrialprojectsintheSouthernCaliforniaareas.OFFICESANDLABORATORIESPhoneEmailElCentro,California(760)[email protected],California(760)[email protected] BASISOFCHARGESListedhereinaretypicalfeesforservicesmostfrequentlyperformedbyLandmarkConsultants,Feesforr dwillbegivenuponrequest,aswellasspecialquotationsforectsinvolv provisions.Invoiceswillbeissuedonabi-monthlybasis,oruponcompletionofaproject,whicheverissooner.Invoicesarepayablewhenreceivedunlessotherwiseagreed.Alatepaymentservicechargewillbecomputedattheperiodicrateof1.5%permonth,whichisanannualpercentagerateofI8%andwillbeappliedtoanyunpaidbalancecommencing30daysafterdateoftheoriginalinvoice.Atwo(2)hoursminimumwillbechargedfor?eldtechnicianandthereafterin4hoursincrements.Anovertimepremiumofl.StimesthestandardratewillbechargedforallpersonnelserviceorlaboratorytestperiodsinexcessofeighthoursperdayorSaturday.and2timesthestandardrateforworkinexcessofl2hoursperweekday,inexcessof8hoursonSaturdaysandalldayonSundaysorholidays.Afour(4)hoursminimumwillbechargedforallspecialinspectionservices.Perdiemwillbechargedatarateof$lS0.00perdayperpersonorexpenses+l0%,whicheverisgreater.Outsideserviceswillbechargedatcost+l0%unlessotherwisenoted.Allsamplesofsoilorrockwillbedestroyed30daysaftersubmissionof?nalreportunlesspriorarrangementsaremade.Ourlia0Clientforinjuryord personsorp ariourworkp edforClientrwhichlegalliabilityfoundtoresuserthanforsionalwn:lethird-partycosts,whicheverisgreater,unlessspeci?callynegotiatedotherwise. ®o—B1g:reersardGadogists

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 273 of 959 ..__-..... L. ......I'cssi9.._...._.............

Tesl
Adminislntion/Pro|'c¢lManagemen
EXHIBITA7077N1PrevnilinoW209Prnrm]Fee,Qr‘I1prl||lP
Field HourlvRateTechnician(Soil/Concrete/AsphaltConcrete/pickup)S120.00CoringTechnician S120.00Inspector(ICBO/AWS/CW1)S125.00Ultrasonic(LevelII) S195.00StaffEngineer/GeologistS165.00ProjectEngineer/GeologistS190.00SupervisoryTech./OperationManager S135.00PrincipalEngineer/GeologistS225.00WordProcessor/'I‘ypistS80.00Drafting S100.00TripCharges(over50milesradius) S200.00/trip Laboratnrv EachMax.Density—Op.Moisture(A) S225.00Max.Density— Op.Moisture(B,C,D) S250.00CheckPoint S100.00SieveAnalysis S130.00SandEquivalent S100.00DirectShear S310.00CollapsePotential S200.00SoilExpansionIndex S155.00SoilCorrosion S240.00R-Value S275.00CBR(100%Compaction) S450.00ACMaximumDensity(Marshall) S250.00ACExtraction/GradationS300.00ConcreteCompressionTest S35.00Concrete/ACCoreCompressionTest S75.00Grout/MortarCompressionTest S40.00MixDesignReview S350.00MasonryPrismCompressionTest S175.00ReinforcingSteelTension&BendTest S190.00StructuralSteelTension&BendTest S190.00MachineTestSpecimen Scost+20% 8%ofField&LaboratorySubtotal
LandMarkConsultants,Inc. Page2

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 274 of 959 :??I?* ll -H"I-I-I.I|'II'I
'l f'J'I“| Hibi-
:

I r? “ii h
lrI1—&h. - --'-.*I'
'-I 'h;'I"."I"ll-|'I"I-j-I
EXHIBITBTERMSFORCOMPLIANCEWITHCALIFORNIALABORLAWREQUIREMENTS1.ThisAgreementcallsforservicesthat,inwholeorinpart,constitute“publicworks"asdefinedinDivision2,Part7,Chapter1(commencingwithSection1720)oftheCaliforniaLaborCode(“Chapter1”).Further,ConsultantacknowledgesthatthisAgreementissubjectto(a)Chapter1and(b)therulesandregulationsestablishedbytheDepartmentofIndustrialRelations("DIR")implementingsuchstatutes.Therefore,astothoseServicesthatare"publicworks",Consultantshallcomplywithandbeboundbyalltheterms,rulesandregulationsdescribedin1(a)and1(b)asthoughsetforthinfullherein.2.CalifornialawrequirestheinclusionofspecificLaborCodeprovisionsincertaincontracts.Theinclusionofsuchspecificprovisionsbelow,whetherornotrequiredbyCalifornialaw,doesnotalterthemeaningorscopeofSection1above.3.ConsultantshallberegisteredwiththeDepartmentofIndustrialRelationsinaccordancewithCaliforniaLaborCodeSection1725.5,andhasprovidedproofofregistrationtoCitypriortotheEffectiveDateofthisAgreement.ConsultantshallnotperformworkwithanysubcontractorthatisnotregisteredwithDIRpursuanttoSection1725.5.ConsultantandsubcontractorsshallmaintaintheirregistrationwiththeDIRineffectthroughoutthedurationofthisAgreement.IftheConsultantoranysubcontractorceasestoberegisteredwithDIRatanytimeduringthedurationoftheproject,ConsultantshallimmediatelynotifyCity.4.PursuanttoLaborCodeSection1771.4,Consultant’sServicesaresubjecttocompliancemonitoringandenforcementbyDIR.Consultantshallpostjobsitenotices,asprescribedbyDIRregulations.5.PursuanttoLaborCodeSection1773.2,copiesoftheprevailingrateofperdiemwagesforeachcraft,classification,ortypeofworkerneededtoperformtheAgreementareonfileatCityHallandwillbemadeavailabletoanyinterestedpartyonrequest.ConsultantacknowledgesreceiptofacopyoftheDIRdeterminationofsuchprevailingrateofperdiemwages,andConsultantshallpostsuchratesateachjobsitecoveredbythisAgreement.6.ConsultantshallcomplywithandbeboundbytheprovisionsofLaborCodeSections1774and1775concerningthepaymentofprevailingratesofwagestoworkersandthepenaltiesforfailuretopayprevailingwages.TheConsultantshall,asapenaltytoCity,forfeit$200.00foreachcalendarday,orportionthereof,foreachworkerpaidlessthantheprevailingratesasdeterminedbytheDIRfortheworkorcraftinwhichtheworkerisemployedforanypublicworkdonepursuanttothisAgreementbyConsultantorbyanysubcontractor.7.ConsultantshallcomplywithandbeboundbytheprovisionsofLaborCodeSection1776,whichrequiresConsultantandeachsubcontractorto:keepaccuratepayrollrecordsandverifysuchrecordsinwritingunderpenaltyofperjury,asspecifiedinSection1776;certifyandmakesuchpayrollrecordsavailableforinspectionasprovidedbySection1776;andinformCityofthelocationoftherecords.8.ConsultantshallcomplywithandbeboundbytheprovisionsofLaborCodeSections1777.5,1777.6and1777.7andCaliforniaAdministrativeCodetitle8,section200etseq.concerningtheemploymentofapprenticesonpublicworksprojects.ConsultantshallberesponsibleforcompliancewiththeseaforementionedSectionsforallapprenticeable

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 275 of 959 H._
am.
rl - -I - I*
I
In:I
?i?.?E? 1E,§"r""§f::ig;"_:IIHE
In-I-I _-I " :$-.I.I'-.';
occupations.PriortocommencingworkunderthisAgreement,ConsultantshallprovideCitywithacopyoftheinformationsubmittedtoanyapplicableapprenticeshipprogram.Within60daysafterconcludingworkpursuanttothisAgreement,ConsultantandeachofitssubcontractorsshallsubmittoCityaverifiedstatementofthejourneymanandapprenticehoursperformedunderthisAgreement.9.TheConsultantshallnotperformWorkwithanySubcontractorthathasbeendebarredorsuspendedpursuanttoCaliforniaLaborCodeSection1777.1oranyotherfederalorstatelawprovidingforthedebarmentofcontractorsfrompublicworks.TheConsultantandsubcontractorsshallnotbedebarredorsuspendedthroughoutthedurationofthisContractpursuanttoLaborCodeSection1777.1oranyotherfederalorstatelawprovidingforthedebarmentofcontractorsfrompublicworks.IftheConsultantoranysubcontractorbecomesdebarredorsuspendedduringthedurationoftheproject.theConsultantshallimmediatelynotifyCity.10.Consultantacknowledgesthateighthourslaborconstitutesalegalday'swork.ConsultantshallcomplywithandbeboundbyLaborCodeSection1810.ConsultantshallcomplywithandbeboundbytheprovisionsofLaborCodeSection1813concerningpenaltiesforworkerswhoworkexcesshours.TheConsultantshall,asapenaltytoCity,forfeit$25.00foreachworkeremployedintheperformanceofthisAgreementbytheConsultantorbyanysubcontractorforeachcalendardayduringwhichsuchworkerisrequiredorpermittedtoworkmorethaneighthoursinanyonecalendardayand40hoursinanyonecalendarweekinviolationoftheprovisionsofDivision2,Part7,Chapter1,Article3oftheLaborCode.PursuanttoLaborCodesection1815,workperformedbyemployeesofConsultantinexcessofeighthoursperday,and40hoursduringanyoneweekshallbepermitteduponpublicworkuponcompensationforallhoursworkedinexcessofeighthoursperdayatnotlessthanoneandone-halftimesthebasicrateofpay.11.CaliforniaLaborCodeSections1860and3700providethateveryemployerwillberequiredtosecurethepaymentofcompensationtoitsemployees.InaccordancewiththeprovisionsofCaliforniaLaborCodeSection1861,Consultantherebycertifiesasfollows:'‘IamawareoftheprovisionsofSection3700oftheLaborCodewhichrequireeveryemployertobeinsuredagainstliabilityforworkers’compensationortoundertakeself-insuranceinaccordancewiththeprovisionsofthatcode,andIwillcomplywithsuchprovisionsbeforecommencingtheperformanceoftheworkofthiscontract."12.Foreverysubcontractorwhowillperformworkontheproject,Consultantshallberesponsibleforsuchsubcontractor’scompliancewithChapter1andLaborCodeSections1860and3700,andConsultantshallincludeinthewrittencontractbetweenitandeachsubcontractoracopyofthosestatutoryprovisionsandarequirementthateachsubcontractorshallcomplywiththosestatutoryprovisions.Consultantshallberequiredtotakeallactionsnecessarytoenforcesuchcontractualprovisionsandensuresubcontractor‘scompliance,includingwithoutlimitation,conductingaperiodicreviewofthecertifiedpayrollrecordsofthesubcontractoranduponbecomingawareofthefailureofthesubcontractortopayhisorherworkersthespecifiedprevailingrateofwages.Consultantshalldiligentlytakecorrectiveactiontohaltorrectifyanyfailure.13.Tothemaximumextentpermittedbylaw,Consultantshallindemnify,holdharmlessanddefend(atConsultant'sexpensewithcounselreasonablyacceptabletoCity)City,itsofficials,officers,employees,agentsandindependentcontractorsservingintheroleofCityofficials,andvolunteersfromandagainstanydemandorclaimfordamages,compensation,fines,penaltiesor

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 276 of 959 otheramountsarisingoutoforincidentaltoanyactsoromissionslistedabovebyanypersonorentity(inc|udingConsultant,itssubcontractors,andeachoftheirofficials,officers,employeesandagents)inconnectionwithanyworkundertakenorinconnectionwiththeAgreement,includingwithoutlimitationthepaymentofallconsequentialdamages,attorneys’fees,andotherrelatedcostsandexpenses.AlldutiesofConsultantunderthisSectionshallsurvivetheterminationoftheAgreement.

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 277 of 959 LANDMARKGeo-EngineersandGeologisaMBECompany
December30,2022
Mr.ScottTrujilloDeputyCityManagerforCityofIndio100CivicCenterMallIndio,CA92201 Subject:ConstructionTestingServices
— AddendumNo.1CityofIndioPublicSafetyCampusIndio,CaliforniaLCIProposalN0.:LP21260T DearMr.Trujillo
Thefollowingscopeofworkisanticipatedforthisproject:SoilCompactionTestingConcrete&RebarInspection&TestingFieldWelding&HSBInspection 780N.4thStreetElCentro,CA92243(760)370-3000|andmark@|andmark-ca.com77-948WildcatDrivePalmDesert,CA92211(760)360-0665gchandra@|andmark«ca.com Ourservicesasdescribedabovewillbeprovidedforabudgetfeeof$115,000.00.Ourserviceswillbeprovidedonatimeandmaterialsbasisinaccordancewiththeratessetforthintheattached2022to2024PrevailingWagefeeschedule. ispleasedtoprovidecostaddendumforconstructiontestingattheproposedPublicSafetyCampusprojectinthecityofIndio,California.LandMarkConsultants,Inc. isasmallengineering?rminthegeosciences.Wehaveestablishedoffices/laboratoriesinPalmDesertandElCentro,CA.is100%MBEowned(AmericanIndianCherokeeNation)?rmascerti?edbyStateofCalifornia,DepartmentofTransportation(CALTRANS).Ourfacilitiesarecerti?edbyStateofCaliforniaDSAandCALTRANandaccreditedbyAmericanAssociationofStateHighwayandTransportationOf?cials(AASHTO).WehaveprovidedgeotechnicalconsultingandmaterialstestingandinspectionservicesintheCoachellaValleyareaofSouthernCalifornia,since1987.

LandMarkConsultants,Inc. LandMarkConsultants,Inc.

Wehaveattemptedtoberealisticindevelopingourestimateatthebeginningofthisproject;however,ourservicesaredirectlydependentuponthecontractor’sscheduleandeventswhichoccurduringthedurationoftheprojectwhichcannotalwaysbepredictedinadvance.Anychangeinthecontractor’sscheduleandsiteconditionswillimpactonourbudget,forwhichthisaddendumisprepared

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 278 of 959 Thefeespresentedarebasedonpromptpaymentforservicespresentedinourstandardinvoicingformat.Weappreciatetheopportunitytoprovidetheseservicesforthesubjectproject.Pleasefeelfreetocallmeifyouhaveanyquestions.

SincerelyYours,LandMarkConsultants,Inc.

GregM.Chandra,P.E.,M.ASCEAreaManager-PalmDesertOffice
LandMarkConsultants,Inc Page2

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 279 of 959 LANIJMAHKTGeo-EngineersandGGOIOQEa/\1&npan_y 780N.4thSreetElCenlm,(‘J\92243(760)370-3000(760)337-8900fax77-948VwldtzDrivePdmDesert.CA92211(760)360-0665(760)360-0521fax ESTATEORKSHEETCLIENT:Tilden-CoilContructorsPROJECT:PublicSafetyCampusLOCATION:Indio,CaliforniaPROPOSALNO.: LP21260TAddendumNo.:IFIELD TripsI-Irs. RateTotalSoilTechnician50400 120.00$48,000.00SoilTechnician-Overtime 60 180.00$10,800.00ICCInspector-Reba:&Conc1080 125.00$10,000.00ICCInspector-Rebar&ConcOT 24 125.00$ 3,000.00ICCInspector-FieldWelding/HSE30240 125.00$30,000.00Subtota$101,800.00LABORATORYConcreteCompressionTest 60 $ 35.00$ 2,100.00MaximumDensity/OptimumMoisture(A)4 $ 225.00$ 900.00SoilExpansion3 $ 160.00$ 480.00SoilCorrosion 3 $ 240.00$ 720.00Subtotal:$ 4,200.00PROJECTMANAGEMENT-REPORTS8%$106,000.00$ 8.480.00Subtotal:$ 8,480.00TOTAL:$114,480.00 December2022
$$$$$
@@@@@@@@@

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 280 of 959

LANIJMARK
2022to2024PREV AILINGW AGEPROFESSIONALFEESCHEDULE
OFFICESANDLABORATORIESPhoneEmailElCentro,California(760)370-3000landmark@landmark—ca.comPalmDesert,California(760)[email protected]

BASISOFCHARGES
OurliabilitytoClientforinjuryordamagetopersonsorpropertyarisingourworkperformedforClientandforwhichlegalliabilitymaybefoundtorestuponusratherthanforprofessionalerrorsandomissions,willbelimitedtoourgeneralliabilityinsurancecoverage,whichwemaintaininlimitsof$2,000,000.Foranydamageonaccountofanyerror,omission,orothernegligence,ourliabilitywillbelimitedtoasumofnottoexceed$50,000orourfeelessdirectthird-partycosts,whicheverisgreater,unlessspeci?callynegotiatedotherwise. isaconsulting?rmwhichprovidesservicesinSoilsandMaterialsEngineering,FaultandSeismicStudies,andConstructionMaterialsTesting.The?nn'sobjectivehasbeenprovidingengineeringservicesforpublicutilities,publicworksinfrastructure,residential,commercial,andindustrialprojectsintheSouthernCaliforniaareas.

LandmarkConsultants,Inc.

ListedhereinaretypicalfeesforservicesmostfrequentlyperformedbyFeesforotherservicesnotlistedwillbegivenuponrequest,aswellasspecialquotationsforprojectsinvolvingvolumeorspecialprovisions.LandmarkConsultants,Inc.

Invoiceswillbeissuedonabi—monthlybasis,oruponcompletionofaproject,whicheverissooner.Invoicesarepayablewhenreceivedunlessotherwiseagreed.Alatepaymentservicechargewillbecomputedattheperiodicrateof1.5%permonth,whichisanannualpercentagerateof18%andwillbeappliedtoanyunpaidbalancecommencing30daysafterdateoftheoriginalinvoice.

Allsamplesofsoilorrockwillbedestroyed30daysaftersubmissionof?nalreportunlesspriorarrangementsaremade.

Atwo(2)hoursminimumwillbechargedfor?eldtechnicianandthereafterin4hoursincrements.Anovertimepremiumofl.5timesthestandardratewillbechargedforallpersonnelserviceorlaboratorytestperiodsinexcessofeighthoursperdayorSaturday,and2timesthestandardrateforworkinexcessof12hoursperweekday.inexcessof8hoursonSaturdaysandalldayonSundaysorholidays.Afour(4)hoursminimumwillbechargedforallspecialinspectionservices.Perdiemwillbechargedatarateof$l50.00perdayperpersonorexpenses+10%,whicheverisgreater.Outsideserviceswillbechargedatcost+l0%unlessotherwisenoted.

CBO-Engineersard(bdogists

Page 27 of 35 ends

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 281 of 959 AdminislrationlhoiectManagement:
2022to2024PrevailingWageProfessionalFeeSchedule
Field HourlyRateTechnician(Soil/Concrete/AsphaltConcrete/pickup)$120.00CoringTechnician $120.00Inspector(ICBO/AWS/CWI)$125.00Ultrasonic(LevelII) $195.00StaffEngineer/Geologist$165.00ProjectEngineer/Geologist$190.00SupervisoryTech./OperationManager $135.00PrincipalEngineer/Geologist$225.00WordProcessor/Typist $80.00Drafting $100.00TripCharges(over50milesradius) $200.00/trip LaboratoryTest EachMax.Density— Op.Moisture(A) $225.00Max.Density— Op.Moisture(B,C,D) $250.00CheckPoint $100.00SieveAnalysis $130.00SandEquivalent $100.00DirectShear $310.00CollapsePotential $200.00SoilExpansionIndex $155.00SoilCorrosion $240.00R—Value $275.00CBR(100%Compaction) $450.00ACMaximumDensity(Marshall) $250.00ACExtraction/Gradation$300.00ConcreteCompressionTest $35.00Concrete/ACCoreCompressionTest $75.00Grout/MortarCompressionTest $40.00MixDesignReview $350.00MasonryPrismCompressionTest $175.00ReinforcingSteelTension&BendTest $190.00StructuralSteelTension&BendTest $190.00MachineTestSpecimen $cost+20% LandMarkConsultants,Inc.
8%ofField&LaboratorySubtotal
Page2

Page 28 of 35 ends

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 282 of 959 LANIJMAHKGeo-EngineersandGeologis780N.4thStreetElCentro,CA92243(760)370-3000|andmark@|andmark—ca.comaMBECompany 77-948WildcatDrivePalmDesert,CA92211(750)360-0665June9: [email protected] Mr.ScottTrujilloDeputyCityManagerforCityofIndio100CivicCenterMallIndio,CA92201 Subject:ConstructionTestingServices
— AddendumNo.2CityofIndioPublicSafetyCampusIndio,CaliforniaLCIProposalNo.:LP21260T DearMr.Trujillo:

Thefollowingscopeofworkstillisanticipatedforthisproject:CMUWallsParkinglotsPhase2and3FoundationsandSteelforCanopiesFoundationsandSteelforPVStructuresVariousUtilityTrenchBack?llDrivewayApproachesOurservicesasdescribedabovewillbeprovidedforabudgetfeeof$85,000.00.Ourserviceswillbeprovidedonatimeandmaterialsbasisinaccordancewiththeratessetforthintheattached2022to2024PrevailingWagerevisedfeeschedule. ispleasedtoprovideanadditionalcostaddendumforconstructiontestingattheproposedPublicSafetyCampusprojectinthecityofIndio,California.LamlMarkConsultants,Inc.

Page 29 of 35 ends

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 283 of 959 LANDMARKTGeo—EngineersandG-eo|ogisTsaMfcbnqoany
CLIENT:CituofIndioPROJECT:PublicSafetyCampusLOCATION:Indio,CaliforniaPROPOSALNO.: LP21260TAddendumNo.:2FIELD TripsHrs. Rate@$ 108.00@$ 108.00Subtotal:LABORATORYMaterialsLaboratoryTesting @$7,500.00Subtotal:PROJECTMANAGEMENT—REPORTS LandMarkConsultants
0%$85,260.00Subtotal:TOTAL:
$$
$
780N.4thSreetElCentro,CA92243(760)370-3000(760)337-8900fax Total25,920.0051,840.00
7,500.007,500.00
June2023
SoilTechnicianICCInspector60120240480 $
$
77-948VwldcaDrivePalmDesert,CA92211(760)360-0665(760)360-0521fax 77,760.00
85,260.00

Page 30 of 35 ends

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 284 of 959

LANIJMARK
2022to2024PREV AILINGW AGEPROFESSIONALFEESCHEDULE
OFFICESANDLABORATORIESPhoneEmailElCentro,California(760)370-3000landmark@landmark—ca.comPalmDesert,California(760)[email protected]

BASISOFCHARGES
OurliabilitytoClientforinjuryordamagetopersonsorpropertyarisingourworkperformedforClientandforwhichlegalliabilitymaybefoundtorestuponusratherthanforprofessionalerrorsandomissions,willbelimitedtoourgeneralliabilityinsurancecoverage,whichwemaintaininlimitsof$2,000,000.Foranydamageonaccountofanyerror,omission,orothernegligence,ourliabilitywillbelimitedtoasumofnottoexceed$50,000orourfeelessdirectthird-partycosts,whicheverisgreater,unlessspeci?callynegotiatedotherwise. isaconsultingfirmwhichprovidesservicesinSoilsandMaterialsEngineering,FaultandSeismicStudies,andConstructionMaterialsTesting.Thefirm'sobjectivehasbeenprovidingengineeringservicesforpublicutilities,publicworksinfrastructure,residential,commercial,andindustrialprojectsintheSouthernCaliforniaareas.

LandmarkConsultants,Inc.

Invoiceswillbeissuedonabi-monthlybasis,oruponcompletionofaproject,whicheverissooner.Invoicesarepayablewhenreceivedunlessotherwiseagreed.Alatepaymentservicechargewillbecomputedattheperiodicrateof1.5%permonth,whichisanannualpercentagerateof18%andwillbeappliedtoanyunpaidbalancecommencing30daysafterdateoftheoriginalinvoice.

Allsamplesofsoilorrockwillbedestroyed30daysaftersubmissionof?nalreportunlesspriorarrangementsaremade.

