Professional Services Agreement with TY Lin International to prepare a P... Page 799 of 1094 Note: Mark-ups are Not Allowed
Consultant
Project No. Contract No. Date 7/28/2025
DIRECT LABOR
Hours
10 40
91 12
44 40
Project controller 5
LABOR COSTS
a) Subtotal Direct Labor Costs
b) Anticipated Salary Increases (see Anticipated Salary Increases page for calculations) c) Total Direct Labor Costs [(a) + (b)] 14,673.66$ 2.31132028 INDIRECT COSTS 2.31132028
d) Fringe Benefits ( Rate: 38.20% ) e) Total Fringe Benefits [(c) x (d)] 5,605.34$ f) Overhead ( Rate: 65.06% ) 9,546.68$
h) General and Administrative ( Rate: ) i) Gen & Admin [(c) x (h)] -$ j) Total Indirect Costs [(e) + (g) + (i)] 15,152.02$
FIXED FEE
k) TOTAL FIXED FEE [(c) + (j)]* fixed fee 10% ] 2,982.57$ Quantity Unit
Actual
Actual
0 1
l) TOTAL OTHER DIRECT COSTS -$
Subconsultant 1: $
Subconsultant 2: $
Subconsultant 3: $
Subconsultant 4: $
-$
-$
32,808.24$
1. Calculate average hourly rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) Direct Labor
Subtotal per
Cost Proposal
Total Hours per
Cost Proposal
Avg Hourly
Rate
$ 14,194.59 / 242 = $58.66 Year 1 Avg Hourly Rate
2. Calculate hourly rate for all periods (Increase the Average hourly rate for a period by proposed escalation %) Avg Hourly
Rate
Proposed
Escalation
Year 1 $58.66 + 4.5% = $61.29
Year 2 $61.29 + 4.5% = $64.05
Year 3 $64.05 + 4.5% = $66.94 Year 4 Avg Hourly Rate
Year 4 $66.94 + 4.5% = $69.95 Year 5 Avg Hourly Rate
3. Calculate estimated hours per year (Multiply estimate % each period by total hours) Estimated %
Completed
Each Period
Total Hours per
Cost Proposal
Total Hours per
Period
Year 1 25.00% * 242 = 60.5 Estimated Hours Year 1
Year 2 75.00% * 242 = 181.5 Estimated Hours Year 2
Year 3 0.00% * 242 = 0 Estimated Hours Year 3
Year 2 Avg Hourly Rate
Year 3 Avg Hourly Rate
(n) TOTAL OTHER DIRECT COSTS INCLUDING SUBCONSULTANTS [(l) + (m)] TOTAL COST [(c) + (j) + (k) + (n)]
COST PROPOSAL 1
COST-PLUS-FIXED FEE OR LUMP SUM OR FIRM FIXED PRICE CONTRACTS (CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
5 Year
Contract Duration
m) SUBCONSULTANTS' COSTS (Add additional pages if necessary) (m) TOTAL SUBCONSULTANS' COSTS
-$
$0.00 -$
Mileage Federal Rate
Postage $0.00
14,194.59$
479.07$
g) Overhead [(c) x (f)
l) CONSULTANT'S OTHER DIRECT COSTS (ODC) - ITEMIZE (Add additional pages if necessary) Description of Item Unit Cost Total
-$
Sr Analyst 2 $63.65 2,800.60$
Analyst $42.26 1,690.40$
$45.91
-$
229.55$
Senior Analyst 1 $67.98 815.76$
Utility coordination Manager $74.52 2,980.80$
-$
COST PROPOSAL 1
COST-PLUS-FIXED FEE OR LUMP SUM OR FIRM FIXED PRICE CONTRACTS (DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
Monument ROW
Utility Coordinator $52.88 4,812.08$
Sr Project Manager $86.54 865.40$
Jackson St Bridge
Classification/Title Name Actual Hourly Rate Total
Prime Consultant
Subconsultant
2nd Tier Subconsultant
Professional Services Agreement with TY Lin International to prepare a P... Page 800 of 1094 Year 4 0.00% * 242 = 0 Estimated Hours Year 4
Year 5 0.00% * 242 = 0 Estimated Hours Year 5
Total 100% Total = 242
4. Calculate Total Costs including Escalation (Multiply average hourly rate by the number of hours) Avg Hourly
Rate
Estimated
Hours
(calculated above) (calculated above)
Year 1 $58.66 * 60.5 = $3,548.65 Estimated Hours Year 1 Year 2 $61.29 * 181.5 = $11,125.01 Estimated Hours Year 2 Year 3 $64.05 * 0 = $0.00 Estimated Hours Year 3
Year 4 $66.94 * 0 = $0.00 Estimated Hours Year 4
Year 5 $69.95 * 0 = $0.00 Estimated Hours Year 5
= $14,673.66
= $14,194.59
= $479.07 Transfer to Page 1
Name: Title*:
Signature: Date of Certification (mm/dd/yyyy): 7/28/2025 Email: Phone Number:
Address:
List services the consultant is providing under the proposed contract:
Total Direct Labor Cost with Escalation
Direct Labor Subtotal before escalation
Estimated total of Direct Labor Salary Increase
COST PROPOSAL 1
Certification of Direct Costs:
I, the undersigned, certify to the best of my knowledge and belief that all direct costs identified on the cost proposal(s) in this contract are actual, reasonable, and allocable to the contract in accordance with the contract terms and the following requirements:
Cost
Per Period
Real Estate and Right of Way Services, Utility Coordination All costs must be applied consistently and fairly to all contracts. All documentation of compliance must be retained in the project files and be in compliance with applicable federal and state requirements. Costs that are noncompliant with the federal and state requirements are not eligible for reimbursement.
Local governments are responsible for applying only cognizant agency approved or Caltrans accepted Indirect Cost Rate(s).
Prime Consultant or Subconsultant Certifying:
Joey Mendoza Vice President
1. Generally Accepted Accounting Principles (GAAP)
2. Terms and conditions of the contract
3. Title 23 United States Code Section 112 - Letting of Contracts
4. 48 Code of Federal Regulations Part 31 - Contract Cost Principles and Procedures
5. 23 Code of Federal Regulations Part 172 - Procurement, Management, and Administration of Engineering and Design Related Service6. 48 Code of Federal Regulations Part 9904 - Cost Accounting Standards Board (when applicable) [email protected] 949.378.0687
200 Spectrum Center, Suite 300, Irvine CA 92618
*An individual executive or financial officer of the consultant’s or subconsultant’s organization at a level no lower than a Vice President or a Chief Financial Officer, or equivalent, who has authority to represent the financial information utilized to establish the cost proposal for the contract.
