Approval of Project Agreement for Tourism Activation with Revolution Mar... Page 202 of 225
PROJECT AGREEMENT
On-Site Execution for
City of Indio at Stagecoach 2024
This Project Agreement (the “Agreement” or “Project Agreement”) is effective as of: 3/18/24 (“Effective Date”) by and between The City of Indio with the address set forth on the signature page hereto (“Client”) and Revolution Marketing, LLC (“Company”) for Company’s production of the services (the “Services”) for the Client’s “Project” as set forth herein.
Project: City of Indio at Stagecoach 2024
Scope of Services
The nature of Company’s engagement requires Company to exercise its professional judgment with respect to various business-related issues. In rendering consulting, creative, and production services Company must retain the right to judge the nature and scope of the work required in order to comply with professional standards and enable Company to protect Client’s interests. Company will exercise its professional judgment in order to minimize Client’s overall liabilities.
Company shall furnish or provide all of the materials (including equipment and supplies, uniforms, communication equipment and any other equipment) and all other items necessary to perform the Services and to carry out and perform all of Company's obligations under or pursuant to this Agreement. If the Company is furnishing or providing equipment under this Agreement, Company hereby represents, warrants and covenants to Client that: (a) all equipment will be free from defects in workmanship and material and conform in all material respects to all speci fications provided by Client, (b) all equipment shall
be of high quality material and shall be free of liens and encumbrances except for liens or encumbrances arising in the normal course of business by operation of law that are not at the particular time in question due and delinquent, (c) the equipment shall comply with all laws and regulations applicable to the equipment, and (d) the equipment is fit for its intended purpose.
Company will be responsible for the installation and dismantle of Client’s entertainment marketing program at the following Venue(s) on the date(s) as described in detail below and in accordance with any applicable Schedules to this Agreement.
On-Site Execution
Stagecoach Festival 2024
April 26-28th, 2024
81800 Avenue 51,
Indio, CA 92201
Company will be responsible for managing the on-site production logistics; management of Client build at Venue, speci fic
experience to be mutually approved:
City of Indio “Giddy-up Lounge”
● Delivery, installation, dismantle, storage & proper disposal ● Construction of (mutually agreed upon) consumer experience/activation to include the following:
o VIP T ent with Lounge Areas, T ables, Photo Moment, Engagement Activity, and BOH Site Infrastructure
● 20’x20’ Main Activation Space
o Single Glass door entrance
o Single Glass door exit
o Back door exit to BOH
1
Approval of Project Agreement for Tourism Activation with Revolution Mar... Page 203 of 225 o Flooring (Turf)
o AC unit
o Power
o Rental Furniture
o Rugs
o Artwork / Decor
o PA System
o T ent liner - Pipe + Drape
o Engagement Activity- Mural Coloring Wall
o Custom Photo Moment
● 10’x20’ BOH T ent
o flooring
o tables
o chairs
Field Services & Staff
Company will be responsible for managing the following on-site production logistics:
● All install & dismantle labor
● Trucking to/from site
● Revolution Marketing Senior Producer + Production Assistant Event, Site & Promotional
● Coordinating with the Client and Venue production and management to ensure execution deliverables and most favorable location of installations and secure necessary approvals with Venue production staff. ● Company to negotiate in the best interest of both Company and Client with all third-party vendors as required - i.e. printing, installation, fabrication, etc. as able
● Company to coordinate all travel, logistics andfield communications for Company field staff ● Company to provide appropriate insurance coverage and supply Client with certificates of additional insured Assumptions
● Client has secured all on-site rights from Venue / Festival ● Client will provide the following:
o Any additional activation materials not outlined here as needed including music, personnel, photo experience, refresh station supplies, and samples.
o Brand Ambassadors
▪ training
▪ uniforms
▪ transportation to/from
Duration
● The development and management of the Project will begin on approximately March 1st, 2024 and extend through April 28th, 2024.
Project Administration
Provide project management support to assist in program preparation as needed prior to launch and ongoing account management.
Company will provide staff to manage event pre-production, build, and breakdown only.
The responsibilities of the Producer include:
● Project management, program development and execution ● Assist in developing layout of Client activation space 2
Approval of Project Agreement for Tourism Activation with Revolution Mar... Page 204 of 225 ● Manage any and all third-party vendors as mutually agreed ● Oversee all event planning, scheduling, and logistics, coordinating directly with Venue as required ● Proactively manage budget and invoicing process, provide immediate feedback with potential issues regarding the budget in accordance with Schedule B
● Review communications documents relating to the event as appropriate ● Manage overall items assigned to Company
● Act as the day-to-day account manager and point of contact for Client during development, on-site install and dismantle only, and post event.
Confidentiality
Each of the parties acknowledge that in the performance of the Services, either party may have access to information which is con
fidential to, or a trade secret of, the other party. Both parties agree not to disclose any such information, regardless of the form or format in which, or means by which, either party becomes aware of such information, to any third party without the speci
fic written authorization from the owning party. For the purposes of this Agreement, trade secrets and con fidential information shall not include information that (i) is generally available to the public (other than as a result of a disclosure by a party or its af
filiates), or (ii) is available to such party on a non-con fidential basis from a source that is not prohibited from disclosing such information to such party.
Indemnification
T o the extent permitted by law, each party hereby agrees to protect, indemnify, defend and hold harmless the other and their respective managers, officers, members, partners, affiliates owners, shareholders, beneficiaries, and their respective employees, agents and contractors (collectively, “Representatives”) against all third party claim/losses, liabilities, damages, expenses and costs arising out of or connected with the negligence or intentional misconduct of such party or its Representatives except to the extent and percentage of the negligence of the other party or its Representatives. Neither party shall waive or be deemed to have waived by reason of this paragraph, any defense which it may have with respect to such claims.
Fees and Billing
Upon approval of this Project Agreement, Client agrees to the terms outlined by Company. As compensation in full for services performed under this Agreement, Company shall invoice Client, and Client shall pay Company in accordance with the fees and schedule set forth in the final proposal.