Atwo(2)hoursminimumwillbechargedfor?eldtechnicianandthereafterin4hoursincrements.Anovertimepremiumof1.5timesthestandardratewillbechargedforallpersonnelserviceorlaboratorytestperiodsinexcessofeighthoursperdayorSaturday,and2timesthestandardrateforworkinexcessof12hoursperweekday,inexcessof8hoursonSaturdaysandalldayonSundaysorholidays.Afour(4)hoursminimumwillbechargedforallspecialinspectionservices.Perdiemwillbechargedatarateof$150.00perdayperpersonorexpenses+10%.whicheverisgreater.Outsideserviceswillbechargedatcost+10%unlessotherwisenoted.

Gao-|:‘ngireersardGadogists

Page 31 of 35 ends

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 285 of 959 Sched
HourlyRate
Administration/ProjectManagement:
2022to2024PrevailingWageProfessionalFeeule
FieldTechnician(Soil/Concrete/AsphaltConcrete/pickup)$108.00CoringTechnician $108.00Inspector(ICBO/AWS/CWI)$108.00Ultrasonic(LevelII) $195.00StaffEngineer/Geologist$165.00ProjectEngineer/Geologist$190.00SupervisoryTech./OperationManager $135.00PrincipalEngineer/Geologist$225.00WordProcessor/Typist $80.00Drafting $100.00TripCharges(over50milesradius) $200.00/trip LaboratorvTest EachMax.Density— Op.Moisture(A) $225.00Max.Density— Op.Moisture(B,C,D) $250.00CheckPoint $100.00SieveAnalysis $130.00SandEquivalent $100.00DirectShear $310.00CollapsePotential $200.00SoilExpansionIndex $155.00SoilCorrosion $240.00R-Value $275.00CBR(100%Compaction) $450.00ACMaximumDensity(Marshall) $250.00ACExtraction/Gradation$300.00ConcreteCompressionTest $35.00Concrete/ACCoreCompressionTest $75.00Grout/MortarCompressionTest $40.00MixDesignReview $350.00MasonryPrismCompressionTest $175.00ReinforcingSteelTension&BendTest $190.00StructuralSteelTension&BendTest $190.00MachineTestSpecimen $cost+20% 0%ofField&LaboratorySubtotal
LandMarkConsultants,Inc. Page

Page 32 of 35 ends

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 286 of 959

SECOND AMENDMENT TO AGREEMENT

BY AND BETWEEN

THE CITY OF INDIO,

A CALIFORNIA MUNICIPAL CORPORATION

AND

LANDMARK CONSULTANTS INC.

A CALIFORNIA STOCK CORPORATION

Form Approved 12/06/2022

Page 33 of 35 ends

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 287 of 959

SECOND AMENDMENT TO AGREEMENT
BETWEEN THE CITY OF INDIO AND LANDMARK CONSULTANTS INC.

THIS SECOND AMENDMENT TO AGREEMENT (“Second Amendment”) is made and entered into this ___ day of _______________, 202__ (“Effective Date”), by and between the CITY OF INDIO (“City”), a Cali fornia municipal corporation and LANDMARK CONSULTANTS INC. (“Contractor”). For the purposes of this Agreement, City and Contractor are sometimes hereinafter referred to as “Party” and hereinafter referred collectively referred to as the “Parties.”

RECITALS

1. The Parties entered into an agreement for construction testing at the proposed Public Safety Campus project dated April 20, 2022 (“Agreement”).

2. An amendment to the agreement was required to accommodate additional testing needs. The original contract amount was based on preconstruction estimates; however,
after considering the contractor's schedule and site conditions, an addendum is necessary to ensure the project's successful completion within the designated timeline.

OPERATIVE PROVISIONS
NOW, THEREFORE, for and in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:

SECTION 1. AMENDMENT.

Per Addendum No. 2: The professional services for the project will be provided at a budget of $85,000 with an additional 10% contingency allocated for time and materials in a not to exceed amount of $93,500.

SECTION 2. GENERAL PROVISIONS.
(a) REMAINDER UNCHANGED. Except as specifically modified and amended in this Second Amendment, the Agreement remains in full force and effect and is binding upon the Parties. (b) INTEGRATION. This Second Amendment constitutes the entire understanding and agreement of the Parties and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the transaction discussed in this Second Amendment.
(c) EFFECTIVE DATE. This Second Amendment shall not become effective until the date it has been executed by the appropriate authorities of the City and Contractor. (d) APPLICABLE LAW. The laws of the State of California shall govern the interpretation and enforcement of this Second Amendment.
16 August 3

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AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 288 of 959 (e) REFERENCES. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this Second Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contrary in this Second Amendment.

SECOND AMENDMENT TO AGREEMENT
BETWEEN THE CITY OF INDIO AND LANDMARK CONSULTANTS INC.

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

CITY OF INDIO
By: ___________________________
Bryan H. Montgomery
City Manager
ATTEST:

CITY CLERK
By: ___________________________
Sabdi Sanchez, CMC
City Clerk Administrator
APPROVED AS TO FORM:

CITY ATTORNEY
By: ____________________________
LandMark Consultants Inc.

By: ___________________________
Consultant
Name:

Title:
:

Page 35 of 35 ends

AGENDA ITEM #8.13
Addendum No. 2 to LandMark Consultants, Inc. for Construction Testing an... Page 289 of 959 City of Indio
City Council
August 16, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Carl S. Morgan, Dir. Of Economic Development Subject: Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the amount of $630,000 plus title and escrow costs and other related expenses not to exceed $645,000 for the City's purchase of the commercial property generally located at the north/east quadrant of Smurr Street and Bliss Avenue (Assessor Parcel N umber 611 -174-008), and finding of conformity with the General Plan

RECOMMENDATION:
1) Approve the Purchase and Sale Agreement with Cipriano De La Cruz for the City's purchase of the commercial property generally located at the north/east quadrant of Sm urr Street and Bliss Avenue (Assessor Parcel Number 611 -174-008) in the not -to-exceed amount of $645,000 to cover the purchase price of $630,000, and up to $15,000 to cover title, escrow and other related expenses, and finding of conformity with the Genera l Plan; and 2) Authorize the City Manager to execute all documents necessary to complete the purchase.

SUMMARY:

The City’s purchase of the subject commercial property (APN 611-174-008) consisting of three office suites located at the north/east quadrant of Smurr Street and Bliss Avenue (Attachment 1). The City has agreed to purchase the property in the total not-to-exceed purchase price of $645,000 which will serve to facilitate future development of the downtown. The purchase price includes the negotiated sales price of $630,000, plus up to $15,000 to cover escrow closing costs and other associated expenses such as a portion of the broker fees.

BACKGROUND INFORMATION:

In accordance with the City’s 2022 -24 Strategic Plan, the City Council allocated funds to acquire certain key properties in downtown. Staff has been working diligently with a local broker to solicit and encourage existing property owners to sell their properties to the City. In response to this effort, Mr.

Cipriano de la Cruz (“Seller”) expressed interest in selling his property to the City via a letter dated June 12, 2013. Since then, Staff has b een working closely with the Seller to negotiate the terms of the proposed Purchase and Sale Agreement (Attachment 2).

The key negotiated deal-terms of the Purchase and Sale Agreement are summarized as follows:

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 290 of 959 -The City shall purchase the property f or a not -to-exceed amount of $645,000. This amount includes the negotiated property value of $630,000. It also includes up to $15,000 in escrow, title and other closing costs.

-City will pay 50% of the standard escrow fees and a 1% broker commission fee through escrow.

Seller shall pay 50% of the escrow fees and a 3% commission.

-City agrees to allow the Seller to remain as a current occupant of one of the existing office suites after the close of escrow, subject to the City and Seller executing a formal lease. The anticipated lease will be for an approximate two (2) year term that will expire on June 30, 2025, subject to the preparation and execution of a lease agreement per the city’s lease agreement requirements. For example, minimum insurance requirements, pay for utilities and maintain the property. During the lease term, the Seller as an occupant/lessee will not be subject to paying rent. Upon expiration of the lease, Seller is to deliver the property empty with no tenants. The Lease agreement will also include to waive any relocation benefits.

-Prior to entering into a Purchase and Sale Agreement and Lease Agreements, the City will review all current leases on the property and make the determination if they want to the tenants to remain and assume the existing leases of the other two (2) suites. If so, the tenants would be allowed to remain as occupants under the condition that the tenants agree to amend their existing lease agreement and waive relocation assistance. However, the City shall also maintain its discretion to not assume the leases and instead request that the units be vacated. This gives the City flexibility to utilize the property in a manner that maximizes the City’s strategic advantage in further developing the Downtown while providing the maximum benefit for the community.

-All the above terms and conditions are subject to a Purchase & Sale Agreement and Lease Agreements review by the City Council and approval.

General Plan Conformity: The property falls within Downtown (DT) under the City of Indio General Plan 2040. This designation is characterized as supporting a lively and thriving downtown area by accommodating multi-story, mixed-use development at higher densities and intensities. It provides for intensified vertical and horizontal mixed -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 visitor s from the Coachella Valley. Encourage a broad mix of uses 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 encourage and facilitate future development and contin uing 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:
$645,000 In current year budget: Yes

Page 2 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 291 of 959 Current FY General
Fund Impact:
$645,000 Budget adjustment: No
Next FY Financial
Impact:
$0 Strategic Objective: Downtown & Hwy 111
Revitalization
Source of funds: General Fund Fund-Org-Object
Reference:
1011190-551003

Additional Financial Details:

$645,000 to cover the purchase price of $630,000, and up to $15,000 to cover title, escrow and other costs related expenses

ATTACHMENTS:

Attachment 1--Property Location Map
Attachment 2--Purchase and Sale Agreement (45250 SMURR STREET)

APPROVAL(S):

Carl S. Morgan, Dir. Of Economic Development Approved - 07 Aug 2023 Jillian Martins, Assistant City Attorney Approved - 07 Aug 2023 Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 07 Aug 2023 Bryan H. Montgomery, City Manager Approved - 08 Aug 2023

Page 3 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 292 of 959 Attachment 1
Property Location Map
(611-174-008)
= Subject Property

Page 4 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 293 of 959 1 PURCHASE AND SALE AGREEMENT

BETWEEN THE CITY OF INDIO AND CIPRIANO DE LA CRUZ
(45250 SMURR STREET)
This Purchase and Sale Agreement (“Agreement”) is entered into this 16th day of August, 2023 (“Effective Date”), by and between THE CITY OF INDIO, a California municipal corporation (“Buyer”) and Cipriano De La Cruz, an Individual (“Seller”). In consideration of the mutual covenants and agreements, the parties agree to the following terms and conditions:

ARTICLE I

AGREEMENT OF SALE

1.1Buyer’s Status. Buyer is a public entity with the power to acquire real and personal property for public uses and purposes. Buyer is engaged in property acquisition for a public use.

1.2Property. Seller owns certain real property located 45250 Smurr Street, Indio, California, bearing Assessor Parcel No. 611-174-008 (“Property”), more particularly described in the legal description and on the plat attached hereto and marked as Exhibit “A” and incorporated herein by reference.

1.3Agreement of Purchase and Sale. Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, upon the terms and for the considerations set forth in this Agreement, the fee interest in the Property.

1.4Incomplete Legal Description. If the legal description of the Property is not complete or is inaccurate, this Agreement shall not be invalid, and the legal description shall be completed or corrected to meet the requirements of the Title Company to issue a title policy hereinafter described.

1.5Other Grants. It is agreed that Seller, or its successors in interest, will not grant an interest in the Property, or any part thereof, including, but not limited to, a fee simple interest, easements, or any other conveyances and/or construct improvements or make changes upon, or to, the Property during the period between the Effective Date and the Close of Escrow, as such term is defined below.

1.6Possession. Seller agrees that the Property will be available to Buyer, vacant, unaltered, and unoccupied condition, upon the Close of Escrow, unless otherwise specified herein.

1.7Compensation. This Agreement is intended to be a resolution of all elements of “Just Compensation” to which Seller may be entitled and such other elements of damage, benefits, and assistance as are authorized by law. The parties desire by this Agreement to provide the terms and conditions for the purchase and sale of the Property.

1.8Compensatory Laws. Seller hereby acknowledges that Seller, or its

Page 5 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 294 of 959 2 tenants, may be eligible to receive compensation, damages, and/or relocation benefits and assistance pursuant to the following: The Constitution of the State of California (Article I, Section 19), the Eminent Domain Law (California Code of Civil Procedure Section 1230.010, et seq.), the California Relocation Assistance Act (California Government Code Section 7260, et seq.), implementing rules and regulations (Title 25, California Code of Regulations) and/or local, state or federal ordinances, statutes, rules, regulations and decisional laws (collectively “Compensatory Laws”). Any such compensation and benefits are provided for in this Agreement.

1.9Tax-Deferred Exchange. Seller may use the proceeds from the sale of the Property to effect one or more tax deferred exchanges under Internal Revenue Code §§ 1031 or 1033. Buyer agrees to accommodate Seller in effecting such tax-deferred exchange. Seller shall have the right, expressly reserved herein, to elect such tax-deferred exchange at any time before the Close of Escrow. Seller and Buyer agree, however, that consummation of the purchase and sale of the Property is not conditioned on such exchange. If Seller elects to make a tax- deferred exchange, Buyer agrees to execute such additional escrow instructions, deeds, documents, agreements, or instruments to effect this exchange, provided that Buyer shall incur no additional costs, expenses, or liabilities in this transaction as a result of or in connection with this exchange. Seller agrees to hold Buyer harmless from any liability, damages, or costs, including reasonable attorney fees, that may arise from Buyer’s participation in such exchange.

1.10Due Diligence. Buyer shall have forty-five (45) days from the Effective Date (“Contingency Date”) to perform, in its sole discretion, its due diligence review of the condition of Property and all other matters concerning the Property, including without limitation, economic, financial, and accounting matters relating to or affecting the Property or its value, and the physical and environmental condition of the Property. Prior to the Contingency Date, Buyer shall have made such inquiries, communicated with local, state, and federal government agencies as it sees fit, retained such consultants, and taken such actions as Buyer deems necessary or appropriate to enter into this Agreement. On or before the Contingency Date, Buyer shall deliver written notice to Seller accepting the Property or terminating this Agreement. If Buyer fails to give such notice on or before the Contingency Date, Buyer shall be deemed to have accepted the Property and proceed with this Agreement.

ARTICLE II

PURCHASE PRICE, TITLE AND ESCROW

2.1Purchase Price. Buyer shall pay to the Seller the sum of Six Hundred Thirty Thousand Dollars ($630,000) (“Purchase Price”). The Buyer agrees to provide the Seller with a copy of the property’s appraisal document, prepared by a licensed appraiser, within five (5) days of the effective date of this Agreement. The appraisal document shall be considered an essential part of this transaction. Seller acknowledges and agrees that any liens due shall be paid out of the Purchase Price. The Purchase Price shall represent full and complete compensation pursuant to Compensatory Laws for the rights and interests being acquired herein by Buyer, including, without limitation, real property, fixtures and equipment, loss of business goodwill, relocation assistance and such other compensation, damages and benefits as may be permitted by law. The

Page 6 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 295 of 959 3 Purchase Price shall be payable to Seller in immediately available funds in accordance with the provisions and requirements of this Agreement.

2.2Just Compensation. Payment of the Purchase Price and compensation under this Agreement shall be deemed Just Compensation and shall include fair market value, damages of whatever kind or nature arising out of Buyer’s acquisition of Seller’s interest in realty, improvements, fixtures and equipment, and business interests including, without limitation, loss of business goodwill, loss of rent, bonus value, loss of inventory, equipment, patronage, and loss of opportunities.

2.3Escrow. Buyer and Seller shall open an escrow (“Escrow”) with First American Title Company (“Escrow Holder”) within five (5) business days after the Effective Date by depositing a copy of this executed Agreement (or copies of executed counterparts of this Agreement) with Escrow Holder and requesting that an escrow be opened. This Agreement shall constitute escrow instructions. The parties shall execute such further instructions as Escrow Holder reasonably requires in order to clarify the duties and responsibilities of Escrow Holder. In the event of any conflict between the terms and conditions of this Agreement and such further escrow instructions, the terms and conditions of this Agreement shall control. The Escrow Instructions shall not conflict with, amend, or supersede any provision of this Agreement.

2.4Escrow Trust Accounts. All funds received in the Escrow shall be deposited in an escrow trust account specifically opened for this transaction, and all disbursements shall be made by check or, at the option of Buyer, wire transfer of Escrow Holder from such account.

Escrow Holder shall deposit all of Buyer’s money into an interest-bearing account with all interest accruing to Buyer until the Close of Escrow. At the option of Buyer, said interest may be used toward the Purchase Price.

2.5Conduct of Escrow. Escrow Holder is hereby authorized and instructed to conduct the Escrow in accordance with this Agreement, the Escrow Instructions, and applicable law, including any reporting requirements of the State of California and the Internal Revenue Service.

2.6Condition of Title.

2.6.1 Within five (5) business days after the Effective Date, Seller shall deliver to Buyer a copy of a current standard coverage preliminary title report issued by First American Title Company (“Title Company”) showing the condition of title to the Property, accompanied by copies of all documents referred to in the report (collectively, “PTR”).

2.6.2 Buyer shall have forty-five (45) days following the Effective Date within which to deliver to Seller written notice of Buyer’s disapproval or conditional approval of title as shown on the PTR (“Disapproved Exceptions”). Buyer’s failure to provide the notice on or before such date shall constitute Buyer’s approval of the condition of title as shown on the PTR.

2.6.3 If Buyer timely notifies Seller of its Disapproved Exceptions, Seller shall

Page 7 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 296 of 959 4 notify Buyer in writing on or before the fifty-fifth (55 th) day after the Effective Date that:
(a) Seller has removed the Disapproved Exceptions from title (or met Buyer’s conditions for approval of a title exception); or (b) Seller is covenanting to do so as of or before Closing; or (c) Seller will not remove (or will not meet the conditions of approval of) specified Disapproved Exceptions. Failure to address Disapproved Exceptions in any notice, or failure to give such a notice, shall constitute Seller’s statement that it will not remove or otherwise address the Disapproved Exceptions.

2.6.4 If Seller does not remove or covenant to remove (or does not meet or covenant to meet) the conditions of approval of any Disapproved Exceptions, Buyer shall have the right to terminate this Agreement on or before the Contingency Date or to waive its objection to the Disapproved Exceptions in question and proceed to Closing as Buyer’s sole and exclusive remedy. Buyer’s failure to provide written notice of termination on or before the Contingency Date shall constitute Buyer’s waiver of its disapproval of the Disapproved Exceptions. In the case of Buyer’s waiver (or deemed waiver) of Disapproved Exceptions, Seller shall have no obligation to remove or otherwise address the Disapproved Exceptions from title and such waived Disapproved Exceptions shall be deemed approved.

2.6.5 In this Agreement, the term “Permitted Exceptions” means: (a) installments of general and special real property taxes and assessments not then delinquent, (b) any encumbrance arising from the acts or omissions of Buyer, (c) any liens due to Buyer or affiliated or related agencies (“Buyer’s Liens”), and (d) any other exception showing on the PTR other than the Disapproved Exceptions that Seller removes or covenants to remove.

2.6.6 At Closing, Buyer shall receive a CLTA Owner’s Coverage Policy of Title Insurance (“Title Policy”), together with all endorsements requested by Buyer, issued by the Title Company, in the amount of the Purchase Price. The Title Policy shall show title to the Property vested in the Buyer free and clear of all liens, encumbrances, assessments, and taxes. Any exceptions to title representing monetary liens or encumbrances are hereby disapproved by Buyer, and Escrow Holder is hereby authorized and instructed to cause the reconveyance of any such monetary exceptions at or prior to the Close of Escrow. If a supplemental report is issued prior to the Close of Escrow which shows new matters, Buyer reserves the right to request any new matters removed from the Title Policy, in accordance with the provisions of this Section 2.6.

2.7Reports, Studies, and Agreements. Within fifteen (15) calendar days of the Effective Date, Seller will provide Buyer with copies of any reports, studies, maps or agreements affecting the Property, if any, in Seller’s possession, including but not limited to geotechnical and soils reports, surveys, environmental reports, flood hazard or earthquake seismic studies and other reports, studies, maps or agreements affecting the Property, to the extent Seller has any such copies.

ARTICLE III

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3.1Closing. Subject to the satisfaction of any contingencies described herein, Escrow Holder shall close this Escrow by recording the deed(s) and other documents required to be recorded and by disbursing the funds and documents in accordance with this Agreement and the Escrow Instructions.

3.2Closing Date. Escrow shall close on or before sixty (60) days following the Effective Date (“Close of Escrow”). If the Escrow is not in a condition to close by the Close of Escrow, any party who is not then in default, upon notice in writing to the Escrow Holder and the other party, may demand the return of their documents and/or money and cancellation of the Escrow. Unless objected to in writing within ten (10) days from the receipt of the notice of cancellation, Escrow will automatically be canceled. Notwithstanding the foregoing, Escrow may be extended upon mutual agreement of the parties for such time the parties deem necessary to effectuate the intent of the parties.

3.3Closing Documents.

3.3.1 Seller, prior to the Close of Escrow, shall deliver to Escrow Holder each of the following items, the delivery of each of which shall be a condition to the performance by Buyer of its obligations under this Agreement:
(a) a grant deed conveying the Property to Buyer, subject only to Permitted Exceptions;
(b) executed Federal and State nonforeign affidavits with respect to Seller;
(c) all additional documents, instruments which may be
reasonably necessary for the Close of Escrow and to
consummate the sale of the Property in accordance with the terms of this Agreement;
(d) all sums that Seller is required under this Agreement to deliver to Escrow Holder;
(e) written acknowledgement pursuant to Section 3.9 that the Property is 45250 Smurr Street;
(f) copies of all existing lease agreements for tenants occupying the property, including any amendments or
addenda;
(g) copies of the Seller’s services agreements pertaining to the maintenance of the property;

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Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 298 of 959 6 (h) copies of all relevant insurance policies covering the property, including property insurance, liability insurance, and any other applicable policies; and
(i) disclose all utility bills and expenses associated with the property, such as water, electricity, gas, and any
maintenance costs.

3.3.2 Buyer, prior to the Close of Escrow, shall deliver to Escrow Holder each of the following items, the delivery of each of which shall be a condition to the performance by Seller of its obligations under this Agreement:
(a) the Purchase Price to be paid to Seller; and
(b) all additional documents and instruments which may be reasonably necessary for the Close of Escrow and to
consummate the sale of the Property in accordance with the terms of this Agreement.

3.3.3 Service Contracts. On or before the Close of Escrow, Seller shall, at its sole cost and expense, terminate: (i) all Service Contracts, except for any Service Contracts which Buyer elects (in its sole discretion) to assume, by written notice to Seller 30 days prior to the Close of Escrow (all such Service Contracts which Buyer elects to assume, together with any new Service Contracts entered into by Seller which Buyer elects to assume, collectively, the "Assumed Contracts"); and (ii) any agreements with respect to the provision of any type of management services and leasing services for the Property. Seller shall indemnify, defend, and hold Buyer harmless from and against any and all liability, claims, counterclaims, actions, damages, judgments, penalties, costs, and expenses (including without limitation, reasonable attorneys' fees) in connection with any liability arising under or in any way relating to the Service Contracts (other than the Assumed Contracts), the termination thereof, and the release by the counterparty thereto.
(a) Seller shall transfer all Seller's right, title, and interest in and to the Assumed Contracts.
(b) On or before the Close of Escrow, Seller shall provide to Buyer evidence of termination of all Service Contracts, except for the Assumed Contracts, together with proof of payment in full by Seller of any and all liabilities, fees, costs, or other expenses of Seller resulting from the Service Contracts, the termination thereof, and the release of the counterparties thereto.

3.3.4 Since Buyer is a public entity, pursuant to California Government Code Section 27281, Escrow Holder must secure from Buyer and attach to any deed a certificate of acceptance executed by Buyer or its authorized employees, officers, or agents prior to the recording of any deed.