Professional Services Agreement with TY Lin International to prepare a P... Page 801 of 1094 Local Assistance Procedures Manual Exhibit 10-H
Cost Proposal
Note: Mark-ups are Not Allowed
Consultant Contract No. Date 8/1/2025
DIRECT LABOR
hours Actual Hourly Rate Total
50 $144.35 $7,217.50
LABOR COSTS
a) Subtotal Direct Labor Costs $7,217.50
b) Anticipated Salary Increases (see page 2 for sample) $243.59 c) TOTAL DIRECT LABOR COSTS [(a) + (b)] $7,461.09
FRINGE BENEFITS
d) Fringe Benefits (Rate: ) e) Total Fringe Benefits [(c) x (d)] $0.00
INDIRECT COSTS
f) Overhead - Safe Harbor (Rate: 110.00% ) g) Overhead [(c) x (f)] $8,207.20 h) General and Administrative (Rate: ) i) Gen & Admin [(c) x (h)] $0.00 j) Total Indirect Costs [(e) + (g) + (i)] $8,207.20
FEE (Profit)
q) (Rate: 10.00% ) k) TOTAL FIXED PROFIT [(c) + (j)] x (q)] $1,566.83
OTHER DIRECT COSTS (ODC)
Description Unit(s) Unit Cost Total
l) Travel/Mileage Costs (supported by consultant
actual costs) 1 $360.00 $360.00
m) Equipment Rental and Supplies (itemize) 0 $0.00 $0.00 n) Permit Fees (itemize), Plan sheets (each), Test
Holes (each), etc. 0 $0.00 $0.00
o) Subconsultant Costs (attach detailed cost proposal
in same format as prime consultant estimate for
each subconsultant) 0 $0.00 $0.00
p) Total Other Direct Costs [(l) + (m) + (n) + (o)] $360.00 TOTAL COST [(c) + (j) + (k) + (p)] $17,595.12
NOTES:
• Employees subject to prevailing wage requirements to be marked with an *. • ODC items should be based on actual costs and supported by historical data and other documentation. • ODC items that would be considered “tools of the trade” are not reimbursable. • ODC items should be consistently billed directly to all clients, not just when client will pay for them as a direct cost. • ODC items when incurred for the same purpose, in like circumstances, should not be included in any indirect cost pool or in overhead rate.
(Jr. Highway Engr)
(Project Manager) Daniel Moreno
(Sr. Civil Engineer)
(Envir. Scientist)
EXHIBIT 10-H COST PROPOSAL (EXAMPLE #1) PAGE 1 OF 2
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
OTS
Classification/Title Name
LPP 15-01 January 14, 2015
Professional Services Agreement with TY Lin International to prepare a P... Page 802 of 1094 Local Assistance Procedures Manual Exhibit 10-H
Consultant Contract No. Date 45870
1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) 45870 Avg Hourly 5 Year Contract
Rate Duration
$7,217.50 = $144.35 Year 1 Avg Hourly Rate
Avg Hourly Rate
Year 1 $144.35 + = $150.85 Year 2 Avg Hourly Rate
Year 2 $150.85 + = $157.63 Year 3 Avg Hourly Rate
Year 3 $157.63 + = $164.73 Year 4 Avg Hourly Rate
Year 4 $164.73 + = $172.14 Year 5 Avg Hourly Rate
Total Hours
per Year
Year 1 25.00% * = 12.5 Estimated Hours Year 1
Year 2 75.00% * = 37.5 Estimated Hours Year 2
Year 3 0.00% * = 0.0 Estimated Hours Year 3
Year 4 0.00% * = 0.0 Estimated Hours Year 4
Year 5 0.00% * = 0.0 Estimated Hours Year 5
Total 100% = 50.0
Year 1 $144.35 * = $1,804.38 Estimated Hours Year 1
Year 2 $150.85 * = $5,656.72 Estimated Hours Year 2
Year 3 $157.63 * = $0.00 Estimated Hours Year 3
Year 4 $164.73 * = $0.00 Estimated Hours Year 4
Year 5 $172.14 * = $0.00 Estimated Hours Year 5
= $7,461.09
= $7,217.50
= $243.59 Transfer to Page 1
NOTES:
• This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the # of years of the contract, and a breakdown of the labor to be performed each year. • An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology) • This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
EXHIBIT 10-H COST PROPOSAL (EXAMPLE #1) PAGE 2 OF 2
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (SAMPLE CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
3. Calculate estimated hours per year (Multiply estimate % each year by total hours)
2. Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %) Cost per Year
Total Direct Labor Cost with Escalation
Direct Labor Subtotal before Escalation
Estimated total of Direct Labor Salary Increase
0 0
0 (calculated above)
Avg Hourly Rate
(calculated above)
12.5 37.5
4. Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours) OTS
Total Hours
50 Proposed Escalation
4.5%
4.5%
4.5%
4.5%
Direct Labor Subtotal
per Cost Proposal per Cost Proposal
Total Hours
per Cost ProposalCompleted Each Year
Estimated %
50.0 50.0
50.0 50.0
Total
50.0 Estimated hours
LPP 15-01 January 14, 2015
Professional Services Agreement with TY Lin International to prepare a P... Page 803 of 1094 Local Assistance Procedures Manual Exhibit 10-H
Cost Proposal
Note: Mark-ups are Not Allowed
Consultant Contract No. Date 7/31/2025
DIRECT LABOR
hours Actual Hourly Rate Total
12 $80.00 $960.00
23 $58.32 $1,341.36
22 $40.00 $880.00
66 $38.00 $2,508.00
LABOR COSTS
a) Subtotal Direct Labor Costs $5,689.36
b) Anticipated Salary Increases (see page 2 for sample) $192.02 c) TOTAL DIRECT LABOR COSTS [(a) + (b)] $5,881.38
FRINGE BENEFITS
d) Fringe Benefits (Rate: 38.42% ) e) Total Fringe Benefits [(c) x (d)] $2,259.62
INDIRECT COSTS
f) Overhead (Rate: 35.30% ) g) Overhead [(c) x (f)] $2,076.13 h) General and Administrative (Rate: 50.74% ) i) Gen & Admin [(c) x (h)] $2,984.21 j) Total Indirect Costs [(e) + (g) + (i)] $7,319.96
FEE (Profit)
q) (Rate: 10.00% ) k) TOTAL FIXED PROFIT [(c) + (j)] x (q)] $1,320.13
OTHER DIRECT COSTS (ODC)
Description Unit(s) Unit Cost Total
l) Travel/Mileage Costs (supported by consultant
actual costs) 134 $0.70 $93.80
m) Equipment Rental and Supplies (itemize) 0 $0.00 $0.00 n) Permit Fees (itemize), Plan sheets (each), Test 8 $0.63 $5.00 Holes (each), etc. 1 $0.00
o) Subconsultant Costs (attach detailed cost proposal
in same format as prime consultant estimate for
each subconsultant) 0 $0.00 $0.00
p) Total Other Direct Costs [(l) + (m) + (n) + (o)] $98.80 TOTAL COST [(c) + (j) + (k) + (p)] $14,620.27
NOTES:
• Employees subject to prevailing wage requirements to be marked with an *. • ODC items should be based on actual costs and supported by historical data and other documentation. • ODC items that would be considered “tools of the trade” are not reimbursable. • ODC items should be consistently billed directly to all clients, not just when client will pay for them as a direct cost. • ODC items when incurred for the same purpose, in like circumstances, should not be included in any indirect cost pool or in overhead rate.