Any additional costs, hourly or other, as well as incremental charges beyond the approved fee will require written approval by the Client. Client shall reimburse Company for any expenses as have been authorized in advance in writing as deemed necessary by both parties within 10 days of receipt of the invoice.
It is understood that in the event Company does not receive prompt payment, Company shall not be required to perform any further services until Company receives payment, whereupon Company will resume work as soon as the individuals working on the engagement become available, and that Company shall not be responsible for any consequences which may result from such a delay.
Payments received after an agreed upon timeline will be subject to 2.5% interest per month after payment due date on outstanding amount(s) due.
In the event of the cancellation of a Project after the Agreement is agreed, Company will charge for all work undertaken and expenses incurred. Company also reserves the right to charge a twenty percent (20%) cancellation fee up to 21 days before the completion of the Project.
Rights and Protections
Client retains the right to terminate the Services at any time, and Company retains the right to resign at any time, subject in either case to Company’s right to full payment for all charges incurred through the date of termination or resignation. In the event that Company determines to resign, and Client seeks damages allegedly resulting from such resignation, Company’s maximum liability to Client in the event Company is held liable because of such resignation shall be limited to the fees actually paid to Company up to the date of resignation.
Except to the extent determined to have resulted from the Company’s gross negligence or willful misconduct, the Company’s maximum liability for damages incurred by Client for any reason relating to the Services under this Agreement shall be limited to the fees paid to Company for the Services in connection with the Company’s work products giving rise to liability. 3
Approval of Project Agreement for Tourism Activation with Revolution Mar... Page 205 of 225 In no event shall Company or its personnel be liable to Client or Client’s personnel for any consequential, incidental, indirect, punitive or special damages in connection with claims arising out of or related to this Agreement or the Services, including any amount for loss of profit, data or goodwill, whether or not the likelihood of such loss or damage was contemplated.
Except to the extent determined to have resulted from the Company’s gross negligence or willful misconduct, Client agrees to reimburse and hold harmless Company for any time expended, expenses (including reasonable legal fees and costs), costs and/or losses incurred in connection with any lawsuit or other legal or regulatory action or proceeding involving or relating to the Services under this Agreement, whether or not such costs and/or losses are due to the negligence of Company. It is further agreed that, in the event that Company receives any subpoena or other legal process in an action or proceeding in which Company is not a party, Client shall reimburse Company for all cost and expenses (including reasonable legal fees and costs) associated with providing testimony, documents or information relating to the Services under this Agreement, including any time expended, at Company’s then standard rates.
Client and Company to the extent permitted by law, each knowingly, voluntarily and intentionally waive the right to a trial by jury in any action arising out of or relating to this Agreement or the services to be performed by Company pursuant hereto.
This waiver applies to any action or legal proceeding whether sounding in contract, tort, negligence, or otherwise. This Agreement and the rights and obligations of the undersigned parties shall be governed by and construed in accordance with the laws of the State of New York without giving effect to principles of con flict of laws. The undersigned hereby irrevocably
consent, and submit, to the personal jurisdiction, subject matter jurisdiction, and venue of any New York State or Federal Court located in the State of New York, County of New York over any action or proceeding arising out of any dispute between the undersigned, with respect to this Agreement.
Representations, Warranties and Covenants.
Each party represents, warrants and covenants to the other that (i) this Agreement is its valid and binding obligation enforceable in accordance with its terms; (ii) it has the unencumbered right to enter into this Agreement and ful fill its
obligations hereunder; (iii) it is not and will not become a party to any agreement in con flict with said obligations; (iv) it will perform its obligations in material compliance with all applicable state, federal and local laws and regulations and industry standards and practices; and (v) the materials produced or furnished by it or on its behalf will not infringe any third party rights. Company further covenants that any subcontract hereunder shall not release Company from its responsibility or obligations under this Agreement and Company shall remain fully responsible for obligations performed by its subcontractors and vendors to the same extent as if such obligations were performed by Company.
Force Majeure
No damages shall be due for a failure of performance by either party occurring due to Acts of God, war, government regulation, terrorist act, riots, disaster, or strikes, any one of which make performance impossible.
Miscellaneous
This Agreement and any documents incorporated by reference herein constitutes the entire agreement and understanding between the parties regarding the subject matter hereof, and supersedes and merges all prior discussions and agreements between them relating thereto. No modi
fication or amendment to this Agreement or any Project Agreement shall be valid unless in writing, signed by the party against whom enforcement is sought. No usage of trade or course of dealing between or among any persons having any interest in this Agreement will be deemed effective to modify, amend, or discharge any part of this Agreement, or any rights or obligations of any party hereunder. The attached Fee Schedule is annexed as Schedule A and the program budget is annexed in Schedule B. All documents are incorporated herein by this reference as part of this Agreement.
Severability. Any portion of this Agreement that a court of competent jurisdiction shall determine to be void or unenforceable for being against public policy, or for any other reason, shall be deemed to be severable from this Agreement and shall have no effect on the other covenants or provisions in this Agreement. Such court shall hereby be empowered to reform and construe any provision which would otherwise be void or unenforceable in a manner that will be valid and enforceable to the maximum extent permitted by law.
Waiver. The failure or delay of either party to insist upon the other party's strict performance of the provisions in this Agreement or to exercise in any respect any right, power, privilege, or remedy provided for, under this Agreement shall not operate as a waiver or relinquishment thereof, nor shall any single or partial exercise of any right, power privilege, or remedy preclude other or further exercise thereof, or the exercise of any other right, power, privilege, or remedy; provided, however, that the obligations and duties of either party with respect to the performance of any term or condition in this Agreement 4
Approval of Project Agreement for Tourism Activation with Revolution Mar... Page 206 of 225 shall continue in full force and effect. No express waiver shall be valid unless in a prior writing and signed by the party to be bound thereby.
Successors/Assigns.