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Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 299 of 959 7 3.4 Conditions to the Close of Escrow. Buyer’s obligation to proceed with the transaction contemplated by this Agreement is subject to the satisfaction of all of the following conditions precedent, which are for Buyer’s benefit and may be waived only by Buyer:

3.4.1 Seller shall have performed all agreements to be performed by Seller hereunder, including a walk-through as set forth Section 3.9 that confirms that the Property is in as is condition that parties to this Agreement have so agreed;

3.4.2 As of the Closing Date, there shall have been no adverse changes in the physical condition of, or title to, the Property;

3.4.3 Title Company shall have issued or shall have committed to issue the Title Policy to Buyer for the amount of the Purchase Price showing fee title to the Property to be vested in Buyer, subject only to the title exceptions in the preliminary report.

3.5 Escrow Holder, upon notice by Buyer of a failure of a condition shall promptly return to Buyer all funds (and all interest accrued thereon) and documents deposited by Buyer in escrow and to return to Seller all documents deposited by Seller in Escrow, unless the parties mutually agree in writing to rectify the failure of the condition within a specified timeframe.

3.6Mortgages and Deeds of Trust. Any and all monies payable under this Agreement, up to and including the total amount of unpaid principal and interest on any note secured by a mortgage or deed of trust, or other security instrument if any, shall, upon demand, be made payable to the mortgagee or beneficiary entitled thereunder; and such mortgagee or beneficiary shall be required to furnish Buyer with good and sufficient receipt showing said monies were credited against the indebtedness secured by said mortgage, deed of trust, or other security instrument. Escrow Holder shall notify the Title Company of such payments and secure and cause any necessary full or partial conveyances to be prepared, signed, and recorded as required by the Title Company to eliminate any such encumbrances or exceptions from the Title Policy issued pursuant to this Agreement.

3.7Taxes and Other Liens. Escrow Holder is authorized and instructed to comply with the following tax proration procedures:

3.7.1 Payment of Unpaid Taxes: Pay and charge Seller for any unpaid delinquent taxes and/or any penalties and interest thereon, and for any delinquent or non- delinquent assessments or bonds against the Property subject to the provisions of Section

2.1 above.

3.7.2 Tax Proration: For purposes of tax proration, Escrow Holder will apportion all current taxes at “the date of apportionment” for public agency acquisitions as defined in California Revenue and Taxation Code Section 5082. Since possession is being granted pursuant to this Agreement at the Close of Escrow that date will be the “date of apportionment.”

3.7.3 Ad Valorem Taxes: Seller understands and agrees pursuant to California

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Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 300 of 959 8 Revenue and Taxation Code Section 5083 that when property is acquired by Buyer (a public entity) that any lien on the property for ad valorem taxes is extinguished as a matter of law upon the final acquisition of the property and the lien immediately transfers and attaches to the proceeds constituting the Purchase Price.

3.7.4 No Cancellation of Unpaid Taxes and Penalties: Subject to the provisions of Section 2.1 above, Seller understands and agrees pursuant to California Revenue and Taxation Code Section 5084 that no cancellation shall be made of all or any portion of any unpaid taxes or any penalties or costs levied for prior tax years that constitute a lien at the time of acquisition of the Property. Such unpaid taxes, penalties, and costs shall be paid through Escrow, or if unpaid for any reason, shall be transferred to the unsecured tax roll pursuant to Section 5090 of the California Revenue and Taxation Code and are collectible solely from Seller.

3.7.5 Proration of Current Taxes: From the date that tax information is available, that portion of the current taxes and any penalties and costs that are allocable during Seller’s ownership of the Property up to and including the date of apportionment, if unpaid, shall be paid through Escrow. If such taxes are not paid, Buyer shall not in any event be responsible or liable for such taxes and such taxes shall be transferred to the unsecured roll and be solely collectable from Seller.

3.7.6 Notice to County Tax Collector: Buyer shall be solely responsible for providing notice of this acquisition to the County Tax Collector and to any public entities, whose taxes are not collected by the County Tax Collector but who at this time exercise the right of assessment and taxation pursuant to California Revenue and Taxation Code Section 5091.

3.7.7 Liens: Subject to the provisions of Sections 2.1 and 2.6 above, any and all liens assessed against the Property shall be deducted from and paid out of the Purchase Price.

3.8 Title and Escrow Costs. Seller shall pay all the costs for a CLTA standard form title policy, one-half of the escrow fees at $1,549, and all recording costs incurred herein, all reconveyance fees, trustees fees, or forwarding fees, and prepayment charges for any full or partial reconveyance or full or partial release of any mortgage or deed of trust. Buyer shall be responsible for one-half the escrow fees at $1,549, the additional cost for an ALTA owner’s title policy and associated costs if obtained by Buyer. The parties acknowledge that Buyer is exempt from the payment of documentary.

3.9Brokerage Commission. Polo Doria (License No’s. DRE # 00880756 and CORP DRE # 01048055 ) (“Broker”) is the broker of record for Buyer and Seller and has been engaged in the transaction contemplated by this Agreement. Buyer shall be responsible for paying 1% of the brokerage commission of the Broker while Seller shall be responsible for, and pay, 3% of the brokerage commission of the Broker. Seller shall indemnify, defend, protect, and hold harmless the Buyer, from and against all claims arising from or in connection with communications or agreements with any agent, broker, finder, or similar person or entity in connection with the

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3.10Closing Statement. Each of the parties hereto hereby authorizes and instructs Escrow Holder to release a copy of such party’s closing statement to the other party, the purpose being to provide full disclosure to the other party of all disbursements made on behalf of such party.

3.11Walk-Through. Three (3) business days prior to the Close of Escrow, Seller and Buyer shall walk-through the Property located at 45250 Smurr Street. If following the walk- through, the Property is acceptable to Buyer, Buyer shall provide written notice to Seller, acknowledging such. If following the walk-through, the Property is not acceptable to Buyer, Buyer may terminate this Agreement pursuant to Article VIII. Seller shall be responsible for, and pay, relocation costs of any tenant or occupant, if applicable, and shall indemnify, defend, protect, and hold harmless the Buyer, from and against all claims arising from or in connection with Seller’s eviction and/or removal of any tenants and/or occupants or in connection with the transaction described herein.

ARTICLE IV

RIGHT OF ENTRY AND DAMAGE TO PROPERTY

4.1Right of Entry. After Seller’s execution of this Agreement by the parties, and during Escrow, Seller grants to Buyer, its agents, employees or nominees, the right to enter into and upon the Property for the purpose of conducting soil, environmental and engineering studies, and such further engineering, grading, archeological, geological, or survey work as may be required for the preparation by Buyer of its development plans for the Property. Buyer shall give Seller reasonable notice of such entry and shall not unreasonably interfere with any occupant’s use of the Property or any of Seller’s other operations on the Property. Buyer shall keep the Property free and clear of any liens or encumbrances that may arise out of Buyer’s inspection of and activities on the Property. All costs, expenses, liabilities or charges incurred in or related to the performance of any and all of such studies and work on the Property, the preparation by Buyer of any plans or maps for the development or use of the Property, and the cost of filing, recording reports, plans, maps, or other documents related thereto shall be at the sole cost and expense of and shall by paid by Buyer. Buyer hereby agrees to repair any damage done to the Property by Buyer, its agents, employees, representatives, personnel, nominees, or assigns, and Buyer shall restore the Property to the same or similar condition as existed on the date of Buyer first exercised this right of entry, if this transaction is terminated. Buyer shall not have any such obligation if Escrow closes and title to the Property vests in Buyer. The right to enter the Property shall be co-extensive with the period during which Escrow is open, or any extension thereof.

4.2Material Change, Destruction or Damage. The closing of this Escrow is contingent upon the fact that no material change shall have occurred with respect to the Property that has not been approved in writing by Buyer. For purposes of this Agreement, a “material change” shall be a change, not caused by action or inaction on the part of Buyer, its agents, employees, representatives, personnel, nominees, or assigns in the status of the use, occupancy,

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Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 302 of 959 10 tenants, or condition of the Property that occurs after the Effective Date of this Agreement. In the event there is a material change to the Property after the Effective Date, Buyer may purchase the Property with a credit against the Purchase Price otherwise due hereunder equal to the amount of any insurance proceeds actually collected by Seller prior to the Close of Escrow as a result of any such material change. Seller agrees to maintain a casualty insurance policy with respect to the Property in full force and effect until the Close of Escrow.

ARTICLE V

WAIVER AND RELEASE

5.1Acknowledgment of Full Benefits. By execution of this Agreement, Seller, on behalf of itself and its heirs, executors, administrators, successors and assigns, hereby acknowledges that this Agreement provides full payment for the acquisition of the Property by the Buyer, and Seller hereby expressly and unconditionally waives any and all claims for damages, improvements, relocation assistance benefits, severance damages, interest, loss of goodwill, claims for inverse condemnation or unreasonable pre-condemnation conduct, or any other compensation or benefits, other than as already expressly provided for in this Agreement, it being understood that this is a complete and full settlement of all acquisitions claims, liabilities, or benefits of any type or nature whatsoever relating to or in connection with the acquisition of the Property.

5.2Acknowledgment of Just Compensation. The parties acknowledge and agree that the consideration paid to Seller shall be deemed the fair market value and total amount of “Just Compensation” for the Property. Seller, on behalf of itself and its heirs, executors, administrators, successors and assigns, hereby fully releases Buyer, its successors, agents, representatives, and assigns, and all other persons and associations, known or unknown, from all claims and causes of action by reason of any damage which has been sustained, or may be sustained, as a result of Buyer’s efforts to acquire the Property or to construct works of improvement thereon, or any preliminary steps thereto.

5.3Waiver and Release. The parties hereby acknowledge that they have had the opportunity to speak with or have been advised by an attorney and are familiar with the provisions of California Civil Code section 1542, which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH

THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS

OR HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,

WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Seller and Buyer each acknowledges that it may have sustained damage, loss, costs, or expenses which are presently unknown and unsuspected, and such damage, loss, costs, or expenses which may have been sustained, may give rise to additional damage, loss, costs, or expenses in the future. Nevertheless, Seller and Buyer each hereby acknowledges that this Agreement has been negotiated and agreed upon in light of that situation, and hereby expressly waives any and all

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AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 303 of 959 11 rights which they may have under California Civil Code Section 1542, or under any statute or common law or equitable principal of similar effect. This waiver shall not supersede any of the provisions of this Agreement or the rights of the parties hereto to enforce this Agreement in law or equity.

5.4Waivers. Seller hereby waives the right to further and greater compensation and to have the adequacy of compensation determined in a court of law or equity, by a judge or a jury. Seller understands and knowingly agrees that this waiver shall extend to constitutional claims of whatever kind or nature that may be brought under the California and United States Constitutions and the federal civil rights statutes including, without limitation, claims arising under 42 U.S.C. Section 1983. Seller hereby further waives the right to raise affirmative defenses and to attack by way of answer, complaint or collaterally, the Buyer’s right to acquire the property for public uses and purposes. These acknowledgments, waivers, and releases shall survive the Close of Escrow.

ARTICLE VI

REPRESENTATIONS AND WARRANTIES

6.1Seller Representations, Warranties and Covenants. Seller hereby represents, warrants, and covenants to Buyer as of the date of this Agreement, and upon the Close of Escrow, as follows, all of which shall survive the Close of Escrow, unless otherwise stated below:

6.1.1 Authority: Seller is the owner of the Property and has the full right, power and authority to sell, convey and transfer the Property to Buyer as provided herein, and to perform Seller’s obligations hereunder. The person signing this Agreement and any documents and instruments in connection herewith on behalf of Seller has full power and authority to do so.

6.1.2 Bankruptcy: There are no attachments, assignments for the benefit of creditors, receiverships, conservatorships or voluntary or involuntary proceedings in bankruptcy or any other debtor relief actions contemplated by Seller or filed by Seller, or to the best of Seller’s knowledge, pending in any current judicial or administrative proceeding against Seller. Further, Seller has no notice or knowledge that any tenant of the Property is the subject of a bankruptcy proceeding.

6.1.3 Other Agreements: Seller has not entered into any other written contracts or agreements for the sale or transfer of any portion of the Property.

6.1.4 Condition of Property: Seller warrants and covenants, through Close of Escrow, that through the date possession is made available to Buyer, the Property shall be maintained in the same condition as upon the Effective Date of this Agreement.

6.1.5 Violation of Codes: Other than code violations, if any, to be paid out of the Purchase Price, Seller warrants that Seller has no actual knowledge of any notice of

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Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 304 of 959 12 any violations of city, county, state, federal, building, zoning, fire, health codes or ordinances, or other governmental regulations filed or issued against the Property. Seller further warrants that it has no actual knowledge of any aspect or condition of the Property which violates applicable laws, rules, regulations, codes, or covenants, conditions or restrictions, or of improvements or alterations made to the Property without a permit where one was required, or of any unfulfilled order or directive of any applicable governmental agency, or of any casualty insurance company that any work, investigation, remediation, repair, maintenance or improvement is to be performed on the Property.

6.1.6 Zoning Changes: Intentionally deleted.

6.1.7 Geologic Condition: Seller represents that it has no actual knowledge of surface cracking or subsidence or other geologic condition in the immediate vicinity of the Property that would have a material adverse effect on Buyer’s acquisition of the Property. Further, Seller has no actual knowledge of any report prepared by any governmental agency relating to such geologic conditions as to the Property or the proximate area around the Property.

6.1.8 Maintenance of the Property: Except as provided in other provisions hereof dealing with destruction, damage or loss, Seller shall maintain the Property until the Close of Escrow in its present condition, ordinary wear and tear excepted.

6.1.9 Changes in Agreements: Prior to Close of Escrow, Seller will not violate or modify, orally or in writing, any existing lease or other agreement, or create any new leases or other agreements affecting the Property without Buyer’s prior written consent.

6.1.10 Possessory Rights: Seller warrants that no one will, at the Close of Escrow, have any right to possession of the Property, except as disclosed by this Agreement, or otherwise in writing to Buyer.

6.1.11 Mechanics’ Liens: To Seller’s actual knowledge there are no unsatisfied mechanic’s or materialman’s lien rights concerning the Property.

6.1.12 Actions: To the best of Seller’s knowledge, no actions suits, or proceedings are pending or threatened before any governmental department, commission, board, bureau, agency, court, or instrumentality that would affect the Property or the right to occupy or utilize the Property, which has not been disclosed to Buyer.

6.1.13 Notice of Changes: Seller will promptly notify Buyer in writing of any material change affecting the Property that becomes known to Seller prior to the Close of Escrow.

6.2.Condition Precedent. The material truth and accuracy of the foregoing representations and warranties shall be a condition precedent of Buyer’s obligations hereunder.

At least five (5) calendar days prior to the Close of Escrow, Seller shall notify Buyer of any facts

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ARTICLE VII
BUYER’S REPRESENTATIONS AND WARRANTIES

7.1Buyer’s Representations and Warranties. Buyer hereby represents, warrants, and covenants to Seller as of the date of this Agreement, and upon the Close of Escrow, as follows:

7.1.1 Authority: Buyer is a municipal corporation and has the full power and authority to enter into and carry out the agreements contained in, and the transactions contemplated by this Agreement. The persons signing this Agreement and any documents and instruments in connection herewith on behalf of Buyer have full power and authority to do so.

7.1.2 Bankruptcy: There are no attachments, assignments for the benefit of creditors, receiverships, conservatorships or voluntary or involuntary proceedings in bankruptcy or any other debtor relief actions contemplated by Buyer or filed by Buyer, or to the best of Buyer’s knowledge, pending in any current judicial or administrative proceeding against Buyer.

7.1.3 Ratification: This Agreement is subject to the approval by the City Council of the City of Indio. In the event the City Council fails to approve this Agreement, there shall be no liability on the part of the Buyer and this Agreement shall be of no force and effect.

ARTICLE VIII

DEFAULT AND TERMINATION

8.1Default. A party shall be deemed in default hereunder if it fails to meet, comply with, or perform any covenant, agreement, or obligation on its part required within the time limits and in the manner required in this Agreement for any reason other than a default by the other party hereunder or termination of this Agreement prior to Close of Escrow.

8.2Opportunity to Cure. No act, failure to act, event or circumstance which might be deemed to be a default by either party shall be deemed to be a default under any of the provisions of this Agreement, unless and until, notice thereof is first given by the non-defaulting party to the party alleged to be in default and said party fails to cure the alleged default within fifteen (15) calendar days in the case of a non-monetary default, or five (5) calendar days in the case of a monetary default.

8.3Termination upon Default. After notice and an opportunity to cure, if the defaulting party fails to cure the default, the non-defaulting party may terminate this acquisition by giving written notice to the defaulting party and the Escrow Holder. Upon receipt of the notice to terminate, the Escrow Holder shall immediately cancel Escrow and return all money

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Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 306 of 959 14 and/or documents to the respective party.

8.4Buyer’s Termination. If Buyer exercises its rights under this Agreement to terminate this acquisition, Buyer shall provide written notice to the Seller and Escrow Holder.

Upon receipt of said notice, Escrow Holder shall immediately cancel Escrow and return all money and/or documents to the respective party.

8.5Seller’s Termination. Seller may not terminate or rescind this Agreement unless such termination or rescission is in writing to Buyer, and Buyer has in writing agreed to such termination or rescission, which agreement shall not be unreasonably withheld and may not be withheld in the case of Buyer’s breach of its obligation to timely close the transactions contemplated under this Agreement.

ARTICLE IX

MUTUAL AGREEMENTS

9.1Studies. Seller hereby authorizes Buyer, its agents, employees, contractors, and representatives, at Buyer’s sole cost and expense, to conduct such necessary cultural, environmental phase I, lead base paint and asbestos studies as Buyer may require. In connection with such studies, Seller hereby grants to Buyer, its agents, employees, contractors, and representatives, a right of entry as more specifically set forth in Section 4.1 above.

9.2CEQA Compliance. Buyer and Seller understand, acknowledge, and agree that Buyer’s future use of the Property is conditioned upon compliance with the California Environmental Quality Act (“CEQA”). (14 Cal. Code Regs. §15004(b)(2)(A))

9.3Soil Inspection. Subject to Section 4.1, Buyer shall have the right to obtain a soil test report concerning the Property. Said report shall be obtained at Buyer’s discretion and expense. Buyer shall indemnify and hold Seller harmless from any liability arising from Buyer’s soils investigation and keep the property free from any liens, including mechanics liens, arising from persons or agents authorized to perform such soils investigation on behalf of Buyer.

9.4Abandonment of Personal Property. Unless special arrangements have been made by the parties, any personal property left on the Property at the Close of Escrow shall be deemed abandoned and the property of the Buyer. Seller shall reimburse Buyer upon receipt from Buyer of an invoice evidencing the cost of said removal, less any offsets, if any. Seller agrees that Buyer may dispose of the personal property without notice to the Seller and without sale at a public auction. Seller expressly waives the requirements of California Civil Code Section 1980, et seq., relating to the disposition of personal property remaining on the premises at the termination of a tenancy, and to the extent applicable, the provisions of California Code of Civil Procedure Section 1174.

9.5Other Agreements Affecting Property. Seller and Buyer have made this Agreement upon the belief that there are no other agreements except this Agreement which will affect the Property beyond the Close of Escrow. If Seller determines that such agreements exist

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Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 307 of 959 15 which are not revealed herein, Seller shall provide Buyer with a copy immediately upon Seller’s learning of its existence. Buyer may thereafter, prior to the Close of Escrow, either terminate this acquisition or modify the offered Purchase Price. After Close of Escrow, Seller shall be liable to Buyer for any damage or expense including reasonable attorney’s fees and costs incurred by Buyer by reason of such undisclosed agreements.

9.6 Other Arrangements: The Seller shall have the option to remain in one of the existing suites for a period of two (2) years, subject to a negotiated lease, with no rent payable until June 30, 2025. The Seller shall provide the Buyer with the existing leases, and the City shall have the discretion to decide whether the current tenants will continue occupying the premises or not. The decision lies exclusively with the Buyer. The Buyer shall be entitled to receive the rental income from the existing leases and retains the sole discretion to re-lease those two (2) office spaces to other tenants as they deem fit. Leases will be modified to waive relocation benefits and any new lease will include a clause waiving such benefits for the current tenants if applicable.

9.7Contacts with Third Parties. Seller shall make its employees and contractors available for information relating to the Property. Buyer shall have the right to contact and interview Tenants and other third parties with respect to the Property. Buyer shall give Seller advance notice of the identity of the company or persons who will perform any tenant interviews or contacts. Seller shall cooperate and coordinate with Buyer to carry out the same.

ARTICLE X

ASSIGNMENT OF LEASES AND RENTS

10.1 Leases. Seller shall transfer all Seller's right, title, and interest in and to those certain leases, lease amendments, guarantees, exhibits, addenda, and riders thereto and any other documents creating a possessory interest in the Property with any persons, parties, or entities leasing, using, or occupying the Property or any part of either (collectively, the "Tenants") pursuant to the Assignment and Assumption of Leases described in this Article.

10.2Absolute Assignment of Leases and Rents. Seller hereby absolutely, presently, irrevocably, and unconditionally grants, assigns, and transfers to Buyer all of Seller's present and future right, title, interest, and estate in, to, and under all current and future Leases and Rents, and the absolute, present, irrevocable, and unconditional right to receive, collect, and possess all Rents. This Assignment constitutes an absolute, present, irrevocable, and unconditional assignment of Leases and Rents. Buyer shall not be required to collect any delinquent Rents on behalf of Seller or initiate any action to recover any Rent payable for period prior to Close of Escrow. All Rents received by Seller after Close of Escrow shall be immediately delivered to Buyer.

10.3Buyer's Rights After Close of Escrow. Buyer shall have the right, but not the obligation, at its option and in addition to other rights and remedies available to Buyer under law, acting personally or through an agent to take any or all of the following actions to the fullest extent permitted by law.

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Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 308 of 959 16 (a)Direct Payment of Rent. Seller shall notify the tenant(s) of the Property or any other Person that all Leases have been assigned to Lender and that all Rents are to be paid at the direction of Lender;
(b)Modify Lease Obligations. Settle, compromise, release, extend the time of payment for, and make allowances, adjustments, and discounts of any Rents or other obligations in, to, and under Leases;
(c)Rent the Property and Modify Leases. Lease all or any part of the Property and/or modify, amend, renew, or terminate any Leases.

10.4Notice to Tenant(s) Seller shall promptly notify the Property's tenant(s) of this Assignment and the interests granted to Buyer herein. Such notice shall include a copy of this Assignment and provide written authorization to tenants to follow the instructions of Buyer.

Seller hereby authorizes Buyer to send written notice to any current tenant, notifying such tenant that:
(a) Rents due from such tenant from the date of Seller's notice shall be paid to Buyer at the address and in the manner that Buyer shall so direct in said notice; and (b) All obligations required to be performed by such tenant under the applicable Lease shall be for the benefit of Buyer immediately following the close of escrow.

10.5Reliance by Tenants. Seller acknowledges and agrees that each tenant of the Property:
(a) May rely upon any notice from Buyer with respect to the payment of Rents;
(b) Shall not be required to investigate or determine the validity or accuracy of any notice, the existence of any Event of Default, or the validity or enforceability of this Purchase and Sale Agreement;
(c) Shall incur no liability to Buyer for following: the instructions of Seller notwithstanding any notice or directions from Buyer the contrary.

10.6Seller's Indemnity of Tenants. Borrower hereby indemnifies, defends, and holds each tenant harmless from and against any and all losses, claims, damages.

10.7Seller's Covenants to Buyer. In furtherance of the rights and interests granted to Buyer hereunder, Seller agrees:
(a) Not to interfere with Buyer's collection of Rents and to use commercially reasonable efforts to cause compliance with all instructions or directions from Buyer;

Page 20 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 309 of 959 17 (b) To take such further actions and execute such further documents as Buyer reasonably requests to carry out the intent of this Purchase and Sale Agreement and to protect the interests created hereunder, all of which shall be performed at Seller's sole cost and expense;
(c) Buyer shall have no liability to Seller or any tenant for the payment or return of any security deposit under any Lease unless and to the extent that such security deposit has been paid to and received by Lender; and

10.8Seller's Indemnity to Buyer. Seller agrees to indemnify, defend, and hold Buyer harmless from and against any and all losses, claims, damages, or liabilities arising out of any claim by a tenant with respect to this Purchase and Sale Agreement, including the payment or return of any security deposit, and the exercise of any right granted to Buyer hereunder.