EXHIBIT 10-H COST PROPOSAL (EXAMPLE #1) PAGE 1 OF 2
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
Reddy Engineering Services, Inc ('RE Services')
Classification/Title Name
Principal Landscape Architect David Preciado
Project Manager Jaime Sandoval
Sr. Landscape Designer Samantha Murray
Landscape Designer Carolina Ogden-Tinoco
LPP 15-01 January 14, 2015
Professional Services Agreement with TY Lin International to prepare a P... Page 804 of 1094 Local Assistance Procedures Manual Exhibit 10-H
Consultant Contract No. Date 7/31/2025
1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) Avg Hourly 5 Year Contract
Rate Duration
$5,689.36 = $46.25 Year 1 Avg Hourly Rate
Avg Hourly Rate
Year 1 $46.25 + = $48.34 Year 2 Avg Hourly Rate
Year 2 $48.34 + = $50.51 Year 3 Avg Hourly Rate
Year 3 $50.51 + = $52.78 Year 4 Avg Hourly Rate
Year 4 $52.78 + = $55.16 Year 5 Avg Hourly Rate
Total Hours
per Year
Year 1 25.00% * = 30.8 Estimated Hours Year 1
Year 2 75.00% * = 92.3 Estimated Hours Year 2
Year 3 0.00% * = 0.0 Estimated Hours Year 3
Year 4 0.00% * = 0.0 Estimated Hours Year 4
Year 5 0.00% * = 0.0 Estimated Hours Year 5
Total 100% = 123.0
Year 1 $46.25 * = $1,422.34 Estimated Hours Year 1
Year 2 $48.34 * = $4,459.04 Estimated Hours Year 2
Year 3 $50.51 * = $0.00 Estimated Hours Year 3
Year 4 $52.78 * = $0.00 Estimated Hours Year 4
Year 5 $55.16 * = $0.00 Estimated Hours Year 5
= $5,881.38
= $5,689.36
= $192.02 Transfer to Page 1
NOTES:
• This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the # of years of the contract, and a breakdown of the labor to be performed each year. • An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology) • This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
Effective multiplier with escalation = (c + j + k)/a = 2.5523908 Page 2 of 5 EXHIBIT 10-H COST PROPOSAL (EXAMPLE #1) PAGE 2 OF 2
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (SAMPLE CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
Reddy Engineering Services, Inc ('RE Services')
Direct Labor Subtotal Total Hours
per Cost Proposal per Cost Proposal
123
2. Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %) Proposed Escalation
4.5%
4.5%
4.5%
4.5%
Total
3. Calculate estimated hours per year (Multiply estimate % each year by total hours) Estimated % Total Hours
Completed Each Year per Cost Proposal
123.0
123.0
123.0
123.0
123.0
4. Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours) Avg Hourly Rate Estimated hours Cost per Year(calculated above) (calculated above) Direct Labor Subtotal before Escalation
Estimated total of Direct Labor Salary Increase
31 92
0 0
0 Total Direct Labor Cost with Escalation
LPP 15-01 January 14, 2015
Professional Services Agreement with TY Lin International to prepare a P... Page 805 of 1094 Local Assistance Procedures Manual Exhibit 10-H
Cost Proposal
Note: Mark-ups are Not Allowed
Consultant Contract No. Jackson St - Indio Date 8/4/2025
DIRECT LABOR
hours Actual Hourly Rate Total
12 $84.13 $1,009.56
44 $76.32 $3,358.08
69 $67.91 $4,685.79
46 $50.00 $2,300.00
14 $41.75 $584.50
LABOR COSTS
a) Subtotal Direct Labor Costs $11,937.93
b) Anticipated Salary Increases (see page 2 for sample) $409.09 c) TOTAL DIRECT LABOR COSTS [(a) + (b)] $12,347.02
FRINGE BENEFITS
d) Fringe Benefits (Rate: 31.09% ) e) Total Fringe Benefits [(c) x (d)] $3,838.69
INDIRECT COSTS
f) Overhead (Rate: 131.79% ) g) Overhead [(c) x (f)] $16,272.14 h) General and Administrative (Rate: 0.00% ) i) Gen & Admin [(c) x (h)] $0.00 j) Total Indirect Costs [(e) + (g) + (i)] $20,110.83
FEE (Profit)
q) (Rate: 10.00% ) k) TOTAL FIXED PROFIT [(c) + (j)] x (q)] $3,245.79
OTHER DIRECT COSTS (ODC)
Description Unit(s) Unit Cost Total
l) Travel/Mileage Costs (supported by consultant
actual costs) 0 $0.00 $0.00
m) Traffic Counts($4800) & Traffic Modeling ($5,000) 0 $0.00 $9,800.00 n) Permit Fees (itemize), Plan sheets (each), Test
Holes (each), etc. 0 $0.00 $0.00
o) Subconsultant Costs (attach detailed cost proposal
in same format as prime consultant estimate for
each subconsultant) 0 $0.00 $0.00
p) Total Other Direct Costs [(l) + (m) + (n) + (o)] $9,800.00 TOTAL COST [(c) + (j) + (k) + (p)] $45,503.64
NOTES:
• Employees subject to prevailing wage requirements to be marked with an *. • ODC items should be based on actual costs and supported by historical data and other documentation. • ODC items that would be considered “tools of the trade” are not reimbursable. • ODC items should be consistently billed directly to all clients, not just when client will pay for them as a direct cost. • ODC items when incurred for the same purpose, in like circumstances, should not be included in any indirect cost pool or in overhead rate.