The rights and obligations of the parties to this Agreement shall inure to the bene fit of and bind the successors, assigns and legal representatives of the respective parties; provided, however, that this Agreement may not be assigned by either party without the prior written consent of the other party, and any purported assignment without consent shall be null and void.
Notwithstanding the foregoing, Client may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Company if such assignment is made to any of Client’s af filiated companies or in the event of a
merger, acquisition, consolidation, or sale of all or substantially all of Client’s stock or assets.
Counterparts
This Agreement may be executed in any number of counterparts and by the parties in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement. T elefacsimile or “pdf” transmissions of any executed original document and/or retransmission of any executed telefacsimile or “pdf” transmission shall be deemed to be the same as the delivery of an executed original. [SIGNATURE PAGE FOLLOWS]
5
Approval of Project Agreement for Tourism Activation with Revolution Mar... Page 207 of 225 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date.
CITY OF INDIO REVOLUTION MARKETING, LLC
By: By:
Name: Jodi Thompson
Title: Title: President
Date: Date:
Address: _____________________
______________________________
6
Approval of Project Agreement for Tourism Activation with Revolution Mar... Page 208 of 225
FEE SCHEDULE A
DATED: 3/5/24
BETWEEN REVOLUTION MARKETING, LLC (“COMPANY”), and
CITY OF INDIO (“Client”)
T otal Approved Budget: $150,000.00
Payment Schedule:
- 60% ($90000.00) USD is due upon receipt via Wire Transfer or Check - 40% ($60,000.00) USD is due 4/22/24 via Wire Transfer or Check * Any “Post Approved Budget” incremental requests prior to arriving to site will be billed separately after each event and are due 14 days from receipt.
* Any “On-Site” incremental requests will be billed separately after the completion of each event and are due 14 days from receipt.
The parties agree that if the Client Event is cancelled after this Project Agreement is signed, the above schedule shall become inapplicable and, in lieu thereof, Client shall reimburse Company its “Activation Costs” including, but not limited to, out-of-pocket expenditures, any and all amounts as set forth in this Agreement. If the Client Event is cancelled after the Project Agreement Is signed by reason of disability as further de fined therein, and any amounts committed which cannot be cancelled, all subject to a detailed explanation and supporting documentation and the Agency/Production Fee and Program Administration Account T eam Fee shall be paid to Company.
Notwithstanding the above, it is acknowledged and agreed that certain line items are estimated, in good faith, reasonably believed to be accurate but the accuracy of such costs are dependent on Company’s or other third parties ability to deliver or secure certain favorable rates, privileges or bene
fits. In the event that a line budget overrun is caused by a factor out of the reasonable control of Company, Client shall not unreasonably withhold its consent to approve such budget overrun and to pay such additional amounts as necessary to cover such budget overrun to Company; provided that proper documentation is provided. Great effort has been taken to accommodate Client budget showcasing line by line itemization. It is understood and agreed that Company invoices will be billed in USD and payments must strictly follow the above payment schedule.
In addition, if Client wishes to change the scope of the Project, a written communication needs to be approved and signed by both parties. This communication can be documented as an additional Schedule to the Project Agreement with supplemental costs and fees. Due to the nature of live event production, in the event that requests are made verbally and need to be implemented in ‘Time is of the Essence, ’ written communication will con firm as soon as possible post implementation, but all
such requests will be paid for by Client.
Any elements wished to be stored in/disposed of post event at Company warehouse facility will be assessed and billed separately based on space used, shipping and activity of elements. 7
Approval of Project Agreement for Tourism Activation with Revolution Mar... Page 209 of 225 City of Indio
City Council
April 3, 2024
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Carl S. Morgan, Dir. Of Economic Development Subject: Operating Covenant Agreement between the City of Indio and Unicars, Inc., a California corporation for the operation of a new automobile dealership.
RECOMMENDATION:
Approve an Operating Covenant Agreement between the City of Indio and Unicars, Inc., a California corporation, for the operation of a new automobile dealership, and authorize the City Manager to execute the agreement, direct the Finance Department to adjust the budget as reflected in the report and all related documents.
SUMMARY:
Unicars, Inc., a California corporation, has purchased a property in the City of Indio at 79300 Varner Road, Indio, California. This property is intended to be used to sell certified Honda pre-owned vehicles. Unicars has constructed a new 14,950-square-foot dealership building, a 5,089-square- foot carwash and detailing shop, and 826 surface parking spaces for customers and employees.
This new dealership, Unicars Honda, will be the second dealership from Unicars, Inc. The Operating Covenant Agreement (Attachment 1) has a 15-year term, or until the City makes payments, totaling three million five hundred thousand dollars ($3,500,000.00). Environmental Determination: The California Environmental Quality Act (CEQA) only applies to projects which have the potential to cause a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. (CEQA Guidelines §15061(b)(3)).
BACKGROUND INFORMATION:
In 2020, the City received a letter of interest from Unicars, Inc. regarding their intent to open an additional dealership at the eastern end of the auto mall. The dealership will be located at 79300 Varner Road. The business shall join the I-10 Auto Dealers Association ("Association") before its opening or as soon thereafter as permitted to join the Association. It shall remain a member thereof for so long as the dealership is operated on the property or as long as the Association exists.
The proposed Operating Covenant Agreement by the City will be for 15 years of continuous operation of the dealership. The obligations thereunder will not go into effect unless the dealership begins operation. The dealership's operation will (i) promote the long-term employment of residents of the City (approximately 50 new jobs) and significantly contribute to the maintenance, growth, and expansion of the economic base of the City; (ii) constitute a valid exercise of the police powers of the City and serves a public purpose in which the City has peculiar and unique interests; (iii) will promote the generation of sales tax revenue payable to City (estimated to be $370,000-$725,000 AGENDA ITEM #10.1
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 210 of 225 annually); (iv) will increase the traffic to the existing I-10 Auto Mall dealerships; and (v) otherwise substantially relates to the municipal affairs of the City.