ARTICLE XI

MISCELLANEOUS

11.1Exhibits. All Exhibits attached hereto are a part of this Agreement for all purposes and are incorporated herein.

11.2Assignment. Neither this Agreement nor any rights under this Agreement may be assigned by any party without the prior written consent of the other party.

11.3Binding Effect. This Agreement shall be binding upon and inure to the benefit of Seller and Buyer, and their respective successors, heirs, agents and permitted assigns.

11.4Captions. The captions, headings, and arrangements used in this Agreement are for convenience only and do not in any way affect, limit, amplify, or modify the terms and provisions hereof.

11.5Number and Gender of Words. Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate.

11.6Governing Law and Venue. The laws of the State of California shall govern the validity, construction, enforcement, and interpretation of this Agreement. All claims, disputes and other matters in question arising out of or relating to this Agreement, or the breach thereof, shall be decided by proceedings instituted and litigated in the state court in the County of Riverside, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county.

11.7Amendments. No subsequent agreement, representation, or promise made by either party hereto, or by or to any employees or agents of either Party shall be of any effect unless it is in writing and executed by authorized representative and bound thereby.

Page 21 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 310 of 959 18 11.8Notices. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and sent by first class United States or certified mail, postage prepaid, return receipt requested, or sent by a nationally recognized courier service such as Federal Express for overnight delivery, duly addressed to the parties as follows:

To Seller: Cipriano De La Cruz
45250 Smurr Street, 14
Indio, CA 92201
To Buyer: City of Indio
100 Civic Center Mall
Indio, CA 92201
Attention: City Clerk
Delivery of any notice or other communication hereunder shall be deemed made on the date indicated in the return receipt or courier’s records as the date of delivery or as the date of first attempted delivery, if sent by mail or courier service. Any party may change its address for purposes of this Section by giving notice to the other party and to Escrow Holder as herein provided.

11.9Entirety. This Agreement embodies the entire agreement between the parties and supersedes all prior written or oral agreements and understandings, if any, between Buyer and Seller concerning the subject matter contained herein. There are no representations, agreements, arrangements, or understandings, oral or written, between the parties hereto, relating to the subject matter contained in this Agreement which are not fully expressed herein.

11.10Severability. If any of the provisions of this Agreement, or its application to any party or circumstance, is held to be illegal, invalid, or unenforceable under present or future laws, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Agreement and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement. In lieu of such illegal, invalid, or unenforceable provision, there shall be added automatically as a part of this Agreement, a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible to make such provision legal, valid, and enforceable.

11.11Further Acts. In addition to the acts and deeds recited herein and contemplated and performed, executed and/or delivered by Sellers and Buyer, Sellers and Buyer agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered at the Close of Escrow or after the Close of Escrow any and all such further acts, deeds, and assurances as may be necessary to consummate the transactions contemplated herein.

11.12Construction. No provision of this Agreement shall be construed in favor of, or against, any particular party by reason of any presumption with respect to the drafting of this

Page 22 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 311 of 959 19 Agreement; both parties, having the opportunity to consult legal counsel, having fully participated in the negotiation of this Agreement.

11.13Time of the Essence. It is expressly agreed by the parties hereto that time is of the essence with respect to each and every provision of this Agreement.

11.14Waiver of Covenants, Conditions or Remedies. The waiver by one party of the performance of any covenant, condition or promise, or of the time for performing any act under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by such party of any other covenant, condition or promise, or of the time for performing any other act required under this Agreement. The exercise of any remedy provided in this Agreement shall not be a waiver of any other remedy provided by law, and the provisions of this Agreement for any remedy shall not exclude any other remedies unless they are expressly excluded.

11.15Nondiscrimination. The parties shall not discriminate on the grounds of race, religious creed, color, national origin, ancestry, age, physical or mental disability, medical conditions, including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, genetic information, gender, gender identity, gender expression, sex, sexual orientation, or military or veterans’ status in connection with the performance of this Agreement. The parties further agree to conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement.

11.16Date of Agreement. The date of the Agreement as used in this Agreement shall refer to the date this Agreement is signed and approved by the governing body of Buyer, as first set forth above. It is understood and agreed that no employee, officer, or director(s) of Buyer has any authority to bind the Buyer, which is a public entity, except upon prior approval by the governing body of Buyer.

11.17Counterparts. This Agreement may be executed in identical counterparts. If so executed, each of such counterparts shall, collectively, constitute one original agreement. In making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart.

11.18Agreement Not to Lease. Seller agrees not to rent, lease, license or allow any person to take possession of the Property or any portion of the Property or any building or structure located thereon, other than those parties that may be residing in the Property as of the Effective Date.

11.19 Enforcement of Agreement by Buyer. It is agreed that the rights granted to Buyer by Seller hereunder are of a special and unique kind and character, and that, if there is a breach by Seller of any material provision of this Agreement, Buyer would not have any adequate remedy at law. It is expressly agreed, therefore, that Buyer’s rights hereunder may be enforced by an action for specific performance and such other equitable or legal relief as is provided under the laws of the State of California.

Page 23 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 312 of 959 20 11.20Third Parties. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement; nor shall it be construed as creating, any benefits in favor of any tenant or occupant of the Property, or anyone claiming rights or benefits through any such tenant or occupant.

11.21Attorneys’ Fees. In any action between Buyer and Seller seeking enforcement of any of the terms and provisions of this Agreement, or the rights and duties of either in relation thereto, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, not limited to taxable costs, a reasonable sum for it attorneys’ and expert witness fees.

11.22Interpretation and Construction. The parties acknowledge that, in connection with negotiating and executing the Agreement, each has had its own counsel and advisors and that each has reviewed and participated in the drafting of the Agreement. The fact that the Agreement was prepared by Buyer's counsel as a matter of convenience shall have no import or significance to the construction of the Agreement. Any uncertainty or ambiguity in the Agreement shall not be construed against Buyer because Buyer's counsel prepared the Agreement in its final form. Any rule of construction that requires any ambiguities to be interpreted against the drafter shall not be employed in the interpretation of: (i) the Agreement; (ii) any exhibits or addenda to the Agreement; or (iii) any document drafted or delivered in connection with the transactions contemplated by the Agreement. Any captions or headings used in the Agreement are for convenience only and do not define or limit the scope of the Agreement.

11.23Authority to Execute Agreement. Buyer and Seller represent and warrant that the individuals who have signed this Agreement have the legal power, right and authority to enter into this Agreement so as to bind each Party for whom they sign to perform as provided herein.
[SIGNATURES ON FOLLOWING PAGE.]

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AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 313 of 959 21 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
“Buyer” “Seller”

CITY OF INDIO CIPRIANO DE LA CRUZ, AN

INDIVIDUAL
By: _________________________________
By: __________________________
Bryan H. Montgomery
City Manager
Attested to:

By: ___________________________
Name:

By: ______________________________ Title:

Sabdi Sanchez
City Clerk
Approved as to form:

By: ____________________________
Steven Graham
City Attorney

Page 25 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 314 of 959 EXHIBIT “A”

LEGAL DESCRIPTION
The land referred to herein is situated in the State of CALIFORNIA, County of RIVERSIDE, and described as follows:

LOT 10 IN BLOCK “D” OF INDIO, AS SHOWN BY MAP ON FILE IN BOOK 10, PAGE 461

OF MAPS, OF SAN DIEGO COUNTY, IN THE OFFICE OF THE COUNTY RECORDER OF

SAID COUNTY
Assessor's Parcel Number: 611-174-008

Page 26 of 26 ends

AGENDA ITEM #8.14
Approval of Purchase and Sale Agreement with Cipriano De La Cruz in the ... Page 315 of 959 City of Indio
City Council
August 16, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Carl S. Morgan, Dir. Of Economic Development Subject: Approval of a Lease Agreement with Core & Main, LP located at 82314 Market Street.

RECOMMENDATION:

Approval of a Lease Agreement with Core & Main, LP located at 82314 Market Street.

SUMMARY:

Core & Main (formerly known as Ralph Dion and Parkson Pipeline Materials and HD Waterworks Supply) located at 82314 Market Street, Indio, CA (APN 611-025-009), has leased the property since March 18, 1993. Serving the Coachella Valley and East Riverside Co unty, Core & Main is a leading specialized distributor of water, wastewater, storm drainage, fire protection products, and other related services.

BACKGROUND INFORMATION:

Core & Main, a prominent and long -standing presence in the city and a valued tenan t and a crucial business to the Indio economy since 1993. As an integral business entity, Core & Main has consistently significant making operations, its in to commitment a demonstrated excellence contributions to the city's overall economic growth and dev elopment. Over the years, the company has become an essential pillar of the local business community, fostering job creation and enhancing the commercial landscape.

Lease History:
• May 5, 1993, Ralph Dion and Parkson Pipeline Materials entered into a Lease Agreement with the city
• March 18, 1999, a Letter of Agreement was received to extend the Lease • December 18, 2003, a Letter of Agreement was received to extend the lease Lease • June 26, 2007, a Letter of Agreement was received to extend the Lease • November 14, 2008, a First Amendment to the Lease was approved by the city • July 14, 2010, a Second Amendment to the Lease was approved by the city • April 30, 2014, a Third Amendment to the Lease was approved by the city

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$53,888.40 In current year budget: Yes
AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 316 of 959 Current FY General
Fund Impact:
$53,888.40 Budget adjustment: No
Next FY Financial
Impact:
$53,888.40 Strategic Objective: Business & Job Growth Source of funds: General Fund Revenue Fund-Org-Object
Reference:
101-405205

Additional Financial Details:

General Fund Impact
Rent Revenue: $53,888.40 per year for the initial lease term.

Salient terms of the Lease Agreement are as follows:

Premises: The property is located at 82314 Market Street (Attachment 2). The property consists of approximately 1.45 acres of property.

Term: The term of the lease is five (5) years, and the tenant shall have the option of two lease extensions of three years each.

Rent: The rent shall be $4,490.70 per month for the initial five-year term, with each three-year term extension increasing by 3%.

Condition of the Premises: Tenant has examined the Premises and agrees to take possession of the Premises in an “as is” condition. The asphalt at the Premises will be resealed with black top sealer, lines repainted, and cracks and small potholes refilled with asphalt at Landlord’s responsibility and its sole expense.

ATTACHMENTS:

Attachment 1- 82134 Market St. Indio CA Lease
Attachment 2

APPROVAL(S):

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 317 of 959 1 CITY OF INDIO LEASE AGREEMENT
SINGLE-TENANT – 82314 MARKET STREET
This Lease Agreement (“Lease”), dated the 16th day of August, 2023, for reference purposes only, is made by and between the CITY OF INDIO, a California municipal corporation (“Landlord”), and Core & Main LP, a Florida Limited Partnership (“Tenant”).

Landlord and Tenant are sometimes referred to in this Lease individually as a “Party”, and collectively as “Parties.”

ARTICLE I
PREMISES; EFFECTIVE DATE; TERM; MONTHLY RENT; DEPOSIT; USE;

TENANT IMPROVEMENTS

1.1 Premises. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, in accordance with the terms and conditions of this Lease, approximately 1.45 acres of property commonly identified by Assessor’s Parcel Number 611-025-035, located at 82314 Market Street, Indio, CA 9201, as shown by the red, shaded area on Exhibit “A” entitled “Lease Plan,” together with all improvements thereto (“Premises”).

1.2 Effective Date. This Lease shall not become effective until it has been approved by the governing body of Landlord and executed by the Parties (“Effective Date”).

1.3 Term. The lease Term shall commence on the Effective Date (“Commencement Date”) and continue for a period of five (5) years thereafter and shall expire at 11:59 p.m. on the last day of the Term (“Expiration Date”) unless terminated earlier pursuant to provisions herein.

Tenant shall have two (2) options to renew the Lease for renewal periods of three (3) years each at the rental rates set forth in Section 1.5 below (“Additional Extension Terms”). Each option shall be effective only if exercised in writing at least three (3) months prior to the expiration of the then current lease Term.

1.4Due Diligence Period. Intentionally omitted.

1.5 Monthly Rent. On the Commencement Date, and on the first day of the month each month after the Commencement Date, Tenant shall pay to Landlord the following sums as Monthly Rent. Monthly Rent shall be paid in the matter specified in Section 3.1 of this Lease, entitled “Payment of Rent.”
Months Monthly Base Rent
1-60 $4,490.70
61-96* $4,625.42
97-132* $4,764.18
*Extensions (if exercised)

1.6 Security Deposit. Intentionally omitted.

Page 3 of 32 ends

AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 318 of 959 2 1.7 Permitted Use. Tenant agrees to use the Premises for the following purpose(s), and for no other purpose: storage, distribution, and sales of pipe, pipe fittings, and related plumbing and waterworks equipment and light fabrication and assembly and for any other legally permitted use.

1.8Tenant Improvements. Intentionally omitted.

ARTICLE II
CONDITION OF PREMISES; DELIVERY OF PREMISES

2.1 Condition of Premises. Tenant has examined the Premises and agrees to take possession of the Premises in an “as is” condition. Tenant hereby acknowledges: (a) that it has been advised to satisfy itself with respect to the condition of the Premises (including but not limited to the electrical and fire sprinkler systems, security, environmental aspects, seismic and earthquake requirements, and compliance with the Americans with Disabilities Act), and applicable zoning, municipal, county, state and federal laws, ordinances and regulations and any covenants or restrictions of record (collectively “Applicable Laws”) and the present and future suitability of the Premises for Tenant’s intended use; (b) that Tenant has made such investigation as it deems necessary with reference to such matters, is satisfied with reference thereto, and assumes all responsibility therefore as the same relate to Tenant’s occupancy of the Premises and/or the terms of this Lease; and (c) that neither Landlord, nor any of Landlord’s agents, has made any oral or written representations or warranties with respect to said matters other than as set forth in this Lease. Notwithstanding the foregoing, the parties acknowledge that the asphalt at the Premises needs to be resealed with black top sealer, lines repainted, and cracks and small potholes refilled with asphalt, which shall be Landlord’s responsibility at its sole expense.

As required by California Civil Code No 1938, an ADA Survey has not been conducted by a Certified Access Specialist for the Premises. A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, Landlord may not prohibit Tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of Tenant, if requested by Tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.

2.2 Delivery of Premises. Landlord agrees to use its best commercially reasonable efforts to deliver possession of the Premises to Tenant within ten (10) days of the Effective Date.

If, despite said efforts, Landlord is unable to deliver possession as agreed, Landlord shall not be subject to any liability therefore, nor shall such failure affect the validity of this Lease. Tenant shall not, however, be obligated to provide Monthly Rent or perform any other obligations under this Lease, until it receives possession of the Premises.

2.3 Landlord Access. Landlord, and its authorized agents, representatives, and employees, may enter the Premises at any time in case of emergency, and otherwise at

Page 4 of 32 ends

AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 319 of 959 3 reasonable hours, with advanced written notice to: (i) inspect the Premises; (ii) exhibit the Premises to prospective purchasers, lenders, insurers or tenants; (iii) determine whether Tenant is complying with all its obligations hereunder; (iii) take possession due to any uncured, material breach of this Lease in the manner provided herein; (iv) perform any covenants of Tenant which Tenant fails to perform after due notice to Tenant and reasonable opportunity to cure; and (v) repair, alter, or improve the Premises or any portion of the Premises, and may for such purposes erect, use and maintain scaffolding, pipes, conduits, and other structures in and through the Premises where reasonably required by the nature of the work to be performed; provided, however, that all such work shall be done as promptly as reasonably possible and so as to cause as little interference with the operation of Tenant’s business as reasonably possible. Except to the extent due to the gross negligence or willful misconduct of Landlord, its employees, agents and contractors, Tenant hereby waives any claim for damages, including but not limited to interference with business, lost profits, and any other incidental or consequential damages of any sort whatsoever, for any injury or inconvenience to or interference with Tenant’s business, any loss of occupancy or quiet enjoyment of the Premises or any other loss occasioned by such entry.

Landlord shall at all times have and retain a key with which to unlock all of the doors in or about the Premises (excluding Tenant’s vaults, safes, and similar areas designated in writing by Tenant in advance); and Landlord shall have the right to use any and all means which Landlord may deem proper to open said doors in an emergency in order to obtain entry to the Premises, and any entry to the Premises obtained by Landlord by any of said means, or otherwise, shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into or detainer of the Premises or an eviction, actual or constructive, of Tenant from the Premises or any portion thereof. No provision of this Lease shall be construed as obligating Landlord to perform any repairs, alterations, or improvements except as otherwise expressly agreed to be performed by Landlord in this Lease.

2.4 Vehicle Parking. Intentionally Omitted

ARTICLE III
PAYMENT OF MONTHLY RENT; SECURITY DEPOSIT; LATE CHARGES

3.1Payment of Rent. Monthly Rent shall be paid in advance on or before the first calendar day of each month during the Term. If the Term commences on a calendar day other than that first calendar day of the month or ends on a calendar day other than that last calendar day of a calendar month, then Monthly Rent will be appropriately prorated by Landlord based on the actual number of calendar days in such month. If the Term commences on a calendar day other than the first calendar day of a calendar month, then the prorated Monthly Rent for such month shall be paid on or before the first calendar day of the Term. Monthly Rent shall be paid to Landlord without written notice or demand, and without offset, in lawful money of the United States of America at Landlord' s address, or to such other address as Landlord may from time to time designate in writing.

3.2Rent Adjustment and Improvements. Intentionally omitted.

3.3Security Deposit. Intentionally omitted.

Page 5 of 32 ends

AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 320 of 959 4 3.4Late Payment. If Tenant fails to timely provide the Monthly Rent as set forth in Section 3.1 for three (3) consecutive or nonconsecutive months within a twelve (12) month period, Landlord may terminate this Lease with thirty (30) days’ written notice to Tenant; provided, however, that Tenant shall have the right to cure any non-payment of rent due to US Mail delivery delay within five (5) business days following written notice of non-payment from Landlord.

ARTICLE IV
USE; COMPLIANCE WITH LAWS; NON-DISCRIMINATION

4.1 Use. The Premises shall be used only for the purposes set forth in Section 1.7 and purposes incidental to that use and in accordance with the General Rules and Regulations attached hereto as Exhibit “B.” Tenant shall use the Premises in a careful, safe, and proper manner and shall not use the Premises for any disreputable business or purpose. Tenant shall not use or permit the Premises to be used or occupied for any purpose or in any manner prohibited by any applicable law, ordinance order, rule, regulation, or other governmental requirement.

Tenant shall not commit waste or suffer or permit waste to be committed in, on, or about the Premises. Tenant shall conduct its business and control its employees, agents, and invitees in such a manner so as not to create a nuisance or a risk of fire or other hazard, or that would violate, suspend, void, or increase the rate of fire or liability or any other insurance of any kind at any time carried by Landlord upon the Premises.

4.2 Signs. Any signs to be installed by Tenant shall be subject to the prior written approval of Landlord and shall be installed by a sign contractor approved by Landlord. Tenant signs in place as of the Effective Date are hereby deemed approved by Landlord. All required permits for signs shall only be obtained by the approved sign contractor who shall also be responsible for compliance with all applicable codes. Tenant shall be responsible for payment of all sign costs including installation costs, permits and costs to repair the Premises resulting from the installation or removal of such sign. Notwithstanding the foregoing, Tenant has the right to change its name or to use a “doing business as” name, and the right to change its signage in connection with any such name change or d/b/a.

4.3 Compliance with Laws. Tenant shall comply with all applicable laws, ordinances, orders, rules, regulations, and other governmental requirements relating to the use, condition, or occupancy of the Premises. The judgment of any court of competent jurisdiction or the admission of Tenant in a proceeding brought against it by any governmental entity that Tenant has violated any such governmental requirement shall be conclusive as between Landlord and Tenant.

4.4 Compliance with Environmental Laws. Tenant and the Premises shall remain in compliance with all applicable laws, ordinances, orders, rules and regulations regulating, relating to, or imposing liability of standards of conduct concerning any Hazardous Materials, or pertaining to occupational health or industrial hygiene, occupational or environmental conditions on, under, or about the Premises, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) [42 USC Section 9601 et seq.]; the Resource Conservation and Recovery Act

Page 6 of 32 ends

AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 321 of 959 5 of 1976 (“RCRA”) [42 USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (“FWPCA”) [33 USC Section 1251 et seq.]; the Toxic Substances Control Act (“TSCA”) [15 USC Section 2601 et seq.]; the Hazardous Materials Transportation Act (“HMTA”) [49 USC Section 1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [H & S C Section 25288 et seq.]; the California Hazardous Substances Account Act [H & S C Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [H & S C Section 24249.5 et seq.] the Porter-Cologne Water Quality Act [Water Code Section 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state or local law, ordinance, order, rule or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Premises, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use (“Environmental Laws”).

A. On the Commencement Date, Tenant shall provide Landlord a complete list of all Hazardous Materials (including Material Safety Data Sheets (“MSDS”) for all such Hazardous Materials) used or stored by Tenant, or any of Tenant’s Affiliates or agents, on the Premises as of the date hereof, subject to 29 CFR 1910.1200(g) and for which Tenant is obligated under applicable law to maintain an MSDS, excluding standard janitorial and office products. Throughout the Term, Tenant shall update such MSDS as chemicals stored on Premises change. During the Term, not more than once per year without cause, Tenant shall provide Landlord with an update to the list which it must maintain pursuant to 29 CFR 1910.1200(g)-(h). For purposes of this subsection (A), the term “Affiliate” shall mean any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with Tenant.

B. Should a release of any Hazardous Material occur at the Premises as a result of the acts of omissions of Tenant, or its employees, agents, suppliers, shippers, customers, contractors, or invitees, Tenant shall immediately contain, remove from the Premises, and/or properly dispose of such Hazardous Materials and any material contaminated by such release, and remedy and mitigate all threats to health and the environment relating to such release, all in accordance with Environmental Laws. Tenant shall promptly notify Landlord in the event of any reportable Hazardous Materials spill or release on the Premises, regardless of the quantity or substance involved, by the fastest and most reliable means available at the time of the incident, including but not limited to telephone, email, or written notice delivered in person to Landlord.

Such notification shall include: (i) a description of the Hazardous Material(s) involved in the spill or release; (ii) the location within the Premises where the spill or release occurred; (iii) the date and time of the incident; (iv) any known or suspected risks or hazards associated with the spilled material(s); and (v) any actions already taken to contain or mitigate the spill or release.

Tenant shall cooperate fully with Landlord and any relevant authorities in investigating and

Page 7 of 32 ends

AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 322 of 959 6 remediating the Hazardous Materials spill or release. Tenant shall promptly provide any additional information or documentation reasonably requested by Landlord or authorized regulatory agencies. If required by applicable laws or regulations, Tenant shall also promptly report the Hazardous Materials spill or release to the appropriate government agencies or regulatory bodies.

C. Tenant shall immediately notify Landlord in writing and provide copies upon receipt of all written complaints, claims, citations, demands, inquiries, reports, or notices relating to the condition of the Premises or compliance with Environmental Laws. Tenant shall promptly cure in compliance with applicable Environmental Laws any such condition for which Tenant is responsible under this Lease and, to the extent such actions and proceedings relate to Tenant or conditions for which Tenant is responsible under this Lease, use commercially reasonable efforts to have the same dismissed with prejudice. Tenant shall keep the Premises free of any lien imposed pursuant to and Environmental Law and for which Tenant is responsible under this Lease.