(Associate) Mark Jugar
(Associate Engineer/Planner) David Mizell
(Assistant Engineer/Planner) Jorge Cuyuch
(Associate Designer) Julio Zamora
(Assistant Designer) Amin Ghahremani
EXHIBIT 10-H COST PROPOSAL (EXAMPLE #1) PAGE 1 OF 2
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
RICK
Classification/Title Name
LPP 15-01 January 14, 2015
Professional Services Agreement with TY Lin International to prepare a P... Page 806 of 1094 Local Assistance Procedures Manual Exhibit 10-H
Consultant Contract No. Jackson St - Indio Date 45873
1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) 45873 Avg Hourly 5 Year Contract
Rate Duration
$11,937.93 = $64.53 Year 1 Avg Hourly Rate
Avg Hourly Rate
Year 1 $64.53 + = $64.53 Year 2 Avg Hourly Rate
Year 2 $64.53 + = $67.43 Year 3 Avg Hourly Rate
Year 3 $67.43 + = $70.47 Year 4 Avg Hourly Rate
Year 4 $70.47 + = $73.64 Year 5 Avg Hourly Rate
Total Hours
per Year
Year 1 25.00% * = 46.3 Estimated Hours Year 1
Year 2 75.00% * = 138.8 Estimated Hours Year 2
Year 3 0.00% * = 0.0 Estimated Hours Year 3
Year 4 0.00% * = 0.0 Estimated Hours Year 4
Year 5 0.00% * = 0.0 Estimated Hours Year 5
Total 100% = 185.0
Year 1 $64.53 * = $2,987.74 Estimated Hours Year 1
Year 2 $67.43 * = $9,359.28 Estimated Hours Year 2
Year 3 $70.47 * = $0.00 Estimated Hours Year 3
Year 4 $73.64 * = $0.00 Estimated Hours Year 4
Year 5 $76.95 * = $0.00 Estimated Hours Year 5
= $12,347.02
= $11,937.93
= $409.09 Transfer to Page 1
NOTES:
• This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the # of years of the contract, and a breakdown of the labor to be performed each year. • An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology) • This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
Direct Labor Subtotal before Escalation
Estimated total of Direct Labor Salary Increase
46 139
0 0
0 Total Direct Labor Cost with Escalation
4. Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours) Avg Hourly Rate Estimated hours Cost per Year(calculated above) (calculated above) Total
3. Calculate estimated hours per year (Multiply estimate % each year by total hours) Estimated % Total Hours
Completed Each Year per Cost Proposal
185.0
185.0
185.0
185.0
185.0
per Cost Proposal per Cost Proposal
185
2. Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %) Proposed Escalation
0%
5%
5%
5%
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (SAMPLE CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
RICK
Direct Labor Subtotal Total Hours
EXHIBIT 10-H COST PROPOSAL (EXAMPLE #1) PAGE 2 OF 2
LPP 15-01 January 14, 2015
Professional Services Agreement with TY Lin International to prepare a P... Page 807 of 1094 Local Assistance Procedures Manual Exhibit 10-H
Cost Proposal
Note: Mark-ups are Not Allowed
Consultant Contract No. Date 30-Jul-25
DIRECT LABOR
hours Actual Hourly Rate Total
40 $78.50 $3,140.00
64 $63.75 $4,080.00
64 $69.25 $4,432.00
8 $90.22 $721.76
32 $77.47 $2,479.04
LABOR COSTS
a) Subtotal Direct Labor Costs $14,852.80
b) Anticipated Salary Increases (see page 2 for sample) $217.08 c) TOTAL DIRECT LABOR COSTS [(a) + (b)] $15,069.88
FRINGE BENEFITS
d) Fringe Benefits (Rate: 71.73% ) e) Total Fringe Benefits [(c) x (d)] $10,809.62
INDIRECT COSTS
f) Overhead (Rate: 155.76% ) g) Overhead [(c) x (f)] $23,472.84 h) General and Administrative (Rate: 0.00% ) i) Gen & Admin [(c) x (h)] $0.00 j) Total Indirect Costs [(e) + (g) + (i)] $34,282.47
FEE (Profit)
q) (Rate: 10.00% ) k) TOTAL FIXED PROFIT [(c) + (j)] x (q)] $4,935.23
OTHER DIRECT COSTS (ODC)
Description Unit(s) Unit Cost Total
l) Travel/Mileage Costs (supported by consultant
actual costs) 5 $1,500.00 $7,500.00
m) Equipment Rental and Supplies (itemize) 1 $1,000.00 $1,000.00 Aerial lift - 1 day n) Permit Fees (itemize), Plan sheets (each), Test
Holes (each), etc. 4 $300.00 $1,200.00 Coring & shipping o) Subconsultant Costs (attach detailed cost proposal
in same format as prime consultant estimate for
each subconsultant) 1 $7,000.00 $7,000.00 Snooper & traffic control p) Total Other Direct Costs [(l) + (m) + (n) + (o)] $16,700.00 TOTAL COST [(c) + (j) + (k) + (p)] $70,987.58
NOTES:
• Employees subject to prevailing wage requirements to be marked with an *. • ODC items should be based on actual costs and supported by historical data and other documentation. • ODC items that would be considered “tools of the trade” are not reimbursable. • ODC items should be consistently billed directly to all clients, not just when client will pay for them as a direct cost. • ODC items when incurred for the same purpose, in like circumstances, should not be included in any indirect cost pool or in overhead rate.
Project Manager Brian Kehoe
Senior Associate William Rosenblatt
Senior Associate Curtis Schroeder
Principal Wade Clark
Senior Petrographer Derek Cong
EXHIBIT 10-H COST PROPOSAL (EXAMPLE #1) PAGE 1 OF 2
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (DESIGN, ENGINEERING AND ENVIRONMENTAL STUDIES)
Wiss, Janney, Elstner Associates, Inc.
Classification/Title Name
LPP 15-01 January 14, 2015
Professional Services Agreement with TY Lin International to prepare a P... Page 808 of 1094 Local Assistance Procedures Manual Exhibit 10-H
Consultant Contract No. Date 7/30/2025
1. Calculate Average Hourly Rate for 1st year of the contract (Direct Labor Subtotal divided by total hours) 45868 Avg Hourly 5 Year Contract
Rate Duration
$14,852.80 = $71.41 Year 1 Avg Hourly Rate
Avg Hourly Rate
Year 1 $71.41 + = $74.26 Year 2 Avg Hourly Rate
Year 2 $74.26 + = $77.23 Year 3 Avg Hourly Rate
Year 3 $77.23 + = $80.32 Year 4 Avg Hourly Rate
Year 4 $80.32 + = $83.54 Year 5 Avg Hourly Rate
Total Hours
per Year
Year 1 63.48% * = 132.0 Estimated Hours Year 1
Year 2 36.52% * = 76.0 Estimated Hours Year 2
Year 3 0.00% * = 0.0 Estimated Hours Year 3
Year 4 0.00% * = 0.0 Estimated Hours Year 4
Year 5 0.00% * = 0.0 Estimated Hours Year 5
Total 100% = 208.0
Year 1 $71.41 * = $9,425.82 Estimated Hours Year 1
Year 2 $74.26 * = $5,644.06 Estimated Hours Year 2
Year 3 $77.23 * = $0.00 Estimated Hours Year 3
Year 4 $80.32 * = $0.00 Estimated Hours Year 4
Year 5 $83.54 * = $0.00 Estimated Hours Year 5
= $15,069.88
= $14,852.80
= $217.08 Transfer to Page 1
NOTES:
• This is not the only way to estimate salary increases. Other methods will be accepted if they clearly indicate the % increase, the # of years of the contract, and a breakdown of the labor to be performed each year. • An estimation that is based on direct labor multiplied by salary increase % multiplied by the # of years is not acceptable. (i.e. $250,000 x 2% x 5 yrs = $25,000 is not an acceptable methodology) • This assumes that one year will be worked at the rate on the cost proposal before salary increases are granted.