Although the obligations do not commence unless the dealership begins operation, the City has nevertheless complied with Government Code 53083, which requires a noticed public hearing and the preparation of an economic subsidy report before the City's approval (Attachment 2). The attached report must remain available and be posted on the City's website for the entire term of the economic development subsidy. The report includes the following:
(1) The name and address of all corporations or any other business entities, except for sole proprietorships, that are the beneficiary of the economic development subsidy;
(2) The start and end dates and schedule for the economic subsidy;
(3) A description of the economic development subsidy, including the estimated total amount of the expenditure of public funds by, or of revenue lost to, the City as a result of the economic development subsidy;
(4) A statement of the public purposes for the economic development subsidy;
(5) The projected tax revenue to the City as a result of the economic development subsidy; and
(6) The estimated number of jobs created by the economic development subsidy, broken down by full-time, part-time, and temporary positions.
FINANCIAL SUMMARY:
Current FY Financial
Impact:
$46,250-$90,625 In current year budget: No
Current FY General
Fund Impact:
$46,250-$90,625 Budget adjustment: Yes
Next FY Financial
Impact:
$185,000-$362,500 Strategic Objective: Business & Job Growth Source of funds: Sales Tax Fund-Org-Object
Reference:
101-401205
Additional Financial Details:
This Agreement is performance-based, whereas the City will pay the business quarterly during the business operations of Unicars, Inc. dealership, an amount equal to 50% of the revenue the City receives from taxable used-car sales for that quarter. A local Honda Used Car Superstore is expected to generate $370,000-$725,000 in local Bradley-Burns (1%) sales tax revenue annually for the City. An annual 50% business share is estimated to total $185,000-$362,500 for 15 years or when $3.5 million is reached. This Agreement is a multi-year agreement that begins when the dealership opens. The anticipated dealership opening date is April 2024. While the new dealership will be required to collect the City's 1% transaction and use tax, locally known as the Measure X tax revenue, the tax-sharing agreement does not extend to that tax source.
ATTACHMENTS:
Attachment 1 - Unicars Operating Covenant
Attachment 2 - PHN Unicars Operating Covenant Agreement
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 211 of 225
APPROVAL(S):
Carl S. Morgan, Dir. Of Economic Development Approved - 21 Mar 2024 Steven Graham, City Attorney Approved - 25 Mar 2024
Alan Garcia, Accountant Approved - 25 Mar 2024
Bryan H. Montgomery, City Manager Approved - 25 Mar 2024
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 212 of 225 4824-1631-4184 -1-
4845-7618-1199.1
SALES TAX SHARING
AND OPERATING COVENANT AGREEMENT
This SALES TAX SHARING AND OPERATING COVENANT AGREEMENT (the “Agreement”) is made and entered into as of , 2024 ("Effective Date"), by and between the CITY of INDIO, a municipal corporation (the “City”), and Unicars Inc., a California corporation (together with its successors, assigns and all successors in interest to the Property, as hereinafter defined, collectively, and jointly, and severally, the “Business”).
R E C I T A L S:
A. Business has purchased real property within the City of Indio, California located at 79300 Varner Road Indio, California (“Property”) and desires to establish a new automobile dealership, including sales and service departments (collectively, the “Honda Dealership”).
B. The City desires to purchase a 15 year continuous operation covenant from Business by providing limited, contingent (conditional) assistance to Business on the terms and subject to the conditions hereinafter set forth.
C. The City has found that the use and operation of the Property and Qualified Business (as defined in Section 1a below) proposed by Business: (i) promotes the long-term employment of residents of the City and will significantly contribute to the maintenance, growth, and expansion of the economic base of the City; (ii) constitutes a valid exercise of the police powers of the City and serves public purposes in which the City has peculiar and unique interests; (iii) will promote the generation of sales tax revenue payable to City; (iv) will increase the traffic to the existing I-10 Auto Mall dealerships; and (iv) otherwise substantially relates to the municipal affairs of the City.
D. The purpose and intention of the City in bargaining for and agreeing to pay the consideration for the covenants is solely to induce Business to operate, or cause to be operated, a new (not relocated) auto dealership on the Property so as to further the well-being of the citizens at large, enhance local employment, and expand the City’s tax revenue base.
C O V E N A N T S:
Based upon the foregoing Recitals and for good and valuable consideration, the sufficiency of which is acknowledged by both parties, the City and Business hereby agree as follows:
1. Certain Defined Terms. As used in this Agreement, the following terms shall have the meanings hereinafter set forth:
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 213 of 225 -2-
a. Qualified Business. “Qualified Business” shall mean the opening and operation on the Property by Business of a new point (not relocated) Honda auto dealership.
b. Quarter. “Quarter” shall mean a three (3) month period ending March 31, June 30, September 30 or December 31.
c. Sales Tax. “Sales Tax” means, for each Quarter during the term of the City’s payment obligations hereunder, that portion of taxes received by the City from the imposition of the Bradley-Burns Uniform Local Sales and Use Tax Law (commencing with Section 7200 of the California Revenue & Taxation Code) from the operation of the Qualified Business on the Property and retained by City, prorated in the first and last Quarters during the term of this Agreement based upon the number of days in such partial Quarters. For purposes of this Agreement, the term “Sales Tax” shall not include; (i) any portion of such taxes received by the City from the Property or operation of the Qualified Business that the City may be required to pay, transfer, assign, or allocate to any other entity or entities by virtue of any law now or hereafter existing, or by virtue of any agreement entered into between City and any other governmental entity under California Government Code Section 53804; (ii) the State Board of Equalization’s administrative processing fee attributable to the City’s portion of such taxes (calculated at the same percentage of such taxes as applies city-wide); (iii) the sum of one thousand dollars ($1,000.00) per Quarter (representing a stipulated payment for the City’s estimated Quarterly direct and indirect costs of administering this Agreement); and (iv) any such taxes the payment, rebate or diversion of which by the City would violate Government Code Section 53084 or 53084.5, as amended or restated from time to time. In addition, “Sales Tax” shall not be considered to have been received by the City until the City is able to confirm receipt of such taxes from the State Board of Equalization. If California state law changes during the term of this Agreement so as to alter the method by which sales tax revenues are allocated among jurisdictions, then the parties shall negotiate in good faith, modifications to this Agreement to carry out its intended economic costs and benefits to each party.