D. For the purpose of Section 4.4, the term “Hazardous Materials” shall include, without limitation, substances defined as “hazardous substances,” “hazardous materials,” “toxic substances,” “hazardous wastes,” “extremely hazardous wastes,” or “restricted hazardous wastes,” or stated to be known to cause cancer or reproductive toxicity, under any Environmental Law. Tenant shall not permit to occur any release, generation, manufacture, storage, treatment, transportation, or disposal of any Hazardous Materials, provided that Tenant may store, transport, use and sell Hazardous Materials in the ordinary course of its exercise of the permitted use, provided that all such conduct shall be in compliance with applicable Environmental Laws. Tenant shall promptly notify Landlord in writing if Tenant has or acquires notice or knowledge that any Hazardous Materials have been or are threatened to be released, discharged, disposed of, transported, or stored on, in, under, or from the Premises other than as permitted under this Lease; and if any Hazardous Materials are found on the Premises due to the acts or omissions of Tenant, its employees, contractors, agents or invitees, Tenant, at its sole cost and expense, shall immediately take such action as is necessary to detain the spread of and remove the Hazardous Material to the complete satisfaction of Landlord and the appropriate governmental authorities.

E. Landlord shall, at Landlord’s sole cost and expense, have the right at all reasonable times and from time to time to conduct environmental audits of the Premises, and Tenant shall cooperate in the conduct of those audits.

F. If Tenant fails to comply with the forgoing covenants pertaining to Hazardous Materials, Landlord may cause the removal (or other cleanup acceptable to Landlord) of any Hazardous Materials from the Premises. The costs of Hazardous Materials removal and any other cleanup (including transportation and storage costs) will be owing under this Lease, whether or not a court has ordered the cleanup, and those costs will become due and payable on demand by Landlord. Tenant shall give Landlord, its agents and employees, access to the Premises to remove or otherwise cleanup any Hazardous materials. Landlord, however, has no affirmative obligation to remove or otherwise cleanup any Hazardous Materials, and this Lease shall not be construed as creating any such obligation.

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 323 of 959 7 G. For any Hazardous Material brought on site due to Tenant’s occupancy, Tenant shall indemnify, defend (with counsel reasonably acceptable to Landlord and at Tenant’s sole cost), and hold Landlord and Landlord’s elected and appointed officials, officers, employees, agents, successors and assigns free and harmless from and against all direct losses, liabilities, obligations, penalties, claims, litigation, demands, defenses, costs, judgments, suits, proceedings, damages, disbursements or expenses of any kind (including reasonable attorneys’ and experts’ fees and expenses and fees and expenses incurred in investigating, defending or prosecuting any litigation, claim or proceeding) that may at any time be imposed upon, incurred by, or asserted or awarded against Landlord in connection or arising out of: (i) any Hazardous Material on, in, under or affecting all or any portion of the Premises for which Tenant is responsible under this Lease, (ii) any violation or claim of violation of any Environmental Law by Tenant; or (iii) the imposition of any lien for the recovery of costs for environmental cleanup or other response costs relating to the release or threatened release of Hazardous Materials on, in, under or affecting all or any portion of the Premises and for which Tenant is responsible under this Lease. Tenant’s indemnification shall survive the expiration and termination of this Lease and applies whether or not the concentrations of any such Hazardous Material is material, the concentrations exceed state or federal maximum contaminant, screening, or action levels, or any governmental agency has issued a cleanup order.

H. Notwithstanding anything to the contrary that may be contained in the Lease, Tenant shall have no liability of any kind to Landlord as to hazardous substances on the Premises, used or stored, caused, controlled, or managed by: (i) Landlord, its agents, employees, contractors, invitees or other tenants; or (ii) any person or entity located outside of the Premises (including, without limitation, the migration or leaching of hazardous substances from outside the Premises on or onto the Premises); or (iii) prior to Tenant's occupancy of the Premises or subsequent to Tenant's vacating the Premises.

4.5 Non-Discrimination. Tenant herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through it, and this Lease is made and accepted upon and subject to the requirement that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, genetic information, gender, gender identity, gender expression, marital status, age, national origin, or ancestry, in the leasing, use, occupancy, tenure, or enjoyment of the Premises, nor shall Tenant itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of Tenants, sub-tenants, or vendees in the Premises herein leased.

ARTICLE V

TAXES AND UTILITIES

5.1 Possessory Interest Tax/Property Taxes. Tenant recognizes and understands that this Lease may create a possessory interest subject to taxation and that Tenant may be subject to the payment of taxes levied on such interest. Tenant shall pay all taxes including without limitation any possessory interest, real estate and personal property taxes and

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 324 of 959 8 assessments assessed, levied, confirmed or imposed during the Term of this Lease, whether or not now customary or within the contemplation of Landlord and Tenant: (i) upon, measured by or reasonably attributable to the cost or value of Tenant’s equipment, furniture, fixtures and other personal property located in the Premises, or by the cost or value of the leasehold improvements made in or to the Premises by or for Tenant, regardless of whether title to the improvements is in Tenant or Landlord; (ii) upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion of the Premises; (iii) upon the Premises and all personal property, furniture, fixtures and equipment, and all replacements, improvements, or additions to them, whether owned by Landlord or Tenant; and (iv) upon this transaction or any document to which Tenant is a party creating or transferring and interest or an estate in the Premises.

5.2 Utilities. Tenant shall pay the appropriate suppliers for all water, gas, power, electricity, light, heat, telephone, facsimile, internet, and other utilities and communications services used by Tenant on the Premises during the Term, including the taxes thereon, whether or not the services are billed directly to Tenant. Tenant shall procure, or cause to be procured, without cost to Landlord, any and all necessary permits, licenses, or other authorizations required for the lawful and proper installation and maintenance upon the Premises of wires, pipes, conduits, tubes and other equipment and appliances for use in supplying any of the services to and upon the Premises. Landlord, upon request of Tenant, shall at the sole expense and liability of Tenant, join with Tenant in any application required for obtaining and continuing any of the services.

ARTICLE VI
INSURANCE; INDEMNIFICATION; WAIVER AND RELEASE

6.1 Minimum Insurance Requirements. Tenant, at its sole cost and expense, commencing on the date Tenant is given access to the Premises, and continuing during the Term, shall procure, pay for, and thereafter keep in full force and effect the following types of insurance, in at least the amounts and in the forms specified below:

A. Commercial General Liability (CGL) with limits no less than Two Million Dollars ($2,000,000.00) per occurrence basis including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than Two Million Dollars ($2,000,000) per occurrence. Tenant shall maintain in force liability insurance, at all times during the term of this Lease and any renewal or extension thereof, which shall insure and indemnify Landlord, the City Council and each member thereof, and every officer and employee of Landlord against liability or financial loss resulting from any suits, claims or actions brought by any person or persons and from all costs and expense of litigation brought against Landlord, the City Council and every member thereof for any injury to persons and/or damage to property in, on or about the Premises by reason of the use or occupation by Tenant or by any other person or persons of the Premises and the activities of Tenant.

B. A policy or policies of Workers Compensation insurance in the amount required by the State of California.

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 325 of 959 9 C. Property Insurance against all risk of loss at full replacement cost with no coinsurance penalty provision at Tenant’s cost and expense, shall be obtained and at all times during the term hereof maintain in effect covering (1) all improvements included in the Premises; (ii) Tenant’s trade fixtures, furnishings, equipment, and inventory of merchandise located in the Premises; and (2) all alterations, additions, and changes made in or to the Premises during the term of this Lease at Tenant’s expense, providing protection to the extent of not less than one hundred percent (100%) of the insurable value of all said items against any peril included under insurance industry practices in the jurisdiction of the Premises within the classification “fire and extended coverage,” together with insurance against vandalism, malicious mischief, and sprinkler leakage or other sprinkler damage, if sprinklers are installed, and including “use and occupancy” and/or “business interruption” coverage. Tenant hereby waives any and all rights of recovery against Landlord for any loss occurring to such items on account of fire or other casualty, and the aforesaid policies of insurance shall contain appropriate provision recognizing this release by Tenant and waiving all right of subrogation by the insurance carrier. The proceeds of such insurance, so long as this Lease remains in effect, shall be used to repair or replace the items so insured in the event of loss on account of fire or other casualty.

D. Automobile Liability: Covering any auto, or if Tenant has no owned autos, hired, and non-owned autos, with limits no less than the amount required by law per accident for bodily injury and property damage.

E. Plate Glass Insurance: Plate glass insurance covering all plate glass on the Premises at full replacement value; provided that Tenant shall be permitted to self-insure plate glass insurance.

F. Insurance covering all of Tenant’s Improvements and Tenant’s Alterations, in an amount not less than their full replacement value from time to time, including replacement cost endorsement, providing protection against any peril included within the classification Fire and Extended Coverage, sprinkler damage, vandalism, malicious mischief and such other additional perils as covered in an “all risks” standard insurance policy. Any policy proceeds shall be used for the repair or replacement of the property damaged or destroyed unless this Lease shall cease and terminate under the provisions of Article 14.

G. Business Interruption Insurance: Commercially reasonable business interruption insurance.

6.2 Delivery of Evidence of Tenant’s Insurance. Each such insurance policy or certificate thereof shall be delivered to Landlord by Tenant on or before the effective date of such policy and thereafter Tenant shall deliver to Landlord renewal policies or certificates at no more than thirty (30) calendar days following the expiration dates of the expiring policies. In the event that Tenant shall fail to insure or shall fail to furnish Landlord the evidence of such insurance as required by Article VI, Landlord may from time to time acquire (without any obligation to do so) such insurance for the benefit of Tenant or Landlord or both of them for a period not exceeding one (1) year, and any premium paid by Landlord shall be recoverable from Tenant. Tenant’s compliance with the provisions of Article VI shall in no way limit Tenant’s

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 326 of 959 10 liability under any of the other provisions of this Lease. Landlord may at any time, and from time to time, inspect and/or copy any and all insurance policies required by this Lease.

6.3 Other Insurance Requirements. The insurance to be acquired and maintained by Tenant shall be with companies admitted to do business in the State of California and companies of Best’s Rating Guide of A or better. Tenant shall deliver to Landlord, prior to taking possession of the Premises, a certificate of insurance evidencing the existence of the policies required hereunder, and such certificate shall certify that the policy:

A. Names Landlord and any other entities designated by Landlord as additional insureds under the Commercial General Liability policy; B. Shall not be canceled or altered without thirty (30) calendar day’s prior written notice to Landlord to the extent such carrier provides such notice; C. Provide that no act or omissions of Tenant shall affect or limit the obligations of the insurer with respect to other insureds or including Landlord; D. Include all waiver of subrogation rights endorsements necessary to affect the provisions below; and
E. Provide that the commercial general liability policy and the coverage provided shall be primary, that Landlord although an additional insured, shall nevertheless be entitled to recovery under such policy for any damage to Landlord by reasons of acts or omissions of Tenant, and that coverage carried by Landlord shall be noncontributory with respect to policies carried by Tenant.

6.4 Mutual Waiver of Subrogation. The Parties hereto release each other and their respective authorized employees, agents, and representatives, from any and all claims, demands, loss, expense, or injury to any person, or to the Premise or to personal property, including, but not limited to, furnishings, fixtures or equipment located therein, caused by or resulting from perils, events, or happenings which are the subject of insurance in force at the time of such loss.

Each Party shall cause each insurance policy obtained by it to provide that the insurer waives all right of recovery by way of subrogation against either party in connection with any damage covered by any policy. Neither Party shall be liable to the other for any damage caused by fire or any of the risks insured against under any insurance policy in effect as required by this Lease.

6.5 No Ownership. Nothing contained in Article VI shall be construed as creating or implying the existence of: (i) any ownership by Tenant of any fixtures, additions, alterations, or improvements in or to the Premises, or (ii) any right on Tenant’s part to make any addition, alteration, or improvement in or to the Premises.

6.6 Indemnity. Except to the extent caused by the negligence or willful misconduct of Landlord, its employees, officers, directors, agents, contractors or invitees, Tenant agrees to fully indemnify, defend, and hold Landlord, its elected and appointed officials, officers, employees, agents, successors and assigns, free and harmless from any and all third-party claims,

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 327 of 959 11 liability, loss, damage, costs, or expenses, including reasonable attorney fees, resulting from Tenant’s occupation or use of the Premises, specifically including, without limitation, any claim of liability, loss or damage arising by reason of:

A. The death or injury of any person or persons, including Tenant or any person who is an employee, agent, guest, or customer of Tenant, or by reason of the damage or destruction of any property, including property owned by Tenant or any person who is an employee, agent, guest, or customer of Tenant, and caused or allegedly caused by either the condition of the Premises, or some act or omission of Tenant or of some agent, contractor, employee, servant, guest, or customer of Tenant on the Premises; B. Any work performed on the Premises or materials furnished to the Premises at the instruction or request of Tenant; and
C. Tenant’s failure to perform any provision of this Lease, or to comply with any requirement of local, state, or federal law or any requirement imposed on Tenant or the Premises by any duly authorized governmental agency or political subdivision.

6.7 Waiver and Release. Except to the extent due to gross negligence or willful misconduct, Tenant waives and releases all claims against Landlord, its employees, and agents with respect to the matters for which Landlord has disclaimed liability pursuant to the provisions of this Lease. In addition, Tenant agrees that except to the extent due to gross negligence or willful misconduct, Landlord, its elected and appointed officials, employees, agents, successors and assigns shall not be liable for any loss, injury, death, or damage (including consequential damages) to persons, property, or Tenant’s business occasioned by theft; acts of God; public enemy; injunction; riot; strike; insurrection; war; terrorism; court order; order of governmental body or authority; earthquake; fire; explosion; falling objects; water; rain; snow; leak or flow of water, or by dampness or from the breakage, leakage, obstruction, or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or light fixtures; or from construction, repair, or alteration of the Premises; or from any acts or omissions of any visitor of the Premises; or from any cause beyond Landlord’s control.

ARTICLE VII
REPAIRS AND MAINTENANCE; ALTERATIONS

7.1 Tenant Obligations. Except as set forth in Section 7.4, Tenant shall maintain in good condition and repair, the entirety of the Premises (except that portion of Premises to be maintained by Landlord), including the Tenant Improvements, all fixtures, and the HVAC systems. If Tenant fails to make repairs, restorations, or replacements, Landlord may make them at the expense of Tenant and the expense shall be collected as additional rent to be paid by Tenant within thirty (30) days after delivery of a statement for the expense. Notwithstanding the foregoing, in the event of a catastrophic failure of the HVAC system or any material component thereof (i.e. a significant and unforeseen breakdown or malfunction that renders it inoperable or beyond repair, necessitating a complete replacement), the cost of its replacement shall be shared equally between Landlord and Tenant.

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 328 of 959 12 7.2 Alterations. Tenant shall not make any alterations, improvements or additions in, on or about any of the Premises, other than painting and carpeting and similar cosmetic improvements, without first obtaining Landlord’s prior written consent, not to be unreasonably withheld, delayed or conditioned.

A. All alterations, improvements, or additions in, on or about the Premises, whether temporary or permanent in character, shall immediately become Landlord’s property and at the expiration of the Term of this Lease shall remain on the Premises without compensation to Tenant.

B. By notice given to Tenant no less than ninety (90) calendar days prior to the expiration of the Term of this Lease, Landlord may require that any alterations, improvements, or additions in, on or about the Premises be removed by Tenant. In that event, Tenant shall remove the alterations, improvements or additions at Tenant’s sole cost and expense and shall restore the Premises to the condition in which the Premises was before the alterations, improvements, and additions were made, reasonable wear and tear accepted.

7.3 Mechanic’s Liens. Tenant shall pay or cause to be paid all costs and charges for:
(i) work done by Tenant or caused to be done by Tenant, in or to the Premises, and (ii) all materials furnished for or in connection with such work. Tenant shall indemnify Landlord against and hold Landlord and the Premises free, clear and harmless of and from any liens or claims of liens arising out of any work performed, materials furnished, or obligations incurred by Tenant, and Tenant shall be responsible for the removal of any such liens and all costs to remove same. Failure to remove any such liens within thirty (30) calendar days of written request by Landlord shall constitute a default of this Lease. At its election, but without having any obligation to do so, Landlord may pay such liens not so removed by Tenant and the amount expended by Landlord shall be paid by Tenant within fifteen (15) calendar days after delivery of a statement for the expense.

7.4 Landlord Obligations. Landlord shall be responsible for maintenance, repair, and replacement of:

A. Mechanical, electrical, lighting, and plumbing systems; B. Structure of roof and all components of the roof system, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, and doors; and C. Utility lines, sewage, septic, wet and dry fire sprinkler systems, including all components thereof, and fixtures and appurtenances to the Premises.

Notwithstanding the foregoing, Landlord will be responsible for repairs and maintenance of latent defects within the Premises.

7.5Emergency Repairs. In the event an Emergency Repair is needed, Tenant shall:
(i) promptly notify Landlord about the need for an Emergency Repair; (ii) provide details regarding the nature of the emergency and the specific location within the Premises that requires

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 329 of 959 13 immediate attention; (iii) take reasonable and necessary measures to prevent further damage or harm to the Premises, surrounding areas, or neighboring properties; and (iv) provide Landlord with reasonable access to the Premises to assess the Emergency Repairs, even outside regular business hours if necessary. If Tenant does the foregoing, and Landlord authorizes Tenant to make the Emergency Repair, Tenant shall have the right, but not the obligation, to make the Emergency Repair. If Landlord fails to timely undertake or authorize Tenant to or undertake an Emergency Repair, Tenant may do so at Landlord’s expense.

The cost of Emergency Repairs shall be borne by Landlord, except in cases where the damage was caused by the negligence or intentional misconduct of Tenant or Tenant's guests, employees, or agents. Notwithstanding the foregoing, Landlord shall reimburse Tenant’s documented out-of-pocket costs for authorized repairs within thirty (30) days following receipt of Tenant’s invoice; provided that if Landlord fails to do so, Tenant may set off such amount from the Monthly Rent.

For purposes of this section, an “Emergency Repair” means a repair necessary to remedy a property condition that poses an immediate risk to the safety, security, or operational integrity of the Premises or any part thereof, necessitating immediate action to prevent further damage, injury, or disruption to business operations, and includes but is not limited to conditions or malfunctions that present an immediate threat to the health and safety of individuals present on the Premises, such as a gas leak, electrical hazard, or structural instability.

7.6 Prevailing Wages. If applicable, Tenant shall comply with prevailing wage laws (California Labor Code Sections 1720 et seq.), and shall defend, indemnify, and hold Landlord harmless from and against any and all claims by any third parties, including but not limited to, contractors and subcontractors for prevailing wages.

ARTICLE VIII
DAMAGE AND DESTRUCTION; CONDEMNATION

8.1 Damage or Destruction of Premises. Tenant shall promptly notify Landlord of any Substantial Damage (defined below) to the Premises due to casualty. Within thirty (30) days following such notice, Landlord shall notify Tenant as to the time that a qualified independent consultant reasonably acceptable to Tenant estimates it will take to restore the Premises. “Substantial Damage” means damage to or destruction of the Premises that affects 10% or more of the floor area leased by Tenant or any portion of the Premises that materially impacts Tenant’s business operations in Tenant’s judgment. If a casualty causes Substantial Damage and the estimated restoration time exceeds one hundred twenty (120) days following Landlord’s receipt of the consultant’s report, either party may elect to terminate this Lease upon written notice to the other party within thirty (30) days following mutual receipt of the report. If neither party elects to terminate this Lease or if the consultant reasonably estimates that restoration will take one hundred twenty (120) days or less, then Landlord shall promptly, and with all commercially reasonable diligence, restore the Premises and this Lease shall remain in full force and effect. If this Lease is terminated pursuant to this Section, Tenant shall have an additional forty-five (45) days after the termination, free of Rent or any other charge, to vacate the Premises.

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 330 of 959 14 8.2 Condemnation. If all or any part of the Premises shall be condemned or taken as a result of the exercise of the power of eminent domain, including any conveyance or assignment in lieu of any condemnation or taking, this Lease shall terminate as to the part so taken as of the date of taking, and in the case of a partial taking, Tenant shall have the right to terminate this Lease as to the balance of the Premises by notice to the other within thirty (30) calendar days after the date of such taking; provided, however, that a condition to the exercise by Tenant of such right to terminate shall be that the portion of the Premises taken shall be of such extent and nature as substantially to handicap, impede or impair Tenant’s use of the balance of the Premises. In the event Tenant does not elect to terminate, the Rent shall be reduced on a pro rata basis. In any event, Landlord shall be entitled to any and all compensation, damages, income, rent, awards and any interest therein whatsoever which may be paid or made in connection therewith, and Tenant shall have no claim against Landlord for the bonus value of any unexpired Term of this Lease or otherwise; provided, however, that nothing herein shall prevent Tenant from pursuing a separate award against the taking entity, specifically for its relocation expenses or for the taking of any personal property or trade fixtures belonging to Tenant, so long as such separate award to Tenant does not diminish any award otherwise due Landlord as a result of such condemnation or taking.

ARTICLE IX
ASSIGNMENT; SUBLETTING; PROCESSING

9.1 Assignment and Subletting. Tenant shall not assign, mortgage, pledge, encumber, or hypothecate this Lease or any interest herein (directly, indirectly, voluntarily, or involuntarily, by operation of law, or otherwise) or sublet the Premises or any part thereof, or permit the use of the Premises by anyone other than Tenant without the prior written consent of Landlord first being obtained, which consent shall not be unreasonably withheld, delayed or conditioned. If Tenant is a corporation, a limited liability company or a partnership, the transfer (as a consequence of a single transaction or any number of separate transactions) of fifty percent (50%) or more of the beneficial ownership interest of the voting stock of Tenant issued and outstanding as of the date hereof, the membership interests in Tenant or the partnership interests in Tenant, as the case may be, shall constitute an assignment hereunder for which such consent is required. Further, Tenant shall not assign this Lease or sublet the Premises or any portion thereof to any corporation which controls, is controlled by or is under common control with Tenant, or to any corporation resulting from merger or consolidation with Tenant, or to any person or entity which acquires all the assets as a going concern of the business of Tenant that is being conducted on the Premises, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned. Any of the foregoing acts without such consent shall be void and, at the sole option of Landlord, constitute an Event of Default entitling Landlord to terminate this Lease and to exercise all other remedies available to Landlord under this Lease and at law.

A. In the event that Tenant should desire to sublet the Premises or any part thereof, or assign this Lease, Tenant shall provide Landlord with written notice of such desire at least thirty (30) calendar days in advance of the proposed effective date of such subletting or assignment. Such notice shall include: (i) the name of the proposed subtenant or assignee; (ii) the nature of business to be conducted by the proposed subtenant or assignee in the Premises; (iii)

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 331 of 959 15 the terms and conditions of the proposed assignment or sublease including but not limited to a detailed description of all compensation in cash or otherwise which Tenant would be entitled to receive in connection with such assignment or sublease; and (iv) the most recent financial statements or other financial information concerning the proposed subtenant or assignee as Landlord may require. At any time within thirty (30) calendar days following receipt of Tenant’s notice, Landlord may by written notice to Tenant elect to: (i) terminate this Lease as to the space affected by the proposed subletting or assignment, as of the effective date of the proposed subletting or assignment; (ii) consent to the proposed subletting of the Premises or assignment of this Lease; or (iii) disapprove of the proposed subletting or assignment. Landlord may elect to terminate this Lease as to the space affected by the proposed assign or subletting in its sole and absolute discretion. If Landlord does not elect to terminate this Lease, however, Landlord shall not unreasonably withhold its consent to a proposed subletting or assignment.

B. Subject to obtaining Landlord’s consent in accordance with the requirements of Section 9.1, in order for any assignment or sublease to be binding on Landlord, Tenant must deliver to Landlord, promptly after execution thereof, an executed copy of such sublease or assignment whereby the subtenant or assignee shall expressly assume all obligations of Tenant under this Lease as to the portion of the Premises subject to such assignment or sublease. Any purported sublease or assignment will be of no legal force or effect unless and until the proposed sublease has been consented to, in writing, by Landlord and a fully executed copy thereof has been received by Landlord.

C. Regardless of Landlord’s consent, no subletting or assignment shall release Tenant or any guarantor of Tenant, of its or their obligations, or alter the primary liability of Tenant and its guarantor(s), if any, to provide Monthly Rent and to perform all other obligations to be performed by Tenant hereunder. The acceptance of payments by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision hereof.