Direct Labor Subtotal before Escalation
Estimated total of Direct Labor Salary Increase
132
76 0
0 0
Total Direct Labor Cost with Escalation
4. Calculate Total Costs including Escalation (Multiply Average Hourly Rate by the number of hours) Avg Hourly Rate Estimated hours Cost per Year(calculated above) (calculated above) Total
3. Calculate estimated hours per year (Multiply estimate % each year by total hours) Estimated % Total Hours
Completed Each Year per Cost Proposal
208.0
208.0
0.0 0.0
0.0 per Cost Proposal per Cost Proposal
208
2. Calculate hourly rate for all years (Increase the Average Hourly Rate for a year by proposed escalation %) Proposed Escalation
4%
4%
4%
4%
ACTUAL COST-PLUS-FIXED FEE OR LUMP SUM (FIRM FIXED PRICE) CONTRACTS (SAMPLE CALCULATIONS FOR ANTICIPATED SALARY INCREASES)
Wiss, Janney, Elstner Associates, Inc.
Direct Labor Subtotal Total Hours
EXHIBIT 10-H COST PROPOSAL (EXAMPLE #1) PAGE 2 OF 2
LPP 15-01 January 14, 2015
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EXHIBIT “C”
INSURANCE - ADDENDUM “1”
Without limiting Consultant’s indemnification of City, and prior to commencement of work and/or services under this Agreement, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII.
Consultant shall provide the following scope and limits of insurance:
MINIMUM SCOPE OF INSURANCE. Consultant shall maintain the following types and limits of insurance:
GENERAL LIABILITY INSURANCE. Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
AUTOMOBILE LIABILITY INSURANCE. Consultant shall maintain automobile liability insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Services to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
PROFESSIONAL LIABILITY (ERRORS & OMISSIONS) INSURANCE. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
WORKERS’ COMPENSATION INSURANCE. Consultant shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000 per accident or disease). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers.
UMBRELLA OR EXCESS LIABILITY INSURANCE. [Optional depending on limits required]. As an option to meet the limits of insurance required by this Agreement, Consultant may obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial
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general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop -down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason;
• Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
Should Consultant obtain and maintain an excess liability policy, such policy shall be excess over commercial general liability, automobile liability and employer’s liability policies.
PROOF OF INSURANCE. Consultant shall provide certificates of insurance and required endorsements to Agency as evidence of the insurance coverage required herein.
Insurance certificates and endorsements must be approved by the Agency’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with Agency for the contract period and any additional length of time required thereafter. Agency reserves the right to require complete, certified copies of all required insurance policies, at any time.
DURATION OF COVERAGE. Consultant shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the Work hereunder by Consultant, their agents, representatives, employees, or subconsultants.
PRIMARY/NONCONTRIBUTING. Coverage provided by Consultant shall be primary and any insurance or self -insurance procured or maintained by Agency shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and u mbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of Agency before the Agency’s own insurance or s elf-insurance shall be called upon to protect it as a maned insured.
CITY’S RIGHT OF ENFORCEMENT. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced Agency has the right but not the duty to obtain the insurance It deems necessary, and any premium paid by Agency will be promptly reimbursed by Consultant or Agency will withhold amounts sufficient to pay premium from Consultant payments.
In the alternative, Agency may cancel this Agreement.
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ACCEPTABLE INSURERS. All insurance policies shall be issued by an Insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the Agency’s Risk Manager.
WAIVER OF SUBROGATION. All Insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against Agency, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow Consultant or other s providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its n right of recovery against Agency and shall require similar written express waivers and insurance clauses from each of its subconsultants.
ENFORCEMENT OF CONTRACT PROVISIONS (NON ESTOPPEL). Consultant acknowledges and agrees that any actual or alleged failure on the part of the Agency to inform Consultant of non-compliance with any requirement imposes no additional obligations on the Agency nor does it waive any rights hereunder.
REQUIREMENTS NOT LIMITING . Requirements of specific coverage features or limits obtained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance.
Specific reference to a given coverage feature Is for purposes of clarification only as it pertains to given issue and is not intended by any party or Insured lo be all Inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than t he minimums shown above, the Agency requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available Insurance proceeds in excess of the specified minimum limits of Insurance and coverage shall be available to the Agency.
NOTICE OF CANCELLATION. Consultant agrees to oblige its insurance agent or broker and insurers to provide the Agency with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the Consultant's insurers are unwilling to provide such notice, then Consultant shall have the responsibility of notifying the Agency immediately in the event of Consultant's failure to renew any of the required insurance coverages, or insurer's cancellation or non-renewal.
PROHIBITION OF UNDISCLOSED COVERAGE LIMITATIONS . None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to Agency and approved of in writing.
SEPARATION OF INSUREDS . A severability of interest provision must apply for all additional insureds ensuring that Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brough, except with respect to
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the insurer’s limits of liability. The policy(ies) shall not contain any cross -liability exclusions.
PASS THROUGH CLAUSE . Consultant agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Consultant (hereinafter collectively "Subcontractor'"), provide the same minimum insurance coverage and endorsements required of Consultant under this Agreement Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Consultant's Subcontractor cannot comply with this requirement, which proof must be submitted to the Agency, Consultant may still be able to utilize the Subcontractor provided Consultant shall be required to ensure that its Subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with Subcontractor's scope of work and services, with limits less than required of the Consultant, but in all other terms consistent with the Consultant's requirements under this Agreement. This provision does not relieve the Consultant of its contractual obligations under the Agreement and/or limit its liability lo the amount of insurance coverage provided by its Subcontractors. This provision is intended solely to provide Consultant with the ability to util ize a Subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Consultant under this Agreement given the limited scope of work or services provided by the Subcontractors, and others engaged in the project and/or services, will be submitted to the Agency.