2. Insurance. Business shall deliver to City reasonable evidence (such as certificate of insurance, copy of policy, and/or copy of endorsements) that Business has obtained and maintains for the Qualified Business and Property, both reasonable liability insurance and an additional insured endorsement naming City as additional insured for the liability insurance.
3. Contingent Payments by City. In consideration of, and contingent upon, Business’s compliance with Section 6 below, from and after the date of the opening of the Qualified Business on the Property (the “Opening”), the City shall make quarterly payments to Business in an amount equal to fifty percent (50%) of the Sales Tax generated by the Qualified Business after the Qualified Business opens to the public and which is actually received by the
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 214 of 225 -3-
City and allocable to each such quarter or portion thereof, until the payments made by City under this Section total Three Million Five Hundred Thousand Dollars ($3,500,000.00.).
4. Term. This Agreement shall commence upon execution by the City and Business and, unless sooner terminated pursuant to Section 8 herein, shall expire upon the later of (i) the completion of the payments under Section 3 above, or (ii) the date that is fifteen (15) years after the Opening.
5. Payment Procedures.
a. Within thirty (30) days after the end of each calendar quarter, after the Opening, Business shall submit to the City’s Finance Director, in writing, a payment request for Business’s share of Sales Tax paid during the previous quarter. The request shall include copies of all reports which have been submitted by Business to the State Board of Equalization for such year, together with evidence available to Business regarding the sales taxes actually paid to the State Board of Equalization by or on behalf of the Qualified Business for such quarter (e.g., cancelled checks). b. Following submission by Business of its completed payment request, the City’s Director of Finance (or designee) shall determine whether the payment request is complete and accurate, and if the determination of the Director (or designee) is that the request is complete and accurate, the Director (or designee) shall approve or disapprove (subject to the provisions below) such request. If the payment request contains the reports submitted by Business to the State Board of Equalization for the applicable quarter and cancelled checks evidencing payment of sales tax to the State Board of Equalization for the applicable quarter, and if all reports required from Business by the State Board of Equalization relating to sales tax for that quarter shall have been submitted to the State Board of Equalization (with a concurrent copy delivered to the City), then the payment request shall be deemed approved (unless there is an error in the payment request). Any disapproval shall state in writing the reasons for disapproval and the changes or additional information or documentation which the City deems necessary to comply with Business’s request. In the event of a disapproval by the City, Business shall revise or supplement the request, and shall resubmit same to the City’s Director of Finance as soon as is possible after receipt of the notice of disapproval. Thereafter, the City, through its Director of Finance, shall promptly review, confirm, and if determined to be complete and accurate, shall approve the amount of the Sales Tax, if any, due to be paid to Business for the applicable quarter.
The review of the request for completeness of documentation and information shall be completed by the City within fifteen (15) business days following the receipt of the request. The review of the request for determination of accuracy may be based upon corroborating information provided to the City by either the State Board of Equalization and/or any sales tax consultant retained by the City.
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 215 of 225 -4-
c. Nothing contained in this Agreement shall obligate or otherwise commit the City to pay the portion of the Sales Tax determined by the City to be due and payable to Business unless and until the City receives verification satisfactory to the City that it has received the Sales Tax attributable to sales from the Qualified Business for the quarter for which a request has been made and approved by the City.
d. Payment of the amount determined by the City to be owing to Business under Section 3, for each quarter shall be made by the City within fifteen (15) days after the City has approved the payment request and has received verification satisfactory to it that it has received the Sales Tax attributable to sales from the Qualified Business for the quarter for which a request has been made and approved by the City.
6. Covenants and Representations of Business. During the Term of this Agreement, Business hereby covenants and agrees with the City as follows:
a. Upon the Opening, Business shall: (i) subject to Section 11(i) below, thereafter continuously operate the Qualified Business on the Property, or cause the Qualified Business to be continuously operated until the date that is fifteen (15) calendar years after the Opening; and (ii) at all times comply with all applicable laws.
b. Business shall maintain and repair or cause to be maintained and repaired the improvements on the Property in good order, and in the condition in accordance with all applicable laws. In this regard, Business shall use its best efforts to prevent the accumulation of any waste materials, rubbish, graffiti, weeds, or debris and shall not permit any unlawful use or public or private nuisance to occur on the Property.
c. In its operation of the Qualified Business and leasing of the Property, Business agrees not to violate applicable laws regarding discrimination against any person or class of persons by reason of gender, marital status, race, color, creed, mental or physical disability, religion, age, ancestry, or national origin or otherwise.
d. Business shall defend (with counsel reasonably acceptable to City), indemnify and hold City and its councilpersons, officers, agents and employees (collectively, the “Indemnified Parties”) harmless from and against all losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs), damages (including, without limitation, consequential damages), claims and liabilities arising from the City’s entering into this Agreement and from the operation of the Qualified Business, and any other activities of Business, its members, officers, employees, agents, contractors, invitees and any third parties on or about the Property. The obligations of Business under this Section 6d
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 216 of 225 -5-
shall survive the expiration or any earlier termination, as applicable, of this Agreement.
e. Business shall join the I-10 Auto Dealers Association (“Association”) prior to the Opening, or as soon thereafter as it is permitted to join the Association, and shall remain a member thereof for so long as the Qualified Business is operated on the Property or for so long as the Association exists.
f. At or prior to the Effective Date, Business has obtained a construction loan sufficient to fund the entire development of the Honda Dealership.