Consent to one assignment or subletting shall not be deemed consent to any subsequent or further assignment, subletting, hypothecation or third party use or occupancy. In the event of default by any assignee or successor of Tenant in the performance of any of the terms of this Lease, Landlord may proceed directly against Tenant and/or its guarantor(s), if any, without the necessity of exhausting remedies against said assignee or successor. Landlord may not consent to subsequent assignments or subletting of this Lease or amendments or modifications to this Lease with assignees of Tenant, without Tenant’s prior written consent.

D. Landlord shall have the unconditional right to sell, encumber, pledge, convey, transfer, and/or assign any and all of its rights and obligations under the Lease without the consent of or notice to Tenant or any guarantor(s) of Tenant’s obligations hereunder.

ARTICLE X
HOLDING OVER; SALE OF PREMISES; SURRENDER

10.1 No Right to Holdover. Tenant has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. If, without objection by Landlord, Tenant holds possession of the Premises after expiration of the Term, Tenant shall become a Tenant from month-to-month upon the terms herein specified, except that the monthly

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 332 of 959 16 rent shall equal to one hundred and twenty-five percent (125%) of the monthly rent payable by Tenant at the expiration of the Term. In addition, Tenant shall continue to pay all other amounts due to Landlord hereunder. Each Party shall give the other notice at least one (1) month prior to the date of termination of such monthly tenancy of its intention to terminate such tenancy. If, after objection by Landlord thereto, Tenant holds possession of the Premises after expiration of the Term, Tenant shall constitute a Tenant at sufferance and without in any way waiving the wrongful holding over of the Premises by Tenant, Landlord shall be entitled to receive for each month or portion thereof during which Tenant wrongfully holds over at the Premises monthly rent equal to one hundred and twenty-five percent (125%) of the monthly rent payable by Tenant at the expiration of the Term together with all other amounts otherwise due to Landlord hereunder. Landlord' s receipt of increased monthly rent under this Section 10.1 shall not constitute an extension of the Term nor shall it constitute a waiver of Tenant' s wrongful holding over and shall not prejudice any other rights or remedies available to Landlord under this Lease or by law.

10.2 Sale of Premises. In the event Landlord, or any successor owner of the Premises, shall sell or convey the Premises, all liabilities and obligations on the part of Landlord, or such successor owner, under this Lease accruing thereafter shall terminate, and thereupon all such liabilities and obligations shall be binding upon the new owner. Tenant agrees to attorn to such new owner.

10.3Surrender of the Premises. Upon the expiration or termination of this Lease, Tenant shall quit and surrender the Premises vacant, broom clean, and in good order and condition as is consistent with its Original Condition, ordinary wear and tear and damage by casualty or condemnation excepted. If Tenant fails to do so, upon notice from Landlord, Tenant shall undertake all necessary restoration and repair work at its own expense to ensure that the Premises is in as good of a condition as its Original Condition, including but not limited to the following: (i) repairing any damage or alterations made to the Premises so that they match its Original Condition; (ii) replacing any fixtures, appliances, or equipment that were originally present in the Premises; (iii) restoring any finishes, such as flooring, paint, wallpaper, or paneling, to their Original Condition; (iv) remediating any environmental contamination on the Premises for which Tenant is responsible under this Lease; and (v) ensuring that the structural elements, including walls, ceilings, doors, windows, and built-in features, in each case excluding those elements for which Landlord is responsible under this Lease, are restored to their Original Condition. “Original Condition” refers to the state or condition of the Premises as of March 18, 1999, and encompasses the physical state, appearance, and functionality of the Premises, including fixtures, equipment, or structural elements present at that time. If Tenant fails to restore the Premises to its Original Condition within a reasonable amount of time following expiration or termination of this Lease, Tenant shall be liable for any costs incurred by Landlord to bring the Premises back to its Original Condition.

ARTICLE XI
SUBORDINATION; ESTOPPEL CERTIFICATES

11.1 Subordination. This Lease and the rights of Tenant hereunder are subject and subordinate to any ground or underlying lease and the lien of the holder of or beneficiary under a

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 333 of 959 17 mortgage or deed of trust now encumbering the Premises and to any and all advances made thereunder, and interest thereon, and all modifications, renewals, supplements, consolidations and replacements thereof. Tenant agrees that any ground or underlying landlord or lender may at its option, unilaterally elect to subordinate in whole or in part, such ground or underlying lease or the lien of such mortgage or deed of trust to this Lease. Such subordination or priority of this Lease, as the case may be, shall be effective without the necessity of executing any further instrument or agreement to effect such subordination or priority; provided, however, that Tenant agrees to execute, acknowledge, and deliver to Landlord upon demand any and all commercially reasonable instruments required by Landlord or any such ground or underlying Landlord or lender evidencing the subordination or priority of this Lease, as the case may be. All Mortgages made on or after the date of this Lease shall be subordinate to the Lease, provided however that, upon the request of Landlord, Tenant agrees to subordinate this Lease to any such Mortgage pursuant to a commercially reasonable subordination and non-disturbance agreement.

11.2 Estoppel Certificates. At any time and from time to time, Tenant shall execute, acknowledge and deliver to Landlord, within ten (10) calendar days after receipt of a written request by Landlord, a certificate certifying, among other things: (i) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that this Lease is in full force and effect, as modified, and stating the date and nature of each modification); (ii) the date, if any, to which monthly rent (if applicable) and other sums payable hereunder have been paid; (iii) that no notice has been received by Tenant of any default which has not been cured except as to defaults specified in said certificate; and (iv) such other matters as reasonably may be requested by Landlord.

ARTICLE XII
DEFAULT; REMEDIES; DISPUTE RESOLUTION

12.1 Default; Breach.

A. Default. A “Default” by Tenant is defined as a failure by Tenant to observe, comply with, or perform any of terms, covenants, conditions, or rules applicable to Tenant under this Lease, and shall include but not be limited to:
(1) Failure to provide the Monthly Rent set forth in Section 1.5 or other amounts owing pursuant to the terms of this Lease.
(2) Failure by Tenant to provide Landlord with reasonable evidence of insurance required under this Lease.
(3) Failure by Tenant to timely deliver to Landlord any instrument or assurances required pursuant to this Lease, including an estoppel certificate pursuant to Section

11.2 of this Lease.
(4) Occurrence of any of the following events: (i) the making by Tenant of any general arrangement or assignment for the benefit of creditors; (ii) Tenant’s becoming a “debtor” as defined in 11 U.S. Code Section 101 or any successor statute thereto (unless, in the

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 334 of 959 18 case of a petition filed against Tenant, the same is dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease, where possession is not restored to Tenant within thirty (30) days; or (iv) the attachment, execution, or other judicial seizure of substantially all of Tenant’s assets located at the Premises or of Tenant’s interest in this Lease, where such seizure is not discharged within thirty (30) days; provided, however, in the event that any provision of this Subparagraph 12.1(A)(6) is contrary to any applicable law, such provision shall be of no force or effect, and shall not affect the validity of the remaining provisions. (5) Failure of Tenant to fulfill any obligation under this Lease which endangers or threatens life or property.
(6) Tenant making or furnishing any warranty, representation, or statement to Landlord in connection with this Lease, or any other agreement made by Tenant for the benefit of Landlord, which is or was false or misleading in any material respect when made or furnished. (7) Assignment or sublease of this Lease or any portion of the Premises, or attempt to assign or sublease this Lease or any portion of the Premises, by Tenant in violation of Section 9.1.
(8) Tenant committing waste on the Premises.
(9) Failure of Tenant to otherwise perform, satisfy, or abide by any of the terms, covenants, conditions, or provisions of this Lease.

B. Breach. In the event that Tenant is in Default of this Lease, Landlord shall notify Tenant in writing of the nature of the Default and of the corrective action to be taken. If corrective action is not commenced within ten (10) business days after receipt of written notice and not completed within thirty (30) days thereafter, or longer, if Tenant is diligently pursing corrective action, such failure by Tenant shall constitute a “Breach,” and Landlord may pursue those remedies set forth in Section 12.2. Notwithstanding the foregoing, for Defaults under Section 12.1(A)(5), Tenant shall be deemed in Breach if Tenant fails to remedy such Default within three (3) business days following receipt of written notice thereof by or on behalf of Landlord to Tenant.

12.2 Remedies. On the occurrence of Tenant’s Breach of this Lease, Landlord shall have the right to pursue any one or more of the following remedies in addition to any other remedies now or later available to Landlord, either in law or equity, which remedies shall not be exclusive, but shall instead be cumulative: (i) remove all persons and property from the Premises and repossess same, in which case any and all of Tenant’s property that Landlord removes from the Premises may be stored in a public warehouse or elsewhere at the cost of, and for the account of, Tenant; or (ii) allow Tenant to remain in full possession and control of the Premises.

A. If Landlord chooses to repossess the Premises, then this Lease will automatically terminate in accordance with the provisions of California Civil Code Section 1951.

In the event of such termination of the Lease, Landlord may recover from Tenant:

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 335 of 959 19 (1) The worth at the time of award of the unpaid rent which had been earned at the time of termination, including interest at the maximum rate allowed by law; (2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of the award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided, including interest at the maximum rate allowed by law;
(3) The worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; and
(4) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant' s failure to perform its obligations under this Lease or which, in the ordinary course of things, would be likely to result therefrom.

B. “The worth at the time of the award,” as used in Section 12.2(A) shall be computed by allowing interest at the maximum rate allowed by law. “The worth at the time of the award” shall be computed by discounting the amount at the discount rate of the Federal Reserve Bank at the time of the award, three one percent (3%).

C. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises, including, without limitation, lost rents, eviction costs, reasonable attorney's fees, brokers' commissions, expenses of remodeling the Premises required by the re-letting, and like costs. Re-letting can be for a period shorter or longer than the remaining Term. Tenant shall pay to Landlord the rent due under this Lease on the dates the rent is due, unless Landlord notifies Tenant that Landlord elects to terminate this Lease. After Tenant's Default and for as long as Landlord does not terminate Tenant's right to possession of the Premises, if Tenant obtains Landlord's consent, Tenant shall have the right to assign its interest in this Lease, or sublet all or a portion of the Premises, but Tenant shall not be released from liability or its obligations under this Lease. Landlord's consent to a proposed assignment or subletting shall be as required in Section 9.1.

D. If Landlord elects to re-let the Premises, then any rent that Landlord receives from re-letting shall be applied to the payment of: (i) first, any indebtedness from Tenant to Landlord other than rent due from Tenant; (ii) second, all costs incurred by Landlord in re-letting, including costs for maintenance; and (iii) third, Rent due and unpaid under this Lease.

E. After deducting the payments referred to in Section 12.2, any sum remaining from any rent that Landlord receives from re-letting shall be held by Landlord and applied in payment of future rent as rent becomes due under this Lease. In no event shall Tenant be entitled to any excess rent received by Landlord. If, on the date rent is due under this Lease, the rent received from any re-letting is less than the rent due on that date, then Tenant shall pay to Landlord, in addition to the remaining rent due, all costs which Landlord incurred

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 336 of 959 20 in re-letting, including without limitation maintenance, that remain after applying the rent received from the re-letting, as provided in Section 12.2.

12.3 Continuation after Breach. Even though Tenant has breached this Lease and/or abandoned the Premises, this Lease shall continue in full force and effect for so long as Landlord does not terminate Tenant’s right to possession as provided in Section 12.2 above, and Landlord may enforce all its rights and remedies under this Lease. In such event, Landlord may exercise all of the rights and remedies of a Landlord under California Civil Code Section 1951.4, or any successor statute. Acts of maintenance or preservation or efforts to re-let the Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord’s interest under this Lease shall not constitute a termination of Tenant’s right to possession.

12.4 Other Relief. In the event of re-entry or taking possession of the Premises, Landlord shall have the right but not the obligation to remove all or any part of the trade fixtures, furnishings, equipment, and personal property located in the Premises and to place the same in storage at a public warehouse at the expense and risk of Tenant or to sell such property in accordance with applicable law. The remedies provided for in this Lease are in addition to any other remedies available to Landlord at law or in equity, by statute or otherwise. Any amounts so expended by Landlord shall be immediately payable by Tenant.

12.5 Landlord's Right to Cure Default. All agreements and provisions to be performed by Tenant under any of the terms of this Lease shall be at its sole cost and expense. If Tenant shall fail to perform any other act on its part to be performed hereunder and such failure shall not be cured within the applicable cure period provided for herein, if any, Landlord may, but shall not be obligated so to do, and without waiving or releasing Tenant from any obligations of Tenant, make any such payment or perform any such other act on Tenant's part to be made or performed as provided in this Lease. All sums so paid by Landlord and all necessary incidental costs shall be on Tenant's account and shall be payable to Landlord on demand.

12.6 Dispute Resolution. Any dispute arising out of or relating to this Lease, or breach thereof, shall be first submitted to the senior management of each Party for resolution during a thirty (30) calendar day dispute resolution period. Notice must be in writing and served pursuant to Section 13.1 herein. The foregoing dispute resolution period shall run concurrently with any notice and cure periods provided for herein.

12.7Tenant’s Remedies. A “Default” by Landlord is defined as a failure by Landlord to observe, comply with, or perform any of terms, covenants, conditions, or rules applicable to Landlord under this Lease. In the event that Landlord is in Default of this Lease, Tenant shall notify Landlord in writing of the nature of the Default and of the corrective action to be taken. If corrective action is not commenced within thirty (30) business days after receipt of written notice and not completed within sixty (60) business days thereafter, or longer, if Landlord is diligently pursing corrective action, such failure by Landlord shall constitute a Breach, and Tenant may terminate this Lease. Notwithstanding the foregoing, for Defaults that endanger life or property, Landlord shall be deemed in Breach if Landlord fails to remedy such Default within fifteen (15) business days following receipt of written notice thereof by or on behalf of Tenant to Landlord.

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 337 of 959 21 ARTICLE XIII

GENERAL PROVISIONS

13.1 Attorneys’ Fees. Should any action or proceeding be commenced by Landlord to enforce the provisions provided in this Lease, or should any litigation be commenced between the parties to this Lease concerning said Property, this Lease, or the rights and duties of either in relation thereto, the prevailing party in such litigation shall be entitled, in addition to such other relief as may be granted as the result of said litigation, to a reasonable sum for its attorneys’ fees.

13.2Notice. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by registered or certified mail, return receipt requested, telegraphed, delivered or sent by telex, telecopy or cable and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if mailed, five (5) business calendar days after the date of posting by the United States post office, (iii) if given by telegraph or cable, one (1) business calendar day after the date delivered to the telegraph company with charges prepaid.

To Landlord: To Tenant:

City of Indio Core & Main LP
100 Civic Center Mall 1830 Craig Park Court
Indio, CA 92201 St. Louis, MO 63146
Attn: City Manager ATTN: Real Estate & Lease Administration

A. Notice of change of address shall be given by written notice in the manner detailed in this Section. Rejection or other refusal to accept, or the inability to deliver because of changed address of which no notice was given, shall be deemed to constitute receipt of the notice, demand, request or communication sent.

B. Tenant hereby agrees that service of notice in accordance with the terms of this Lease shall be in lieu of the methods of service specified in Section 1161 of the California Code of Civil Procedure Section 1161. The provisions of California Code of Civil Procedure Section 1013(a), extending the time within which a right may be exercised or an act may be done, shall not apply to a notice given pursuant to this Lease.

13.3Quiet Enjoyment. In lieu of any implied covenant of quiet possession or quiet enjoyment, Landlord agrees that Tenant, on paying the Monthly Rent and other payments herein reserved and on keeping, observing, and performing all the other terms, covenants, conditions, provisions, and agreements contained in this Lease on the part of Tenant to be kept, observed, and performed, shall, during the Term of this Lease, peaceably and quietly have, hold, and enjoy the Premises free from hindrance by Landlord or any other person claiming by, through, or under Landlord subject, however, to the provisions of this Lease and to the priority of any mortgages, deeds of trust, or ground leases referred to in Section 11.

13.4 Relocation Assistance. In the event Tenant terminates the Lease and/or the Lease expires, Tenant hereby waives and forever releases Landlord, including its successors, officers, employees, attorneys, actions or causes of action, liabilities, known or unknown, based upon or

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 338 of 959 22 relating to the California Relocation Assistance and Real Property Acquisition states and guidelines and Landlord’s subsequent use and development of the Property, or Tenant’s displacement therefrom.

13.5Landlord Lien; Security Interest. Landlord hereby waives any statutory or common law lien or other similar lien it may have for Rent against any and all of the personal property and trade fixtures of Tenant. All personal property in or on the Premises shall be and remain the personal property of Tenant, exempt from the claims of Landlord or any mortgagee or lienholder of Landlord without regard to the means by which the same are attached.

13.6 Counterparts. This Lease may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument.

13.7 Captions. Any captions to, or headings of, the sections or subsections of this Lease are solely for the convenience of the parties hereto, are not a part of this Lease, and shall not be used for the interpretation or determination of the validity of this Lease or any provision hereof.

13.8 Amendment of Agreement. The terms of this Lease may not be modified or amended except by an instrument in writing executed by each of the Parties hereto.

13.9 Waiver. The waiver by Landlord or Tenant of any agreement, condition, or provision herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other agreement, condition or provision herein contained, nor shall any custom or practice which may grow up between the Parties in the administration of the terms hereof be construed to waive or to lessen the right of Landlord or Tenant to insist upon the performance by Tenant or Landlord in strict accordance with said terms. The subsequent acceptance of any payment hereunder by Landlord shall not be deemed to be a waiver of any breach by Tenant of any agreement, condition or provision of this Lease, other than the failure of Tenant to pay the particular amount so accepted. Specifically, Landlord may accept any payment from Tenant and apply same to any amount owing hereunder notwithstanding any stated intent or instruction on the part of Tenant to the contrary and without waiving or compromising any claim that such payment was less than the payment actually due from Tenant.

13.10 No Merger. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work as a merger, and shall, at the option of Landlord, terminate all or any existing subleases or sub-tenancies, or may, at the option of Landlord, operate as an assignment to it of any or all such subleases or sub-tenancies.

13.11 Applicable Law. This Lease shall be governed by and construed in accordance with the laws of the State of California.

13.12 Fees and Other Expenses. Except as otherwise provided herein, each of the Parties shall pay its own fees and expenses in connection with this Lease, including any permit or license fees which Tenant may be required to obtain pursuant to its occupancy.

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 339 of 959 23 13.13 Authority to Execute Agreement. Landlord and Tenant represent and warrant that the individuals who have signed this Lease have the legal power, right and authority to enter into this Lease so as to bind each Party for whom they sign to perform as provided herein.

13.14Brokers. Landlord and Tenant each warrants to the other that no commissions are payable or due to any other broker or finder in connection with this Lease, and each of Landlord and Tenant agrees to indemnify, defend, and hold the other harmless from and against any commissions or fees or claims for commission or fees arising under or resulting from any act or communication from the indemnifying party, which indemnification will expressly survive the expiration or prior termination of the Lease, as amended hereby.

13.15 Successors and Assigns. This Lease shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. Tenant shall be responsible for the acts or omissions of its subtenant(s), if any.

13.16 Incorporation of Exhibits. Each of the Exhibits to this Lease are incorporated by reference as though fully set forth herein.

13.17 Entire Agreement. This Lease supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between Tenant and Landlord as to the subject matter hereof. No subsequent agreement, representation, or promise made by either Party hereto, or by or to any employees or agents of either Party shall be of any effect unless it is in writing and executed by the party to be bound thereby. (Signatures on following page.)

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 340 of 959 24 IN WITNESS WHEREOF, the Parties hereto have executed this Lease as of the calendar day and year written below.

LANDLORD:

CITY OF INDIO, a California
municipal corporation
By: ____________________________
Bryan H. Montgomery
City Manager

Date: __________________________
ATTEST:

By: _____________________________
Cynthia Hernandez
City Clerk

Date: ___________________________
APPROVED AS TO FORM:

By: ____________________________
Steven P. Graham
TENANT:

CORE AND MAIN LP, a Florida limited
partnership
By: ____________________________
Chief Financial Officer
Date: ___________________________

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 341 of 959 25 City Attorney

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 342 of 959 26 EXHIBIT “A”
Premises/Lease Plan

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 343 of 959 27 EXHIBIT “B”
General Rules and Regulations

1. All floor areas of the Premises (including vestibules, entrances and air returns), doors, fixtures, windows, and plate glass shall be maintained by Tenant, in a clean, safe and good condition.

2. All trash, refuse and waste materials shall be stored in adequate containers, approved by Landlord and regularly removed from the Premises. These containers shall not be visible to the general public and shall not constitute a health or fire hazard or nuisance to any tenant. In the event that any tenant shall fail to remedy such a health or fire hazard or nuisance within five (5) days after written notice by Landlord, Landlord may remedy and/or correct such health or fire hazard or nuisance at the expense of Tenant. Tenant must obtain a separate temporary dumpster to receive its move-in merchandising debris, and construction debris from any tenant improvements or alterations. Should it be necessary for Landlord to have Tenant's solid or liquid rubbish cleaned up, the cost for such cleaning shall be charged back to Tenant along with an administrative fee of fifteen percent (15%).

3. No portion of the Premises shall be used for lodging purposes. No cooking is allowed on the Premises unless Tenant is a restaurant; provided that from time-to-time Tenant may grill food outside of the building located on the Premises.

4. Neither sidewalks nor walkways shall be used to display, store or place any merchandise, equipment or devices, except in connection with sidewalk sales held with Landlord's prior written approval in each instance.

5. No public telephone, newsstand, shoeshine stand, refreshment, vending or other coin operated machine shall be installed or placed on the sidewalk or walkway area adjacent to the Premises or on the Common Facilities without Landlord's prior written approval in each instance. No public telephones are allowed within or outside of the Premises (other than Landlord provided public telephones).

6. No person or persons shall use the Premises, or any part thereof, for conducting therein a second-hand store, auction, distress or fire sale or bankruptcy sale, or "going out of business" sale or "lost our lease" sale, without Landlord's prior written consent in each instance.

7. No portion of the Premises shall be used for the storage of any merchandise, materials or other properties, other than those reasonably necessary for the operation of Tenant's business.

Landlord may, from time to time, inspect the Premises to ensure compliance with the foregoing provisions.

8. No display areas of the Premises shall be left vacant, and Tenant shall not black out or otherwise obstruct the windows of the Premises, without Landlord's prior written consent. Signs in the windows may be limited and must be approved by the Landlord in writing.

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 344 of 959 28 9. Landlord shall have the absolute right to enter upon the Premises to perform such cleaning and clearing of the pipes and drains servicing the Premises (including roto-rooter service), and any grease traps and exhaust systems servicing the Premises, as Landlord shall deem necessary.

10. If Tenant shall operate a carry-out food operation, including food and/or soft drink vending machines as well as any ice cream store, Tenant shall pay Landlord for all sidewalk and walkway cleanup work (including without limitation steam cleaning), that Landlord shall determine is necessary to preserve the sanitation, cleanliness and clean appearance of the Building. Tenant shall pay Landlord on an estimated month basis, adjusted annually, and will be responsible for a cleanup of not less than one hundred feet (100') in radius from the entrance(s) to the Premises.

11. If Tenant provides its customers with the use of shopping carts and/or baskets, Tenant shall be responsible for causing said carts and/or baskets to be stored only in areas designated by Landlord. If Tenant fails to routinely collect and store said carts as necessary (at least twice on a daily basis), Landlord may assume the responsibility of same and may bill Tenant on an estimated monthly basis for such service.

12. The sidewalks, exits and entrances shall not be obstructed by Tenant or used by it for any purpose other than for ingress to and egress from the Premises.

13. Tenant shall not alter any lock or install any new or additional locks or any bolts on any door of the Premises without the prior written consent of Landlord (except as to safes and vaults of the Tenant). Installation of floor safes will require prior written approval by Landlord and must remain with the Premises at termination.

14. The toilet rooms and urinals, wash bowls and other apparatus therein shall not be used for any purpose other than that for which they were constructed and no foreign substance of any kind whatsoever shall be placed therein. The expense of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by the Tenant who, or whose employees, invitees, contractors or agents, shall have caused it.