CITY’S RIGHT TO REVISE SPECIFICATIONS. The Agency reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the Agency and Consultant may renegotiate Consultant's compensation.
SELF-INSURED RETENTIONS . Any self -insured retentions must be declared to and approved by Agency. Agency reserves the right to require that self -insured retentions by eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investig ations, claim administration, and defense expenses within the retention through confirmation from the underwriter.
TIMELY NOTICE OF CLAIMS . Consultant shall give Agency prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.
ADDITIONAL INSURANCE. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
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OTHER PROVISIONS. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City.
(A) OTHER REQUIREMENTS. Consultant shall deposit with City, at or before the effective date of this Agreement, certificates of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with.
The City Attorney may require that Con sultant furnish City with copies of original endorsements effecting coverage required by this Section. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf.
1. Upon request from the City, Consultant shall furnish certificates and endorsements from each subcontractor identical to those Consultant provides.
2. Any deductibles or self -insured reten tions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects City or its respective elected or appointed officers, officials, employees and volunteers or the Consultant shall procure a bond guaranteeing payment of losses and related investigations, claim
administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Consultant’s liability hereunder nor to fulfill the indemnification provisions and requirements of this Agreement.
4. Coverage provided by Consultant shall be primary and any insurance or self- insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non - contributory basis for the benefit of City before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.
5. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
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6. General liability , automobile liability and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies.
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ADDENDUM “2"
FEDERAL FUNDS
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As used throughout Addendum 2, LOCAL AGENCY shall mean the City of Indio.
ARTICLE I INTRODUCTION – NOT USED
ARTICLE II CONSULTANT’S REPORTS OR MEETINGS
A. CONSULTANT shall submit progress reports at least once a month. The report should be sufficiently detailed for the LOCAL AGENCY’s Contract Administrator to determine, if CONSULTANT is performing to expectations, or is on schedule; to provide communication of interim findings, and to sufficiently address any difficulties or special problems encountered, so remedies can be developed.
B. CONSULTANT’s Project Manager shall meet with LOCAL AGENCY’s Contract Administrator, as needed, to discuss progress on the AGREEMENT.
ARTICLE III STATEMENT OF WORK – NOT USED
ARTICLE IV PERFORMANCE PERIOD
A. This AGREEMENT shall go into effect on the Effective Date, contingent upon approval by LOCAL AGENCY, and CONSULTANT shall commence work after notification to proceed by LOCAL AGENCY’S Contract Administrator. The AGREEMENT shall end on August 20, 2028 , unless extended by AGREEMENT amendment.
B. CONSULTANT is advised that any recommendation for AGREEMENT award is not binding on LOCAL AGENCY until the AGREEMENT is fully executed and approved by LOCAL AGENCY.
ARTICLE V ALLOWABLE COSTS AND PAYMENTS
A. The method of payment for this AGREEMENT will be based on lump sum. The total lump sum price paid to CONSULTANT will include compensation for all work and deliverables, including travel and equipment described in Exhibit A Scope of Services. No additional compensation will be paid to CONSULTANT, unless there is a change in the scope of the work or the scope of the project. In the instance of a change in the scope of work or scope of the project, adjustment to the total lump sum compensation will be negotiated between CONSULTANT and LOCAL AGENCY. Adjustment in the total lump sum compensation will not be effective until authorized by AGREEMENT amendment and approved by LOCAL AGENCY.
B. Progress payments may be made monthly in arrears based on the percentage of work completed by CONSULTANT. If CONSULTANT fails to submit the required deliverable items according to the schedule set forth in Exhibit A Scope of Services, LOCAL AGENCY shall have the right to delay payment or terminate this AGREEMENT in accordance with the provisions of Article VI Termination.
C. CONSULTANT shall not commence performance of work or services until this AGREEMENT has been approved by LOCAL AGENCY and notification to proceed has been issued by LOCAL AGENCY’S Contract Administrator. No payment will
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be made prior to approval of any work, or for any work performed prior to approval of this AGREEMENT.
D. CONSULTANT will be reimbursed within thirty (30) days upon receipt by LOCAL AGENCY’S Contract Administrator of itemized invoices in duplicate. Invoices shall be submitted no later than thirty (30) calendar days after the performance of work for which CONSULTANT is billing. Invoices shall detail the work performed on each milestone, on each project as applicable. Invoices shall follow the format stipulated for the approved Cost Proposal and shall reference this AGREEMENT number and project title. Final invoice must contain the final cost and all credits due LOCAL AGENCY that include any equipment purchased under the provisions of Article XI Equipment Purchase. The final invoice must be submitted within sixty (60) calendar days after completion of CONSULTANT’s work unless a later date is approved by the LOCAL AGENCY. Invoices shall be mailed to LOCAL AGENCY’s Contract Administrator at the following address:
[email protected]; [email protected].
E. The total amount payable by LOCAL AGENCY shall not exceed Five Hundred Thirty-Seven Thousand Thirty -Five Dollars and Seventy -Nine Cents ($537,035.79).
ARTICLE VI TERMINATION
A. This AGREEMENT may be terminated by LOCAL AGENCY, provided that LOCAL AGENCY gives not less than thirty (30) calendar days’ written notice (delivered by certified mail, return receipt requested) of intent to terminate. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
B. LOCAL AGENCY may temporarily suspend this AGREEMENT, at no additional cost to LOCAL AGENCY, provided that CONSULTANT is given written notice (delivered by certified mail, return receipt requested) of temporary suspension. If LOCAL AGENCY gives such notice of temporary suspension, CONSULTANT shall immediately suspend its activities under this AGREEMENT. A temporary suspension may be issued concurrent with the notice of termination.
C. Notwithstanding any provisions of this AGREEMENT, CONSULTANT shall not be relieved of liability to LOCAL AGENCY for damages sustained by City by virtue of any breach of this AGREEMENT by CONSULTANT, and City may withhold any payments due to CONSULTANT until such time as the exact amount of damages, if any, due City from CONSULTANT is determined.
D. In the event of termination, CONSULTANT shall be compensated as provided for in this AGREEMENT. Upon termination, LOCAL AGENCY shall be entitled to all work, including but not limited to, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not.
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ARTICLE VII COST PRINCIPLES AND ADMINISTRATIVE REQUIREMENTS A. The CONSULTANT agrees that 48 CFR 31, Contract Cost Principles and Procedures, shall be used to determine the allowability of individual terms of cost.
B. The CONSULTANT also agrees to comply with Federal procedures in accordance with 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
C. Any costs for which payment has been made to the CONSULTANT that are determined by subsequent audit to be unallowable under 48 CFR 31 or 2 CFR 200 are subject to repayment by the CONSULTANT to LOCAL AGENCY.