7. Representations and Warranties of the City. The City represents and warrants to Business that, as of the Effective Date:
a. City is a general law city duly organized and existing under the laws of the State of California.
b. The individuals executing this Agreement on behalf of the City are duly authorized by appropriate action of the City Council to execute this Agreement on behalf of the City and that upon execution, the Agreement shall be a binding obligation of the City.
c. To the City’s actual current knowledge, the City’s entry into this Agreement and the performance of the City’s obligations under this Agreement do not violate any law or contract or agreement to which the City is a party.
d. To the City’s actual current knowledge, there are no pending claims or lawsuits against the City that will delay or prevent the performance of the City’s obligations under this Agreement.
e. The representations and warranties of the City set forth in this Section 7 are material consideration to Business, and the City acknowledges that Business is relying upon the representations of the City set forth in this Section 7 in undertaking its obligations under this Agreement.
8. Defaults and Termination. Failure by City to make a payment to Business that is required to be made by City to Business under this Agreement shall constitute a default by City under this Agreement if it is not cured by City within fifteen (15) days after written notice by Business to City. Notwithstanding any other provision set forth in this Agreement to the contrary, this Agreement and any obligation of the City to make payments to Business hereunder shall terminate without further notice or demand, at the City’s option, upon the occurrence of the following events of default:
a. Failure in the due, prompt, and complete observance or performance of any covenant or obligation set forth in Section 6 of this Agreement for a period of thirty (30) days after written notice to Business from the City
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 217 of 225 -6-
Manager specifying the nature thereof; provided that, except for a failure to operate the Qualified Business (which shall be subject to Section 11(i) below), Business shall not be in default under this subparagraph if the failure to observe or perform the covenant or obligation in question is curable but is of such a nature that it is incapable of being cured with reasonable diligence within that thirty (30) day period and Business commences such cure within that thirty (30) day period and diligently and continuously pursues the same to completion.
9. Remedies. Upon a default by Business under Section 8a: (i) City may terminate City’s obligations under this Agreement by written notice to Business, (ii) upon written demand by City, Business shall repay to City, with interest at the maximum rate permitted by law from the date of payment by City, all payments made by City to Business hereunder, and (iii) City shall have any and all other remedies available to City at law and in equity. Upon a default by City, Business shall have all rights and remedies available to it at law and in equity.
Notwithstanding anything herein to the contrary, the City shall only be able to exercise its rights under Section 9(ii) of this Agreement in the event Business is in default under Section 6(a)(i), which rights shall be subject to Section 11(i) below. City further agrees that it shall have no right to seek repayment from Business under Section 9(ii) of this Agreement in the event the Business fails to continuously operate the Qualified Business due to the unavailability of automobiles for Business to sell due to a bankruptcy of Honda or any successor entity to Honda. Under no other circumstances will Business be required to repay the City any monies upon default as provided in this Section 9.
10. Payment of Prevailing Wages.
a. Business acknowledges that the City has made no representations, expressed or implied, to Business or any person associated with Business regarding whether or not laborer employed relative to the construction of the Honda Dealership must be paid the prevailing wage per diem wage rate for their labor classification, as determined by the State of California, pursuant to Labor Code Sections 1720, et seq. Business agrees with the City that Business shall assume the responsibility and be solely responsible for determining whether or not laborers employed relative to any construction pertaining to the Qualified Business must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to the Labor Code Sections 1720, et seq.
b. The parties hereto agree that the payments from the City to Business under Section 3 of this Agreement are being made solely for the reasons set forth in Recitals C and D. In the event there is a determination made by the Department of Industrial Relations that there is a violation of Labor Code Sections 1720 et seq., the parties hereto agree that Business shall have the right to immediately terminate this Agreement and return any monies received from the City under the terms of this Agreement.
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 218 of 225 -7-
11. General Provisions.
a. General Provisions. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes all prior agreements and understandings of the parties with respect to the subject matter hereof. This Agreement may not be modified, amended, supplemented, or otherwise changed, except by a writing executed by both parties hereto.
b. Waiver. No failure or delay by any party in the exercise of any right hereunder shall constitute a waiver thereof, nor shall any single or partial exercise of any such right preclude other or further exercise thereof, or any other right.
c. Captions. Section headings used in this Agreement are for convenience of reference only and shall not affect the construction of any provisions of this Agreement.
d. Assignment. Business shall not assign any of the rights under this Agreement without the prior written consent of City in its sole and absolute discretion.
e. Time. Time is of the essence in every provision hereof in which time is a factor. Except as may otherwise be provided, wherever this Agreement states a period of time and number of days, it shall be construed to mean calendar days; provided, however, that when any period of time so stated would end upon a Saturday, Sunday, or legal holiday, such period shall be construed to end upon the next day following which is not a Saturday, Sunday or legal holiday.
f. Counterparts. This Agreement may be executed in two or more counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument.
g. Governing Law. This Agreement shall be deemed to be a contract made under the laws of the State of California and for all purposes shall be governed by and construed in accordance with the laws of the State of California.
h. Authority. Each individual executing this Agreement on behalf of Business represents and warrants that he/she is duly authorized to execute and deliver this Agreement on behalf of Business.
i. Inability to Perform (Force Majeure). Except as may be otherwise provided herein, performance by any party hereunder shall not be deemed to be in default, and all performance and other dates specified in this
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 219 of 225 -8-
Agreement shall be extended, where the party seeking the extension has acted diligently and delays or defaults are due to events beyond the reasonable control of the party (financial inability excepted) such as but not limited to war; insurrection; acts of terrorism; riots; floods; earthquakes; fires; casualties; acts of nature; epidemics; pandemics; government shutdowns of businesses; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions; litigation that directly prevents performance by the Business or the City; weather; and other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform that are not excluded above (collectively, “Enforced Delays”); provided, however, that the party claiming the extension notify the other party in writing of the nature of the matter constituting the Enforced Delay within thirty (30) days after the party claiming the extension has notice of the occurrence of the Enforced Delay. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of time reasonable in light of the Enforced Delay and shall commence to run from the time of the commencement of the cause.