15. Except as to normal pictures and furnishings, Tenant shall not mark, drive nails, screw or drill into the partitions, woodwork or plaster or in any way deface the Premises or any part thereof. No boring, cutting or stringing of wires shall be permitted except with the prior written consent of Landlord and as Landlord may direct. Tenant shall not lay linoleum tile, carpet or other similar floor covering so that the same shall be affixed to the floor of the Premises in any manner except as approved by Landlord. The expense of repairing any damage resulting from a violation of this rule or removal of any floor covering shall be borne by Tenant.

16. Tenant shall not use, keep or permit to be used or kept, any noxious gas or substance in the Premises except as permitted in the Lease, or permit or suffer the Premises to be occupied or used in a manner offensive or objectionable to Landlord or other occupants of the Premises by reason of noise, odors, and/or vibrations, or interfere in any way with other tenants or those having business therein. Tenant shall not make or permit to be made any loud or disturbing

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 345 of 959 29 noises or disturb or interfere with neighbors’ use and enjoyment of their property, whether by the use of any musical instrument, radio, television, video or audio recording, shouting, or in any other manner. Tenant shall not throw anything out of doors.

17. Tenant shall not use or keep in the Premises any kerosene, gasoline or flammable or combustible fluid or material other than in the ordinary course of Tenant’s business, including properly stored gas cannisters for forklifts, or use any method of heating or air conditioning other than that supplied or permitted by Landlord.

18. Landlord will direct electricians as to where and how electrical, telephone, television and cable wires are to be introduced to the Premises. No boring or cutting for wires will be allowed without the prior consent of Landlord. The location of telephone call boxes and other office equipment in the Premises shall be subject to the approval of Landlord. All such consents and approvals by the Landlord must be in writing.

19. Tenant shall be responsible for assuring that doors to the Premises are not left unlocked during non-business hours, except while moving furniture or other items in or out of the Premises.

20. Landlord reserves the right to exclude or expel from the Premises any person who, in the judgment of Landlord, is intoxicated or under the influence of liquor or drugs, or is violating the rules and regulations of the Premises.

21. The requirements of Tenant will be attended to only upon application to Landlord.

Employees of Landlord shall have no obligation to perform any work for Tenant or do anything outside their regular duties for Tenant unless under special instructions from Landlord, and no employee shall have any obligation to admit any person (Tenant or otherwise) to any office of Landlord without specific instruction from Landlord.]

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 346 of 959 Attachment 2
Location: 82314 Market Street, Indio, CA 92201
APN: 611-025-035
Lot Size: 1.45 Acres

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AGENDA ITEM #8.15
Approval of a Lease Agreement with Core & Main, LP located at 82314 Mark... Page 347 of 959 City of Indio
City Council
August 16, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Carl S. Morgan, Dir. Of Economic Development Subject: Approve a first amendment and extension to the Professional Services Agreement with Steve Serna dba Serna & Associates in an amount not to exceed $100,000 for downtown ambassador and security services.

RECOMMENDATION:

Approve a first amendment and extension to the Professional Services Agreement with Steve Serna dba Serna & Associates in an amount not to exceed $100,000 over a one -year term for downtown ambassador and security services, and authorize the City Manager to sign the agreement, with the option to renew for one additional year.

SUMMARY:

The proposed Scope of Work for the Downtown Ambassador Program, in partnership with Serna & Associates, represents a First Amendment to an existing Professional Services Agreement (PSA) dated December 1, 2018. The Amendment seeks to authorize Serna & Assoc iates to provide uniformed Ambassadors in the City's Downtown area. The City of Indio aims to enhance the overall visitor experience in the Downtown area by combining concierge -type customer service with appropriate security measures. The Downtown Ambassad or Program will create a welcoming and safe environment for visitors, residents, and local businesses. The proposed scope aligns with the City's objectives of fostering hospitality, safety, and security in the downtown area. Serna & Associates, as our long standing partner, is well -equipped to ensure the successful execution of the program. With over four years of collaboration between the Indio Police Department (IPD) and Serna & Associates, it is recommended that adding the Downtown Ambassador Program to t he existing Serna & Associates contract is the most cost -effective and efficient approach to delivering this new program. The City staff recommends the approval of this contract Amendment with Serna Security for the Downtown Ambassador Program. By moving f orward with this initiative, staff is confident in the ability to elevate the downtown experience and create a vibrant and secure urban environment for all stakeholders.

BACKGROUND INFORMATION:

On December 1, 2018, the City Council approved a Professiona l Services Agreement with Serna & Associates to provide unarmed and uniformed security services.

On May 17, 2023, the City Council approved the Downtown Ambassador Program. The Downtown Indio Ambassadors program is a proactive approach designed to enhance the vibrancy and vitality of Downtown Indio to ensure a welcoming and safe environment for visitors, residents, and businesses.

The program aims to improve the overall downtown experience by providing assistance, guidance, AGENDA ITEM #8.16
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Scope of Work:

Serna & Associates has presented a comprehensive scope of work for the Downtown Ambassador Program, which includes the following key elements:

DT Ambassador Uniforms:

Serna will provide uniform shirts at no cost to the City of Indio. The shirts will be white polo shirts featuring both the City of Indio logo and the Serna & Associates logo, subject to the City's approval.

The pants will be khaki-colored BOU/cargo pants. A prototype of the uniform will be submitted to the City for approval three weeks before the program's commencement.

Provided Golf Cart:

Serna will offer a white 4 -seater golf cart at the start of the program, with both the City of Indio and Serna logos. The City of Indio will provide the cart wrap, and the golf cart will be equipped with first aid equipment and a defibrillator. The cart wil l be stored in a designated City storage room off Miles Ave.

DT Ambassador Duties:

The dedicated DT Ambassador/s provided by Serna will perform various functions, including: Offering friendly and helpful assistance to visitors, providing information, directions, and recommendations on local businesses, attractions, events, and services.

Assisting with wayfinding, parking, and providing general support to enhance the overall downtown experience. Offering rides to downtown destinations when necessary.

Community Engagement:

The DT Ambassador/s will foster positive relationships with downt own businesses, property owners, residents, and other stakeholders. They will act as a liaison between the community and the City of Indio, addressing concerns, providing feedback, and promoting community participation in downtown events and initiatives.

Safety and Security:

The DT Ambassadors will maintain a visible presence in the downtown area to deter crime, vandalism, and safety concerns. They will report any suspicious activities or incidents to the Indio Police Department. Serna already provides a d edicated patrol service for the City of Indio, and the DT Ambassadors will be able to call for assistance if needed. The assigned DT Ambassador/s will be First Aid, AED, and CPR Certified.

Cleanliness and Maintenance:

The DT Ambassador/s will contribute to maintaining a clean and attractive downtown area by picking up litter and performing light sweeping as needed. They will report graffiti and maintenance issues to the appropriate departments and coordinate efforts with non-profit organizations.

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Sample Schedule:

The DT Ambassador/s will work the following schedule at program commencement:

Monday: Off
Tuesday: Off
Wednesday: 3 pm - 11 pm
Thursday: 3 pm - 11 pm
Friday: 3 pm - 11 pm
Saturday: 3 pm - 11 pm
Sunday: 1 pm - 9 pm
The schedule is subject to change based on business hours, peak times, and City direction.

Cost:

The proposed rate for Ambassador(s) by Serna & Associates is $35.00 per hour. The City retains the option to modify both the hours and the number of Ambassadors per shift as needed. This initiative aims to provide the adaptability to alter schedules. On ho lidays, a rate of one and a half times the regular rate will be applied.

This First Amendment and Extension of Term is for up to $100,000. This provides the city to remain flexible to the needs of Downtown as it continues to grow and expand on the number of businesses opened and events. Upon approval of the first amendment and extension, the contract with Serna and Associates will total $296,560.

Insurance:

The City of Indio is currently listed as a Certificate holder and additional insured on Serna & Associates' insurance policy.

Term:

The term of the Pilot Downtown Ambassador Program is for one (1) year. Upon agreement and approval from the City Manager and Serna & Associates, the term can be extended for one (1) additional year.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$55,000 In current year budget: Yes
Current FY General
Fund Impact:
$55,000 Budget adjustment: No
Next FY Financial
Impact:
$100,000 Strategic Objective: Downtown & Hwy 111
Revitalization
Source of funds: General Fund - Economic
Development Fund-Org-Object
Reference:
1011175-540003

Additional Financial Details:

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Approve a first amendment and extension to the Professional Services Agr... Page 350 of 959 The initial funding for the Downtown Indio Ambassador Program will be provided through a financial commitment from the City of Indio. In addition to the initial funding from the City of Indio, the Downtown Indio Ambassador Program will seek to create self-sustaining revenues through the operation of various events and activities. These events, such as Food Truck Fridays, Second Saturday, and Farmers Market, among others, will be designed to attract visitors, increase foot traffic in the downtown area, and generate revenue through sponsorships, advertising sales, and other means. The program will also explore opportunities for membership dues, grants, and donations to support its operations further.

The Downtown Indio Ambassador Program will be supported initially by the General Fund, but there are other future sources that could be available, including the creation of an Economic Development Corporation (EDC), and a business and property-based Business Improvement District (BID).

The Economic Development Corporation (EDC) would promote economic growth and development in the downtown area of Indio. The EDC would work to attract and retain businesses, create job opportunities, and stimulate economic activity in the downtown district. The EDC will also actively seek out grants, sponsorships, and other funding opportunities to support the Downtown Indio Ambassador Program and its initiatives.

The Business Improvement District (BID) would be a special assessment district formed by local businesses and property owners in the Downtown. The BID would work to improve the overall business environment, enhance the physical appearance of the downtown area, and promote economic vitality. The BID would collect assessments from businesses and property owners within its boundaries, and these funds will be used to support the Downtown Indio Ambassador Program and its operations.

The creation of an EDC and BID would provide additional financial resources to support the Downtown Indio Ambassador Program's initiatives, including the recruitment and training of ambassadors, event planning and coordination, marketing and advertising efforts, and other program-related expenses. These funding sources could play a critical role in ensuring the sustainability and success of the program as it works to create a welcoming and vibrant downtown environment in Indio.

ATTACHMENTS:

Attachment 1- Amendment No. 1 -Serna Associates Downtown Ambassadors

APPROVAL(S):

Carl S. Morgan, Dir. Of Economic Development Approved - 09 Aug 2023 Jillian Martins, Assistant City Attorney Approved - 09 Aug 2023 Alan Garcia, Accountant Approved - 10 Aug 2023
Bryan H. Montgomery, City Manager Approved - 10 Aug 2023

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AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES

AGREEMENT BETWEEN THE CITY OF INDIO AND STEVE

SERNA, AN INDIVIDUAL DOING BUSINESS AS (DBA) SERNA &
ASSOCIATES, INC., TO PROVIDE SECURITY SERVICES

RELATED TO THE DOWNTOWN AMBASSADOR PROGRAM

This Amendment No. 1 ("Amendment No. 1") is entered into on this 16th day of August 2023 and is to the certain Agreement for Professional Services between the City of Indio, a California municipal corporation ("City"), and Steve Serna, an individual d.b.a. Serna & Associates, Inc. ("Consultant") dated December 1, 2018.

RECITALS

A. Consultant and City of Indio entered into that certain Professional Services Agreement on December 1, 2018, enabling Serna & Associates to provide security services in the downtown area of the City of Indio (“Agreement”). Consultant currently provides the City with security services pursuant to the Agreement, which has been extended by mutual agreement of the parties. The most recent extension was executed September 16, 2022, which extended the term of the Agreement until November 31, 2023.

B. The City of Indio approved of the creation of the “City of Indio Downtown Ambassador Program” at its May 17, 2023, City Council meeting.

C. City desires to amend the Agreement to: (1) expand the scope of services to include requirements associated with the Downtown Ambassador Program ; and (2) to provide additional compensation for said work. (3) extend the term for one (1) year and provide additional one (1) year extension upon City Manager approval.

E. Consultant is qualified and agrees to provide the additional work pursuant to the terms of this Amendment No. 1 to the Agreement and their proposal (attached hereto as Exhibit “A-2”) and City agrees to the amendments contained herein.

NOW, THEREFORE , for good and valuable consideration, the parties agree as follows:

Section 1. Consultant shall provide the City with services related to the Downtown Ambassador Program as is more particularly described in Exhibit “ A-1” and “A -2” to this Amendment No. 1 ("Additional Services"). The Additional Services shall be provided pursuant to the terms of the Agreement.

Section 2. For the Additional Services under this Amendment No. 1, City agrees to compensate Consultant, and Consultant agrees to accept In no event shall the compensation under this Amendment No. 1 exceed $ 100,000.00 annually, including expenses.

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ection 3. Except as specifically amended by this Amendment No. 1, the remaining terms of the Agreement shall remain in full force and effect. In the event of a conflict between the provisions of this Amendment No. 1 and the provisions of the Agreement, the provisions of this Amendment No. 1 shall control.

I
n witness whereof the parties hereto have executed this Amendment No. 1 on the date set forth above.

EXEC
UTED this 16th day of August, 2023.

EVE SERNA, AN INDIVIDUAL
D.B.A. SERNA & ASSOCIATES INC.

EVE SERNA,
CEO
CITY OF INDIO:

BRYAN H. MONTGOMERY,

CITY MANAGER
ATTEST:

NTHIA HERNANDEZ, CMC

CITY CLERK

APPROVED AS TO FORM:

STEVEN GRAHAM,

CITY ATTORNEY

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EXHIBIT A-1

SCOPE OF ADDITIONAL SERVICES

Consultant shall provide security services for the Downtown Ambassador Program only as is further described in Exhibit “A -2”. With the exception of those services restated in Exhibit “A-1” below, the services under the existing " Agreement" with the City of Indio are not a part of this Amendment.

REQUIREMENTS Contractor shall adhere to the following:

1.1 Ensure that security personnel perform their duties in accordance with City policies, procedures, and conditions.

1.2 Assigned security personnel must pass a comprehensive pre- employment background/reference check, including live -scan. The Contractor shall absorb costs associated with such background/reference checks. The following are grounds for rejection for providing services to the City include: any felony conviction; any conviction for a substance abuse (felony or misdemeanor); any misdemeanor conviction of a crime of violence; any misdemeanor conviction for theft or moral turpitude; any gang affiliation; any excessive record of arrests; or any current or pending criminal investigation in which the personnel is a suspect. City retains the right to conduct its own background check at Contractor and its assigned security personnel. By submitting a proposal, Contractor, and the assigned security personnel consent to such an inquiry.

1.3 Ensure that security personnel possess the following minimum physical and mental capabilities: (eyesight, hearing, full range of use of fingers/limbs, ability for rapid mental and muscular coordination simultaneously; ability to climb a ladder and perform other similar physical activities).

1.4 Ensure that security personnel have normal concern for their own physical safety and shall take reasonable precautions not to place themselves in situations that would encourage violence or jeopardize the safety of other persons in the area.

1.5 Ensure the conduct and behavior of security personnel are beyond reproach.

Security personnel are to be polite, cooperative, and able to work in harmony with one another, visitors, and with other City employees.

1.6 Schedule s ecurity coverage for vacations, holidays, unscheduled absences, and/or other unplanned occurrences. Any costs (including overtime) associated with scheduling vacations, holidays, and absences are the responsibility of the Contractor.

1.7 Immediately transfer/remove security personnel from the account at the City’s request. This includes the assigned Supervisor or other person representing the Contractor.

1.8 Ensure that security personnel are fully aware of the political sensitivities that exist in a municipal government.

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1.9 Provide strict key control for all government keys and key cards. Keys issued to the successful Contractor are not to be duplicated. Should the Contractor lose a set of keys, or should it be shown that duplication of the keys by the Contractor has wrongfully occurred, the Contractor shall reimburse the City for the actual cost of re- keying all locks, doors, and gates to the facility.

1.10 Have a ready source of qualified individuals to perform the function and administer the employee selection and scheduling, billing, and administrative functions of the City’s agreement.

1.11 Maintain a reserve of immediately available alternates in the event a scheduled individual, because of illness or other reason, becomes unavailable to perform t he functions of the position, so that no position is ever uncovered.

1.12 Ensure that security personnel have photo identification and attach it properly to their uniforms in a readily visible manner.

1.13 Ensure that security personnel give undivided at tention to their duties and given responsibilities. Long, unnecessary conversations with other individuals shall be avoided.

1.14 Ensure that security personnel do not read, write, or study while on duty - except as may be required in connection with their duties and responsibilities.

1.15 Ensure that security personnel do not smoke or use other forms of tobacco products while on the job. These products are not allowed on City property.

1.16 Ensure that security personnel do not read, eat, or groom while in public view.

Ensure that security personnel do not wear headphones, conduct personal calls, or bring visitors onto the work site.

1.17 Ensure that security personnel are equipped with the necessary equipment and supplies to properly perform his or her duties.

1.18 Ensure that security personnel are not permitted to provide themselves with unauthorized personal equipment (e.g., firearms, chemical agents, knives, etc.).

1.19 Ensure that security personnel neither use nor have in their possession intoxicants and/or controlled substances on or near the job site. The odor of intoxicants and/or controlled substances on or about the Contractor's security and supervisory personnel shall cause the Contractor to immediately remove the individual(s) from the job site.

1.20 Ensure that security personnel comply with the duties and responsibilities as outlined in these specifications.

1.21 Ensure that all scheduling information is provided in military time (24- hour scale).

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1.22 Ensure prompt replacement of secur ity personnel in the event of illness or emergency.

1.23 Ensure that security personnel at all times remain awake and alert. The Contractor shall take appropriate disciplinary action in the event a security guard is found asleep (or appears to be asleep) while on duty.

1.24 Ensure that security personnel at all times keep their clothing neat, clean, and well-pressed. Uniforms shall not have rips, tears, visible repairs, missing buttons, excessive tightness, or bagginess.

1.25 Provide the necessary training and supervision for security personnel.

1.26 Provide sufficient unscheduled supervisor visit(s) to the City Sites.

1.27 Provide a clearly marked security guard vehicle(s) to its security personnel.

1.28 Maintain security records for access logs, inci dent reports (along with police reports) for a minimum of seven (7) years after the end of the calendar year. Daily security log/reports shall be held for a minimum of two (2) year s after the end of the calendar year. The Contractor's Point of Contact shal l develop and implement a paperwork management program.

1.29 Review the daily security guard log/report and submit copies to the Indio Police Department on a bi-weekly basis.

1.30 Designate a point of contact for the City who shall coordinate all issues r elated to this agreement, including staffing, performance, etc. ("Point of Contact") . Consultant shall not replace the Point of Contact unless prior notice is given to, and the replacement approved by the City.

1.31 Maintain security records for access l ogs, incident reports (along with police reports) for a minimum of seven (7) years after the end of the calendar year. Daily security log/reports shall be held for a minimum of two (2) year s after the end of the calendar year. The Contractor's Point of Cont act shall develop and implement a paperwork management program.

1.32 Contractor shall develop a set of "Post Orders" documenting both general procedures as well as site- specific responsibilities. Post Orders shall be prepared prior to the commencement of the contract and must be reviewed and approved by the City's representative within thirty (30) days from commencement of services to the City.

1.33 Each security guard employed by the Contractor shall at a minimum: (i) possess a valid and current securit y guard registration card, with photo identification, as issued pursuant to the State of California, Department of Consumer Affairs, Bureau of Security and Investigative Services; (ii) possess at least twelve (12) months experience as an industrial secur ity guard or security officer; (iii) have a valid Class C California Driver License and (iv) have the ability to fluently speak and write English.

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1.34 Within ten (10) working dates after receiving notice that the agreement with the City has been termina ted, and as a condition of final invoice payment by the City to the Contractor, the Contractor shall provide a list of all employees that are providing such services to the City buildings and facilities, including the name, address, phone number, date of hire, and employment classification of each covered employee.

Such services shall also be provided in a manner consistent with the attached Staff Report: “Approval of the Downtown Ambassador Program to enhance hospitality and safety in downtown Indio.”

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EXHIBIT “A-2”

SERNA & ASSOCIATES, LLC PROPOSAL

Serna & Associates City of Indio Downtown Ambassador Program Services Proposal attached.

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EXHIBIT “A-3”

Staff Report dated May 17, 2023
Downtown Ambassador Program to Enhance Hospitality and Safety in Downtown Indio

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City Council
May 17, 2023

STAFF REPORT

To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Carl S. Morgan, Dir. Of Economic Development Subject: Approval of the Downtown Ambassador Program to enhance hospitality and safety in downtown Indio.

RECOMMENDATION:

Approve the Downtown Ambassador Program to enhance hospitality and safety in downtown Indio.

SUMMARY:

The Downtown Indio Ambassadors program is a proactive approach designed to enhance the vibrancy and vitality of Downtown Indio to ensure a welcoming and safe environment for visitors, residents, and businesses. The program aims to improve the overall downt own experience by providing assistance, guidance, and maintenance to achieve a clean and attractive downtown area.

The Downtown Indio Ambassadors will serve as knowledgeable guides, an extra layer of safety, and hospitality ambassadors for the Downtown community.

BACKGROUND INFORMATION:

Downtown Indio is in the middle of a renaissance, with 18 new projects under construction or planned to start in the near future. Over $200 million in public and private investments coming to Downtown, which include Indio Taproom, Italica, Gabinos Creperie, Desert Beer, Co, Little Street Music Hall, College of the Desert campus expansion and Child Development Center, over 110 mixed -use apartment units, and more. Maintaining a clean and safe downtown is imperative to the suc cess of Downtown Indio. Having knowledgeable and helpful Ambassaors will help add an extra layer of security and act as the eye and ears of Downtown.

The program will provide numerous benefits, including:

Enhanced Visitor Experience : The ambassadors wi ll act as attentive and welcoming hosts for visitors to enhance the downtown experience. As they will serve as the eyes and ears of downtown Indio, they will be readily available to provide assistance and valuable information, ensuring visitors have an enjoyable and memorable time.

Improved Safety and Security : The presence of the Downtown Indio Ambassadors will actively counteract any misconceptions about downtown safety by creating a reassuring environment for customers and visitors. Through the implementation of the "see something, say something" technique, the ambassadors will proactively address any issues that may arise and swiftly bring in the appropriate resources to resolve them in real-time. By taking swift action and maintaining a vigilant presence, the

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Clean and Attractive Downtown: The ambassadors' efforts in cleanliness and maintenance will help keep downtown Indio clean, attractive, and inviting to visitors and residents alike. This will contribute to the overall image and reputation of Downtown and create a positive impression for visitors and businesses.

Community Engagement : The ambassadors will serve as a resource to br idge the community, fostering positive experiences and building relationships with Downtown visitors. Their engagement with promote improvement, for opportunities community help will stakeholders local identify participation, and build a sense of pride and ownership in downtown Indio.

The downtown Indio Ambassadors program is a collaborative effort between the City of Indio and local stakeholders, including businesses, property owners, and community organizations. The program will be administered by the C ity of Indio and operated by a team of trained ambassadors who will be responsible for fulfilling the following duties:

Visitor Assistance : The ambassadors will be the face of downtown Indio and provide visitors a friendly and welcoming presence. They wi ll offer information, directions, and recommendations on local businesses, attractions, events, and services. They will also assist with wayfinding, parking, and provide general assistance to visitors to enhance their overall experience in downtown.

Community Engagement : The ambassadors will foster positive relationships with downtown businesses, property owners, residents, and other stakeholders. They will act as liaisons between the community and the City of Indio, addressing concerns, providing fee dback, and gathering input on ways to improve the downtown experience. The ambassadors will also promote downtown events, activities, and initiatives to encourage community participation and engagement.

Safety and Security: The ambassadors will patrol the downtown area and maintain a visible presence to deter crime, vandalism, and other safety concerns. They will report any suspicious activities or incidents to Indio Police Department.