D. When a CONSULTANT or Subconsultant is a Non -Profit Organization or an Institution of Higher Education, the Cost Principles for Title 2 CFR 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards shall apply.
ARTICLE VIII RETENTION OF RECORD/AUDITS
For the purpose of determining compliance with Gov. Code § 8546.7, the CONSULTANT, Subconsultants, and LOCAL AGENCY shall maintain all books, documents, papers, accounting records, Independent CPA Audited Indirect Cost Rate workpapers, and other evidence pertaining to the performance of the AGREEMENT including, but not limited to, the costs of administering the AGREEMENT. All parties, including the CONSULTANT’s Independent CPA, shall make such workpapers and materials available at their respective offices at all reasonable times during the AGREEMENT period and for three (3) years from the date of final payment under the AGREEMENT and records for real property and equipment acquired with federal funds must be retained for three (3) years after final disposition. LOCAL AGENCY, Caltrans Auditor, FHWA, or any duly authorized representative of the Federal government having jurisdiction under Federal laws or regulations (including the basis of Federal funding in whole or in part) shall have access to any books, records, and documents of the CONSULTANT, Subconsultants, and the CONSULTANT’s Independent CPA, that are pertinent to the AGREEMENT for audits, examinations, workpaper review, excerpts, and transactions, and copies thereof shall be furnished if requested without limitation.
ARTICLE IX AUDIT REVIEW PROCEDURES
A. Any dispute concerning a question of fact arising under an interim or post audit of this AGREEMENT that is not disposed of by AGREEMENT, shall be reviewed by LOCAL AGENCY’S Chief Financial Officer.
B. Not later than thirty (30) calendar days after issuance of the final audit report, CONSULTANT may request a review by LOCAL AGENCY’S Chief Financial Officer of unresolved audit issues. The request for review will be submitted in writing.
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C. Neither the pendency of a dispute nor its consideration by LOCAL AGENCY will excuse CONSULTANT from full and timely performance, in accordance with the terms of this AGREEMENT.
D. CONSULTANT and subconsultant AGREEMENTs, including cost proposals and Indirect Cost Rates (ICR), may be subject to audits or reviews such as, but not limited to, an AGREEMENT audit, an incurred cost audit, an ICR Audit, or a CPA ICR audit work paper review. If selected for audit or review, the AGREEMENT, cost proposal and ICR and related work papers, if applicable, will be reviewed to verify compliance with 48 CFR 31 and other related laws and regulations. In the instances of a CPA ICR audit work paper review it is CONSULTANT’s responsibility to ensure federal, LOCAL AGENCY, or local government officials are allowed full access to the CPA’s work papers including making copies as necessary. The AGREEMENT, cost proposal, and ICR shall be adjusted by CONSULTANT and approved by LOCAL AGENCY Contract Administrator to conform to the audit or review recommendations. CONSULTANT agrees that individual terms of costs identified in the audit report shall be incorporated into the AGREEMENT by this reference if directed by LOCAL AGENCY at its sole discretion. Refusal by CONSULTANT to incorporate audit or review recommendations, or to ensure that the federal, LOCAL AGENCY or local governments have access to CPA work papers, will be considered a breach of AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
E. CONSULTANT’s Cost Proposal may be subject to a CPA ICR Audit Work Paper Review and/or audit by the Independent Office of Audits and Investigations (IOAI). IOAI, at its sole discretion, may review and/or audit and approve the CPA ICR documentation. The Cost Proposal shall be adjusted by the CONSULTANT and approved by the LOCAL AGENCY Contract Administrator to conform to the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report.
Refusal by the CONSULTANT to incorporate the Work Paper Review recommendations included in the management letter or audit recommendations included in the audit report will be considered a breach of the AGREEMENT terms and cause for termination of the AGREEMENT and disallowance of prior reimbursed costs.
1. During IOAI’s review of the ICR audit work papers created by the CONSULTANT’s independent CPA, IOAI will work with the CPA and/or CONSULTANT toward a resolution of issues that arise during the review.
Each party agrees to use its best efforts to resolve any audit disputes in a timely manner. If IOAI identifies significant issues during the review and is unable to issue a cognizant approval letter, LOCAL AGENCY will reimburse the CONSULTANT at an accepted ICR until a FAR (Federal Acquisition Regulation) comp liant ICR (e.g. 48 CFR Part 31; GAGAS (Generally Accepted Auditing Standards); CAS (Cost Accounting Standards), if applicable; in accordance with procedures and guidelines of the American Association of State Highways and Transportation Officials (AASHTO) Audit
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Guide; and other applicable procedures and guidelines) is received and approved by IOAI.
Accepted rates will be as follows:
a. If the proposed rate is less than one hundred fifty percent (150%) - the accepted rate reimbursed will be ninety percent (90%) of the proposed rate.
b. If the proposed rate is between one hundred fifty percent (150%) and two hundred percent (200%) - the accepted rate will be eighty-five percent (85%) of the proposed rate.
c. If the proposed rate is greater than two hundred percent (200%) - the accepted rate will be seventy -five percent (75%) of the proposed rate.
2. If IOAI is unable to issue a cognizant letter per paragraph E.1. above, IOAI may require CONSULTANT to submit a revised independent CPA -audited ICR and audit report within three (3) months of the effective date of the management letter. IOAI will then have up to six (6) months to review the CONSULTANT’s and/or the independent CPA’s revisions.
3. If the CONSULTANT fails to comply with the provisions of this paragraph E, or if IOAI is still unable to issue a cognizant approval letter after the revised independent CPA audited ICR is submitted, overhead cost reimbursement will be limited to the accepted ICR that was established upon initial rejection of the ICR and set forth in paragraph E.1. above for all rendered services. In this event, this accepted ICR will become the actual and final ICR for reimbursement purposes under this AGREEMENT.
4. CONSULTANT may submit to LOCAL AGENCY final invoice only when all of the following items have occurred: (1) IOAI accepts or adjusts the original or revised independent CPA audited ICR; (2) all work under this AGREEMENT has been completed to the satisfactio n of LOCAL AGENCY; and, (3) IOAI has issued its final ICR review letter. The CONSULTANT MUST SUBMIT ITS FINAL INVOICE TO LOCAL AGENCY no later than sixty (60) calendar days after occurrence of the last of these items. The accepted ICR will apply to this AGREEMENT and all other agreements executed between LOCAL AGENCY and the CONSULTANT, either as a prime or subconsultant, with the same fiscal period ICR.