j. Notices. Any notice, communication, request, reply or advice (collectively, “Notice”) provided for or permitted by this Agreement to be made or accepted by either party must be in writing. Unless otherwise provided herein, Notice may be given or served (i) by depositing the same in the United States mail, postage paid, certified, and addressed to the party to be notified, with return receipt requested, (ii) by delivering the same to such party, or an agent of such party, in person or by commercial courier, (iii) by electronic mail prior to 5:00 P.M. Pacific Time on any business day (or such notice will be considered to have been received the next business day), or (iv) by depositing the same into custody of a nationally recognized overnight delivery service such as Federal Express or Overnight Express. Upon request, each party shall confirm receipt of any notice sent by electronic mail. Notice deposited in the United States mail in the manner hereinabove described shall be effective on the date of receipt (or rejection) as evidenced by the return receipt. Notice given in any other manner shall be effective only if and when received by the party on or before 5:00 p.m. Pacific Time of any business day with delivery made after such hours to be deemed received the following business day.
Notices shall be sent to:
To City:
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 220 of 225 -9-
City Clerk’s Office
100 Civic Center Mall
Indio, California 92201
Attn:
Email:
To Business:
Unicars Honda
78970 Varner Road
Indio, CA 92203
Attn: Andreas Mozoras
[email protected]
The parties hereto shall have the right from time to time to change their respective addresses, and each shall have the right to specify as its address any other address within the United States of America by at least three (3) days written notice to the other party.
k. Attorneys’ Fees and Costs. If a dispute arises under or in connection with this Agreement (including, without limitation, the enforcement or interpretation of this Agreement) that results in litigation, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs incurred in such litigation from the other party.
l. Alternative Dispute Resolution. If a dispute arises regarding the making, formation, interpretation, or performance of this Agreement, City and Business agree to adhere to the dispute resolution protocol as delineated and explained herein.
(i) NEGOTIATION: City and Business will make a good faith effort to resolve any claim or issues as to this Agreement, through negotiation. The parties shall meet at the offices of the City to negotiate within ten (10) days after any party sends a notice to the other referring to this Section. (ii) MEDIATION: If City and Business cannot resolve such a claim or issue as to this Agreement, through negotiation by the date that is fifteen (15) business days after the date of the notice described in clause (a) above, then that claim or issue shall be the subject of mediation, administered by a mediator.
(iii) LITIGATION: Should mediation fail to resolve such a claim or issue as to this Agreement, then City and/or Business may pursue an action at law or in equity, with respect to a claim or issue as to this Agreement, that has been subject to mediation.
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 221 of 225 -10-
m. Indemnity. Business shall indemnify, protect, defend and hold harmless the City and their respective officers, employees, contractors and agents, with counsel reasonably acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense and/or “increased costs” (including reasonable attorney’s fees, court and litigation costs, and fees of expert witnesses) which, in connection with the development, construction (as defined by applicable law) and/or operation of the auto dealership, results or arises in any way from any of the following: (1) the noncompliance by Business of any applicable local, state and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, if applicable, the requirement to pay state prevailing wages and to hire apprentices); (2) the implementation of Section 1781, et. seq., of the Labor Code, as the same may be amended from time to time, or any other similar law; and/or (3) failure by Business to provide any required disclosure or identification as required by Labor Code Section 1781 et. seq., as the same may be amended from time to time, or any other similar law. It is agreed by the parties that, in connection with the development and construction (as defined by applicable law) of the Honda Dealership, Business shall bear all risks of payment or non-payment of prevailing wages and hiring of apprentices under California law and/or the implementation of Labor Code Section 1781, et. seq., as the same may be amended from time to time, and/or any other similar law. “Increased costs,” as used in this Section, shall have the meaning ascribed to it in Labor Code Section 1781, et. seq., as the same may be amended from time to time. The foregoing indemnity shall survive termination of this Agreement.
-signatures on the following page-
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 222 of 225 -11-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written.
“BUSINESS”:
Unicars Inc.
a California corporation
By:
Print Name:
Title:
“CITY”:
CITY OF INDIO,
a municipal corporation
By:
Bryan Montgomery, City Manager
ATTEST:
City Clerk Administrator
APPROVED AS TO FORM:
By:
Steven Graham Pacifico
City Attorney
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 223 of 225
CALIFORNIA NEWSPAPER SERVICE BUREAU
CNS
D A I L Y J O U R N A L C O R P O R A T I O N
To the right is a copy of the notice you sent to us for publication in the THE DESERT SUN. Please read this notice carefully and call us with any corrections. The Proof of Publication will be filed with the County Clerk, if required, and mailed to you after the last date below. Publication date(s) for this notice is (are):
Daily Journal Corporation
Serving your legal advertising needs throughout California. Call your local Mailing Address : 915 E FIRST ST, LOS ANGELES, CA 90012 Telephone (213) 229-5300 / Fax (213) 229-5481
Visit us @ WWW.LEGALADSTORE.COM
VANESSA CASTILLO
CITY OF INDIO/CITY CLERK
100 CIVIC CENTER MALL
INDIO, CA 92201
HRG NOTICE OF HEARING
Unicars Covenant Agreement PHN (CCM 4.3.2024)
03/22/2024
BUSINESS JOURNAL, RIVERSIDE (951) 784-0111
DAILY COMMERCE, LOS ANGELES (213) 229-5300
LOS ANGELES DAILY JOURNAL, LOS ANGELES (213) 229-5300
ORANGE COUNTY REPORTER, SANTA ANA (714) 543-2027
SAN FRANCISCO DAILY JOURNAL, SAN FRANCISCO (800) 640-4829 SAN JOSE POST-RECORD, SAN JOSE (408) 287-4866
THE DAILY RECORDER, SACRAMENTO (916) 444-2355
THE DAILY TRANSCRIPT, SAN DIEGO (619) 232-3486
THE INTER-CITY EXPRESS, OAKLAND (510) 272-4747
Notice Type:
Ad Description:
COPY OF NOTICE
3795563
!A000006717695!