Cleanliness and Maintenance: The ambassadors will help maintain a clean and attractive downtown by performing tasks such as litter pick up, sidewalk sweeping, graffiti removal, and reporting maintenance issues to the Public Works department. They will also work closely with non -profit organizations to coordinate efforts in keeping downtown Indio clean and well-maintained.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
0 In current year budget: N/A
Current FY General
Fund Impact:
0 Budget adjustment:

Next FY Financial
Impact:
200,000 Strategic Objective: Downtown & Hwy 111
Revitalization
Source of funds: General Fund Fund-Org-Object
Reference:
1011175-540003

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The initial funding for the Downtown Indio Ambassador Program will be provided through a financial commitment from the City of Indio. In addition to the initial funding from the City of Indio, the Downtown Indio Ambassador Program will seek to create self-sustaining revenues through the operation of various events and activities. These events, such as Food Truck Fridays, Second Saturday, and Farmers Market, among others, will be designed to attract visitors, increase foot traffic in the downtown area, and generate revenue through sponsorships, advertising sales, and other means. The program will also explore opportunities for membership dues, grants, and donations to support its operations further.

ATTACHMENTS:

Downtown Ambassador Program

APPROVAL(S):

Carl S. Morgan, Dir. Of Economic Development Approved - 09 May 2023 Steven Graham, City Attorney Approved - 10 May 2023
Rob Rockwell, Asst. City Manager & Dir. Of Finance Approved - 11 May 2023 Bryan H. Montgomery, City Manager Approved - 11 May 2023

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Purpose:

The downtown Indio Ambassadors program is a proac�ve approach designed to enhance the vibrancy and vitality of downtown Indio to ensure a welcoming and safe environment for visitors, residents, and businesses. The program aims to improve the overall downtown experience by providing assistance, guidance, and maintenance to achieve a clean and atrac�ve downtown area. The downtown Indio Ambassadors will serve as knowledgeable guides, an extra layer of safety, and hospitality ambassadors for the downtown community.

Program Overview:

The downtown Indio Ambassadors program is a collabora�ve eﬀort between the City of Indio and local stakeholders, including businesses, property owners, and community organiza�ons.

The program will be administered by the City of Indio (Chamber or EDC) and operated by a team of trained ambassadors who will be responsible for fulﬁlling the following du�es:

1. Visitor Assistance: The ambassadors will be the face of downtown Indio and provide visitors a friendly and welcoming presence. They will oﬀer informa�on, direc�ons, and recommenda�ons on local businesses, atrac�ons, events, and services. They will also assist with wayﬁnding, parking, and provide general assistance to visitors to enhance their overall experience in downtown.

2. Community Engagement: The ambassadors will foster posi�ve rela�onships with downtown businesses, property owners, residents, and other stakeholders. They will act as liaisons between the community and the City of Indio, addressing concerns, providing feedback, and gathering input on ways to improve the downtown experience. The ambassadors will also promote downtown events, ac�vi�es, and ini�a�ves to encourage community par�cipa�on and engagement.

3. Safety and Security: The ambassadors will patrol the downtown area and maintain a visible presence to deter crime, vandalism, and other safety concerns. They will report any suspicious ac�vi�es or incidents to Indio Police Department.

4. Cleanliness and Maintenance: The ambassadors will help maintain a clean and atrac�ve downtown by performing tasks such as liter pick up, sidewalk sweeping, graﬃ� removal, and repor�ng maintenance issues to the Public Works department. They will also work closely with non-proﬁt organiza�ons to coordinate eﬀorts in keeping downtown Indio clean and well-maintained.

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Program Beneﬁts:

The downtown Indio Ambassadors program will provide numerous beneﬁts to the downtown community, including:

1. Enhanced Visitor Experience: The ambassadors will act as aten�ve and welcoming hosts for visitors to enhance the downtown experience. As they will serve as the eyes and ears of downtown Indio, they will be readily available to provide assistance and valuable informa�on, ensuring visitors have an enjoyable and memorable �me.

2. Improved Safety and Security: The presence of the Downtown Indio Ambassadors will ac�vely counteract any misconcep�ons about downtown safety by crea�ng a reassuring environment for customers and visitors. Through the implementa�on of the "see something, say something" technique, the ambassadors will proac�vely address any issues that may arise and swi�ly bring in the appropriate resources to resolve them in real-�me. By taking swi� ac�on and maintaining a vigilant presence, the ambassadors will help ins�ll a sense of safety and security, dispelling any nega�ve percep�ons about downtown Indio.

3. Clean and Atrac�ve Downtown: The ambassadors' eﬀorts in cleanliness and maintenance will help keep downtown Indio clean, atrac�ve, and invi�ng to visitors and residents alike. This will contribute to the overall image and reputa�on of downtown and create a posi�ve impression for visitors and businesses.

4. Community Engagement: The ambassadors will serve as a resource to bridge the community, fostering posi�ve experiences and building rela�onships with downtown visitors. Their engagement with local stakeholders will help iden�fy opportuni�es for improvement, promote community par�cipa�on, and build a sense of pride and ownership in downtown Indio.

Funding:

The downtown Indio Ambassador Program will be supported by various funding sources, including the crea�on of an Economic Development Corpora�on (EDC), and a business and property-based Business Improvement District (BID).

The ini�al funding for the Downtown Indio Ambassador Program will be provided through a ﬁnancial commitment from the City of Indio. In addi�on to the ini�al funding from the City of Indio, the Downtown Indio Ambassador Program will seek to create self-sustaining revenues through the opera�on of various events and ac�vi�es. These events, such as Food Truck Fridays, Second Saturday, and Farmers Market, among others, will be designed to atract visitors, increase foot traﬃc in the downtown area, and generate revenue through sponsorships, adver�sing sales, and other means. The program will also explore opportuni�es for membership dues, grants, and dona�ons to support its opera�ons further.

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The Economic Development Corpora�on (EDC) will be established to promote economic growth and development in the downtown area of Indio. The EDC will work to atract and retain businesses, create job opportuni�es, and s�mulate economic ac�vity in the downtown district.

The EDC will also ac�vely seek out grants, sponsorships, and other funding opportuni�es to support the Downtown Indio Ambassador Program and its ini�a�ves.

The Business Improvement District (BID) will be a special assessment district formed by local businesses and property owners in the downtown area. The BID will work to improve the overall business environment, enhance the physical appearance of the downtown area, and promote economic vitality. The BID will collect assessments from businesses and property owners within its boundaries, and these funds will be used to support the Downtown Indio Ambassador Program and its opera�ons.

The crea�on of an EDC and BID will provide addi�onal ﬁnancial resources to support the Downtown Indio Ambassador Program's ini�a�ves, including the recruitment and training of ambassadors, event planning and coordina�on, marke�ng and adver�sing eﬀorts, and other program-related expenses. These funding sources will play a cri�cal role in ensuring the sustainability and success of the program as it works to create a welcoming and vibrant downtown environment in Indio.

Program Implementa�on:

The Downtown Indio Ambassadors program will be implemented in the following steps:

1. Establish a clear chain of command and repor�ng structure for the Downtown Ambassador program to ensure smooth implementa�on and coordina�on among team members.

2. Assign ambassadors to speciﬁc shi�s, loca�ons, or tasks based on their strengths and exper�se to op�mize their eﬀec�veness in providing assistance and maintaining a clean and safe downtown environment.

3. Provide ambassadors with the necessary resources, tools, and uniforms to carry out their du�es eﬀec�vely, such as uniforms, hats, name badges, radios, and cleaning supplies.

4. Implement regular performance evalua�ons and feedback sessions to monitor the progress and performance of Downtown Ambassadors, recognize their achievements, and address any areas that need improvement.

5. Foster strong partnerships and collabora�ons with local businesses, law enforcement, and other stakeholders to create a cohesive and collabora�ve approach to downtown revitaliza�on eﬀorts.

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6. Con�nuously evaluate the eﬀec�veness of the Downtown Ambassador program through feedback from the community, data collec�on, and performance metrics, and make necessary adjustments to improve its impact on downtown revitaliza�on goals.

By implemen�ng a robust recruitment and training program, the Downtown Ambassador program can ensure that ambassadors are equipped with the necessary skills, knowledge, and resources to serve as guides and maintain safety, and cleanliness in the downtown area, contribu�ng to the overall success of downtown revitaliza�on eﬀorts.

Metrics for Downtown Ambassador Program Success:

1. Customer Sa�sfac�on: Measure the sa�sfac�on level of downtown visitors, residents, and businesses through regular surveys or feedback. This can include ra�ngs and feedback on the Downtown Ambassadors' helpfulness, friendliness, responsiveness and overall sa�sfac�on with the program's services.

2. Safety Incidents: Track the number and types of safety incidents or issues reported or resolved by Downtown Ambassadors, such as vandalism, the�, or other criminal ac�vi�es. This can help gauge the program’s eﬀec�veness in maintaining a safe downtown environment.

3. Cleanliness Standards: Monitor the cleanliness and �diness of the downtown area by measuring the frequency and eﬀec�veness of cleaning ac�vi�es performed by Downtown Ambassadors, such as liter removal, graﬃ� removal, and maintenance of public ameni�es. This can be assessed through regular inspec�ons and repor�ng.

4. Business Engagement: Evaluate the level of engagement and collabora�on between Downtown Ambassadors and local businesses, such as the frequency of interac�ons, feedback from businesses, and involvement in business-related events or ini�a�ves. This can help gauge the program's eﬀec�veness in fostering posi�ve rela�onships with the business community.

5. Community Percep�on: Monitor the percep�on of the Downtown Ambassador program within the local community through public feedback, media coverage, and social media sen�ment analysis. This can help assess the program's reputa�on, public image, and overall community support.

6. Program Eﬃciency: Track the eﬃciency and eﬀec�veness of the program's opera�ons, such as the number of shi�s covered, areas patrolled, or tasks completed by Downtown Ambassadors, and assess their ability to meet established targets or goals.

7. Cost-Beneﬁt Analysis: Conduct a cost-beneﬁt analysis of the Downtown Ambassador program, including the program's budget, staﬃng costs, and other associated expenses, compared to the tangible beneﬁts achieved, such as increased visitor traﬃc, business revenues, and community sa�sfac�on.

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Regular monitoring and analysis of these metrics provide valuable insights into the success and impact of the Downtown Ambassador program, helping to iden�fy areas of improvement, measure progress toward program goals, and demonstrate the program's value to stakeholders and the community.

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EXHIBIT B-1

COMPENSATION FOR ADDITIONAL SERVICES

The compensation to be paid for the Additional Services consisting of Downtown Ambassador Program security services is more particularly described in the attachment to this Exhibit B-1.

The annual not to exceed amount for this First Amendment is $100 ,000.00; and as such, in no event, shall City remit more than that amount to Consultant per year.

Ambassador Rate: Unarmed security officer rate is: $35.00/hour.

The above listed h ourly rate is time and a half ($50.50/hour) for holidays :
(Thanksgiving Day, Memorial Day, Christmas Day, New Years Day, Veterans Day (If employee is a veteran), and Independence Day).

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City Council
August 16, 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 the amount of $9,034,730 for the FY 23/24 Pavement Management Project (Project No. SMPMP)

RECOMMENDATION:

Approve the plans and specifications for the FY 23/24 Pavement Management Project (Project No.

SMPMP); and award a construction contract to ATP General Engineering Contractors in the amount of $9,034,730.

SUMMARY:

On July 26, 2023, the City received three (3) sealed bids for the Pavement Management Project (Project No. SMPMP). After performing due diligence, staff determined that ATP General Engineering Contractors (ATP) is the lowest responsible bidder per the bid opening. The paving work will be conducted on residential, secondary, and arterial roadways. A map of the areas is provided as Attachment 1.

BACKGROUND INFORMATION:

The proposed contract will allow the City to move forward with street resurfacing to incr ease the lifespan of the City’s streets and roads infrastructure. Unfortunately, many City streets have not received the required preventive maintenance and are now in a poor condition. In order to bring these roads back up to community standards, staff has identified the use of an asphalt pavement grind and overlay treatment as the most cost effective method, repairing residential, secondary and arterial roads.

The project was advertised on June 20, 2023. The City received and opened bids on July 26, 20 23.

A total of three (3) sealed bids were received. A summary of the bids received is provided below.

Bidder’s Name Location Bid Amount
ATP General Engineering Contractors San Diego, CA $ 9,034,730 Granite Construction Company Indio, CA $ 9,784,879
Matich Corporation San Bernardino, CA $10,330,000

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 qualified to perform the work within the project specifications. The engineering cost estimate was $10,100,000. The bid amount was 11% AGENDA ITEM #8.17
Construction contract with ATP General Engineering Contractors in the am... Page 373 of 959 lower than t he cost estimate, reflecting the economies of scale, meaning the City received better prices due to the larger quantity of work to be done.

On August 2, 2023, Granite Corporation, the second lowest bidder, submitted a timely bid protest, a copy of which is provided as Attachment 2. The basis of their protest was they felt ATP bid package was incomplete, there was an error in the address of a s ubcontractor, and the percentage of work being done by a subcontractor was not correct, therefore ATP was going to renegotiate after the bids were opened.

On August 7, 2023, ATP General Engineering Contractors, submitted a response to Granite’s bid protest letter, which is provided as Attachment 3. Their response details that the items brought forward by Granite Corporation were not material to the bid, does not provide ATP with an advantage over other bidders, and does comply with the City’s requirements.

The City Engineer has reviewed the bids for the project and in his opinion, the project bid documents are reasonable, and ATP submitted a responsive bid. The City has a right to waive minor bid irregularities, as it deemed to be in the best interest of the City, when the irregularities are not material to the bid. The City’s response to the bid protest is provided as Attachment 4.

Therefore, the City Engineer recommends that the City reject the bid protest by Granite Corporation, approve the project bid documents, which are on file in the Department of Public Works, and award the construction contract to ATP General Engineering Contractors. Construction is scheduled to take place starting in September 2023 and continuing on to May 2024.

FINANCIAL SUMMARY:

Current FY Financial
Impact:
$9,034,730 In current year budget: Yes
Current FY General
Fund Impact:
$9,034,730 Budget adjustment: No
Next FY Financial
Impact:
$0 Strategic Objective:

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

Additional Financial Details:

The City will be using General Fund resources that were set aside for the construction of the FY 23/24 Pavement Management Project, per the approved FY 23/24 Capital Improvement Program budget.

ATTACHMENTS:

Attachment 1
Attachment 2
Attachment 3
Attachment 4

APPROVAL(S):

Timothy Wassil, Public Works Director Approved - 09 Aug 2023

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AGENDA ITEM #8.17
Construction contract with ATP General Engineering Contractors in the am... Page 374 of 959 Steven Graham, City Attorney Approved - 10 Aug 2023
Samantha Lopez, Finance Manager Approved - 10 Aug 2023
Bryan H. Montgomery, City Manager Approved - 10 Aug 2023

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PROJECT LOCATION MAP

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COUNCIL MEETING DATE
NWE
E N G I N E E R I N G S E R V I C E SLEGENDSTREETS FOR GRIND AND OVERLAYCITY BORDERAUGUST 16, 2023OVERVIEW MAP S

NOT TO SCALE
JEFFERSON STMADISON STAVENUE 50AVENUE 48

JACKSON ST
HWY 111HWY 111MILES AVEFRED WARING DR

MONROE ST

INDIO BLVD
AVENUE 52
AVENUE 46

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CALIFORNIA PALMS II
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CITY HALL PARKING LOT
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DESERT GARDENS

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MARILYN ST, VERA LN, LORRAINE ST
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MISSISSIPPI

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MILES PARK PARKING LOTS
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AGENDA ITEM #8.17
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BID PROTEST

GRANITE CONSTRUCTION COMPANY

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AGENDA ITEM #8.17
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ugust 2, 2023 TRANSMITTED VIA E-MAIL
C
ity of Indio
100 Civic Center Mall
Indio, California 92201
A
ttn: Cynthia Hernandez, City Clerk
R
e: 23/24 Pavement Management Project
City Project SMPMP
Su
bj: Protest of the Bid Submitted by Martin Marietta San Diego Aggregates LLC dba ATP General Engineering Contractors
D
ear Ms. Hernandez:

P
er the Instructions to Bidders (Pages IB-1 and IB-2), this serves as a formal protest of the bid submitted by Martin Murrieta San Diego Aggregates LLC dba ATP General Engineering Contractors (“ATP”) on the above-referenced Contract because ATP’s bid contains several material defects that render its bid non-responsive: ATP failed to submit a complete bid package, ATP’s subcontractor listing form contained material errors, and ATP’s bid is materially unbalanced (in particular with respect to the percentage of work listed for Pavement Rehab Company). As explained herein, such material defects in ATP’s bid are sufficient grounds for finding their bid nonresponsive.

G
ranite Construction Company (“Granite”) timely submitted a responsive bid to the City of Indio (“City”) for the above-referenced Contract on July 26, 2023. ATP was the apparent low bidder and Granite was the second low bidder.

ATP FAILED TO SUBMIT A COMPLETE BID PACKAGE
I
n its Questionnaire Form on Page B-7, ATP answered “yes” for Question 19d. Question 19 asks the contractor to explain any “yes” answers and ATP failed to do so. This questionnaire is directly related to bidder responsiveness and responsibility and should be answered as instructed. Furthermore, the bid documents clearly state that “failure to provide truthful answers to the questions above or in the following References Form may result in the Bid being deemed non-responsive.”

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August 2, 2023

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38 000 Monroe Street, Indio, CA 92203 | Telephone: 760.775.7500 | Facsimile: 760.775.8229 ATP’s SUBCONTRACT LISTING FORM DOES NOT COMPLY WITH THE SUBLETTING AND SUBCONTRACTOR FAIR PRACTICES ACT AND THE CITY’S BID SPECIFICATIONS The Subletting and Subcontracting Fair Practices Act, California Public Contract Code 4100 et seq. (Subcontractor Listing Law) requires bidders for public contracts to list the name, the location of place of business, the California contractor license number, and DIR contractor registration number of each subcontractor who will perform work in an amount in excess of one-half of one percent (0.5%) of the prime contractor's total bid or $10,000, whichever is greater. Cal. Pub. Contract Code, § 4104(a). The bidder must also set forth the portion of the work that will be done by each subcontractor. Cal. Pub. Contract Code, § 4104(b).

T
he Subcontractor Listing Law also requires all officers, departments, boards or commissions taking bids for public work or improvements to include the above requirements in the bid specifications. Cal. Pub. Contract Code § 4104.

A
ccordingly, the City’s bid specifications and Designation of Subcontractors form calls for the information required by the Subcontractor Listing Law. Specifically, the City’s specifications and Designation of Subcontractors form instructs bidders to submit the following information with the bid: (a) the name, (b) the address and phone number/location and place of business, (c) the California contractor license number, (d) the DIR Contractor Registration Number, (e) the type of work, and (f) the percentage of total of each subcontractor who is required to be listed under the Subcontractor Listing Law.

O
n its subcontractor list (Page B-14), ATP listed the address of Pavement Rehab Company as 810 E Mandevilla Way, Corona CA 92879. However, this is the address of a private residence and is not the business address for the subcontractor listed with the Contractor’s State License Board or the California Secretary of State.

N
otably, the business address included in the Contractor’s License Detail for this contractor’s license in the Contractor’s State License Board’s license database is completely different from the address listed on ATP’s subcontractor list form: CARTER ENTERPRISES GROUP INC. dba PAVEMENT REHAB CO., 2890 E LA CRESTA AVE, ANAHEIM, CA 92806, Business Phone Number:
(714) 238-1444. (This is the same business address listed with the California Secretary of State).

Sin
ce ATP failed to properly list the business address of Pavement Rehab Company, its subcontractor list is not in compliance with the City’s bid specifications or the Subcontractor Listing Law, including, specifically, Public Contract Code Section 4104.

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August 2, 2023

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38 000 Monroe Street, Indio, CA 92203 | Telephone: 760.775.7500 | Facsimile: 760.775.8229 PERCENTAGE OF WORK LISTED FOR PAVEMENT REHAB COMPANY; ATP’S BID IS MATERIALLY

UNBALANCED
I
n its subcontractor list (on Page B-14), ATP listed Pavement Rehab Company for 20% of the total bid for “PCC”. When calculating the dollar value of this listing, it results in a commitment of $1,806,946 worth of PCC work on the Contract to Pavement Rehab Company. Under the “type of work” category on the subcontractor list, ATP just states “PCC” for Pavement Rehab Company’s work and is unclear as to what portion of the PCC work ATP will subcontract to Pavement Rehab Company. This obscure listing description could represent just the pouring of the PCC ramps, just the removal of the PCC ramps, or both. Using an obscure listing description, allows ATP to negotiate with Pavement Rehab Company after the bid, resulting in an advantage not afforded to other bidders.

I
n addition, it is clear that ATP’s bid is materially unbalanced. Title 23 of the Code of Federal regulations, Section 635.102 provides that a bid is mathematically unbalanced if the bid contains “lump sum or unit bid items which do not reflect reasonable actual costs plus a reasonable proportionate share of the bidder's anticipated profit, overhead costs, and other indirect costs.” Per the line-item pricing submitted by ATP, ATP bid the removal of the PCC ramps for $391,200 and the replacement of the PCC ramps for $782,400. These amounts are well short of the amount that ATP committed to subcontract to Pavement Rehab Company.

Such unbalanced listing gives rise to two scenarios, both of which impact the pricing submitted by ATP:
(1
) Under the first scenario, ATP is in fact subcontracting $1,806,946 worth of PCC work to Pavement Rehab Company. If this is the case, ATP’s bid is materially unbalanced based upon the PCC line-item pricing mentioned above. Since a significant amount of money has been priced into other items, the PCC line-item pricing does not reflect the price of performing the work in the contract. As a result, the City would have no way of knowing what they are paying for the work that is being constructed by ATP. (2
) Under the second scenario, the line-item pricing in the bid submitted by ATP is reflective of the cost to perform the work. In that case, ATP has grossly overstated the work to be subcontracted to Pavement Rehab Company. If ATP doesn’t subcontract to listed subcontractor Pavement Rehab Company the $1,806,946 worth of PCC work that was committed to them, ATP would be further violating the Subcontractor Listing law (in particular, the provision prohibiting substitution of a listed subcontractor absent specified circumstances) and subject to penalties and potential disciplinary action per California Public Contract Code Section 4110 and 4111. Public Contract Code Section 4110 provides:

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August 2, 2023

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38 000 Monroe Street, Indio, CA 92203 | Telephone: 760.775.7500 | Facsimile: 760.775.8229 A p
rime contractor violating any of the provisions of this chapter violates his or her contract and the awarding authority may exercise the option, in its own discretion, of (1) canceling his or her contract or (2) assessing the prime contractor a penalty in an amount of not more than 10 percent of the amount of the subcontract involved, and this penalty shall be deposited in the fund out of which the prime contract is awarded.

In any proceedings under this section the prime contractor shall be entitled to a public hearing and to five days’ notice of the time and place thereof.

THE DEFECTS IN ATP’S BID ARE MATERIAL
A b
id containing a material deviation must be rejected as non-responsive. A deviation in a bid is material if the variation would give the low bidder an unfair advantage over other bidders.

H
ere, ATP’s violations of the Subcontractor Listing Law and City’s bid specifications created an advantage for ATP not available to other bidders. The defects in its bid violated minimum State mandates and afforded ATP with the opportunity to bid shop a significant element the Contract and potentially obtain lower pricing to perform the PCC work after bid opening. In addition, its unbalanced pricing could result in unreasonably high prices for Contract performance.

SU
MMARY
Su
mmarily, we ask the City of Indio to consider the following:
• Incomplete Bid Package: ATP failed to include relevant information required to be provided in the questionnaire. This clearly violates the bidding instructions. • Error in Subcontractor Listing Form: ATP failed to properly list Pavement Rehab Company in violation of both the City’s bid specifications and the State Subcontractor Listing Law (including Public Contract Code Section 4104). • Percentage of Work Listed for Pavement Rehab Company/Unbalanced Bid: Based upon the percentage listed for Pavement Rehab, ATP has either materially unbalanced their bid or overcommitted the amount that will be subcontracted to Pavement Rehab Company. Either scenario renders their bid materially defective and non-responsive.

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Indio City CouncilAugust 16, 2023

Indio City Council
August 16, 2023