An invoice will be sent after the last date of publication. If you prepaid this order in full, you will not receive an invoice.
CITY OF INDIO
NOTICE OF CITY COUNCIL
PUBLIC HEARING AND
REPORT PURSUANT TO
GOVERNMENT CODE
SECTION 53083
ECONOMIC DEVELOPMENT
SUBSITY TO BE GIVEN
UNDER AN OPERATING
COVENANT BETWEEN THE
CITY OF INDIO AND UNICARS,
INC. (UNICARS HONDA
SUPERSTORE DEALERSHIP)
In accordance with California
Government Code Section
53083, NOTICE IS HEREBY
GIVEN that the City Council of
the City of Indio, will hold a
public hearing on Wednesday,
April 3, 2024 beginning at 5:00
p.m. or as soon thereafter as it is
heard, to consider the approval
of an economic development
subsidy in the form of an
Operating Covenant Agreement
between the City of Indio and
Unicars, Inc. a California
corporation (“Agreement”). The
public hearing will be held in the
City Council Chambers at 150
Civic Cen ter Mall, Indio, CA
92201. Additionally, members of
the public may participate via
Zoom teleconference using the
information below.
The Operating Covenant
Agreement is available for
review at City Hall, 100 Civic
Center Mall, Indio, California
92201 or req uest that a copy
be emailed to you.
Alternatively, the agreement is
available on the City's website
at
https://www.indio.org/departm
ents/finance/economic -
development -subsidies.
Pursuant to Government Code
Section 53083, the City Council
of the City of In dio must hold a
noticed public hearing (as part of
regularly scheduled council
meeting) and, prior to the public
hearing, provide all of the
following information in written
form and available to the public
and through the City's website,
regarding a propo sed economic
development subsidy to be
provided by the City pursuant to
the Agreement. This information
is set forth below under “Report”.
City Council meetings may be
viewed via Livestream,
Facebook Live, You Tube, or
Zoom.
Zoom webinar information to
vie w and participate is as
follows:
Zoom Link:
https://us02web.zoom.us/j/87683
481995?pwd=azFqM2t6OGRaR
0VtTXhUaFVRL082UT09
Webinar ID: 876 8348 1995
Passcode: 92201
Interested persons wishing to
express their views on the
hearing item(s) referenced above
may p articipate by providing oral
or written comments as follows:
Written Comments : Written
comments may be emailed to the
City Clerk at [email protected].
Comments will be distributed to
the City Council and posted on
the agenda portal. Written
comments will not be read during
public comment.
Oral Comments : Oral testimony
can be provided in person or
during the virtual live session.
Please use the “raise your hand”
function on zoom in order to be
recognized by the City Clerk.
Accessibility Accommodation :
If you are an individual with a
disability and need a reasonable
modification or accommodation
pursuant to the Americans with
Disabilities Act, please contact
the City Clerk at
[email protected] 24 hours in
advance of the hearing for
assistance.
Report
The purpose of the following
report is to provide the
information required pursuant to
Government Code Section
53083. This report shall remain
available to the public and
posted on the City's website until
the end date of the economic
development subsidy (desc ribed
in Item 2 below).
1.The name and address of all
corporations or any other
business entities, except for sole
proprietorships, that are the
beneficiary of the economic
development subsidy.
The Agreement is with Unicars,
Inc. a California corporation,
Attention: Andreas Mozoras via
Email: [email protected]
2.The start and end dates and
schedule, if applicable, for the
economic development subsidy.
If the agreement is approved by
the City Council, the obligations
under the agreement are
contingent on the d ealership
being development as well as
commencement of its operation.
Therefore, the start date is
contingent upon the opening of
the new Unicars Honda
Superstore Dealership.
Accordingly, from and after the
date of the opening of the
dealership should the dealership
be developed at the developer's
sole expense (the “Opening”),
the City shall make quarterly
payments to business in an
amount equal to fifty percent
(50%) of the Sales Tax
generated by the business after
the business opens to the public
and whic h is actually received by
the City and allocable to each
such quarter or portion thereof,
until the payments made by City
under this section total Three
Million Five Hundred Thousand
Dollars ($3,500,000.00.).
3.A description of the economic
development sub sidy, including
the estimated total amount of the
expenditure of public funds by, or
of revenue lost to, the local
agency as a result of the
economic development subsidy.
An amount equal to fifty percent
(50%) of the project Sales Tax
generated by Qualifie d Business
up to $3.5 million.
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 224 of 225
4.A statement of the public
purposes for the economic
development subsidy.
If the dealership is developed
and subsequently opens, the
purpose is to purchase an
operating covenant for the
continued operation of the
dealership in the City. The City
finds that the operation of such a
Qualified Business (as defined in
the agreement) proposed by
Unicars, Inc.: (i) promotes the
long -term employment of
residents of the City and will
significantly contribute to the
maintenance, growth , and
expansion of the economic base
of the City; (ii) constitutes a valid
exercise of the police powers of
the City and serves public
purposes in which the City has
peculiar and unique interests; (iii)
will promote the generation of
sales tax revenue paya ble to
City; (iv) will increase the traffic
to the existing I -10 Auto Mall
dealerships; and (iv) otherwise
substantially relates to the
municipal affairs of the City.
5.The estimated number of jobs
created by the economic
development subsidy.
The new deale rship is expected
to create 50 new jobs.
Environmental Determination:
The California Environmental
Quality Act (CEQA) only applies
to projects which have the
potential to cause a significant
effect on the environment.
Where it can be seen with
certainty th at there is no
possibility that the activity in
question may have a significant
effect on the environment, the
activity is not subject to CEQA.
(CEQA Guidelines
§15061(b)(3)).
Publication Date: March 22,
2024
/s/
Sabdi Sanchez, CMC
City Clerk Administrator
3/22/24
CNS -3795563#
THE DESERT SUN
Operating Covenant Agreement between the City of Indio and Unicars, Inc.... Page 225 of 225