ARTICLE X SUBCONTRACTING
A. Nothing contained in this AGREEMENT or otherwise, shall create any contractual relation between the LOCAL AGENCY and any Subconsultants, and no subagreement shall relieve the CONSULTANT of its responsibilities and obligations hereunder. The CONSULTANT agrees to be as fully responsible to the LOCAL AGENCY for the acts and omissions of its Subconsultants and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the CONSULTANT. The
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CONSULTANT's obligation to pay its Subconsultants is an independent obligation from the LOCAL AGENCY's obligation to make payments to the CONSULTANT.
B. The CONSULTANT shall perform the work contemplated with resources available within its own organization and no portion of the work shall be subcontracted without written authorization by the LOCAL AGENCY Contract Administrator, except that which is expressly identified in the CONSULTANT’s approved Cost Proposal.
C. Any subagreement entered into as a result of this AGREEMENT, shall contain all the provisions stipulated in this entire AGREEMENT to be applicable to Subconsultants unless otherwise noted.
D. CONSULTANT shall pay its Subconsultants within Fifteen (15) calendar days from receipt of each payment made to the CONSULTANT by the LOCAL AGENCY.
E. Any substitution of Subconsultants must be approved in writing by the LOCAL AGENCY Contract Administrator in advance of assigning work to a substitute Subconsultant.
F. Prompt Progress Payment
CONSULTANT or subconsultant shall pay to any subconsultant, not later than fifteen (15) days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed CONSULTANT on account of the work performed by the subconsultants, to the extent of each subconsultant’s interest therein. In the event that there is a good faith dispute over all or any portion of the amount due on a progress payment from CONSULTANT or subconsultant to a subconsultant, CONSULTANT or subconsultant may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subconsultant, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs. The sanctions authorized under this requirement shall be separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subconsultants.
G. Prompt Payment of Withheld Funds to Subconsultants
The LOCAL AGENCY may hold retainage from CONSULTANT and shall make prompt and regular incremental acceptances of portions, as determined by the LOCAL AGENCY, of the contract work, and pay retainage to CONSULTANT
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based on these acceptances. The LOCAL AGENCY shall designate one of the methods below in the contract to ensure prompt and full payment of any retainage kept by CONSULTANT or subconsultant to a subconsultant.
Method 1: No retainage will be held by the LOCAL AGENCY from progress payments due to CONSULTANT. CONSULTANTS and subconsultants are prohibited from holding retainage from subconsultants. Any delay or postponement of payment may take place only for good cause and with the LOCAL AGENCY’s prior written approval. Any violation of these provisions shall subject the violating CONSULTANT or subconsultant to the penalties, sanctions, and other remedies specified in Section 3321 of the California Civil Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies, otherwise available to CONSULTANT or subconsultant in the event of a dispute involving late payment or nonpayment by CONSULTANT, deficient subconsultant performance and/or noncompliance by a subconsultant. This clause applies to both DBE and non-DBE subconsultants.
ARTICLE XI EQUIPMENT PURCHASE AND OTHER CAPITAL EXPENDITURES A. Prior authorization in writing by LOCAL AGENCY’s Contract Administrator shall be required before CONSULTANT enters into any unbudgeted purchase order, or subcontract exceeding five thousand dollars ($5,000) for supplies, equipment, or CONSULTANT services. CONSULTANT shall provide an evaluation of the necessity or desirability of incurring such costs.
B. For purchase of any item, service, or consulting work not covered in CONSULTANT’s approved Cost Proposal and exceeding five thousand dollars ($5,000), with prior authorization by LOCAL AGENCY’s Contract Administrator, three competitive quotations must be s ubmitted with the request, or the absence of proposal must be adequately justified.
C. Any equipment purchased with funds provided under the terms of this AGREEMENT is subject to the following:
1. CONSULTANT shall maintain an inventory of all nonexpendable property.
Nonexpendable property is defined as having a useful life of at least two years and an acquisition cost of five thousand dollars ($5,000) or more. If the purchased equipment needs replac ement and is sold or traded in, LOCAL AGENCY shall receive a proper refund or credit at the conclusion of the AGREEMENT, or if the AGREEMENT is terminated, CONSULTANT may either keep the equipment and credit LOCAL AGENCY in an amount equal to its fair market value, or sell such equipment at the best price obtainable at a public or private sale, in accordance with established LOCAL AGENCY procedures; and credit LOCAL AGENCY in an amount equal to the sales price. If CONSULTANT elects to keep the equipment, fair market value shall be determined at CONSULTANT’s expense, on the basis of a competent independent appraisal of such equipment. Appraisals shall be
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obtained from an appraiser mutually agreeable to by LOCAL AGENCY and CONSULTANT, if it is determined to sell the equipment, the terms and conditions of such sale must be approved in advance by LOCAL AGENCY.
2. Regulation 2 CFR 200 requires a credit to Federal funds when participating equipment with a fair market value greater than five thousand dollars ($5,000) is credited to the project.
ARTICLE XII STATE PREVAILING WAGE RATES
A. No CONSULTANT or Subconsultant may be awarded an AGREEMENT containing public work elements unless registered with the Department of Industrial Relations (DIR) pursuant to Labor Code §1725.5. Registration with DIR must be maintained throughout the entire te rm of this AGREEMENT, including any subsequent amendments.
B. The CONSULTANT shall comply with all of the applicable provisions of the California Labor Code requiring the payment of prevailing wages. The General Prevailing Wage Rate Determinations applicable to work under this AGREEMENT are available and on file with the Department of Transportation's Regional/District Labor Compliance Officer
(https://dot.ca.gov/programs/construction/labor-compliance). These wage rates are made a specific part of this AGREEMENT by reference pursuant to Labor Code §1773.2 and will be applicable to work performed at a construction project site. Prevailing wages will be applicable to all inspection work performed at LOCAL AGENCY construction sites, at LOCAL AGENCY facilities and at off-site locations that are set up by the construction contractor or one of its subcontractors solely and specifically to serve LOCAL AGENCY projects.
Prevailing wage requirements do not apply to inspection work performed at the facilities of vendors and commercial materials suppliers that provide goods and services to the general public.
C. General Prevailing Wage Rate Determinations applicable to this project may also be obtained from the Department of Industrial Relations website at http://www.dir.ca.gov.
D. Payroll Records
1. Each CONSULTANT and Subconsultant shall keep accurate certified payroll records and supporting documents as mandated by Labor Code §1776 and as defined in 8 CCR §16000 showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by the CONSULTANT or Subconsultant in connection with the public work. Each payroll record shall contain or be verified by a written declaration that it is made under penalty of perjury, stating both of the following:
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a. The information contained in the payroll record is true and correct. b. The employer has complied with the requirements of Labor Code §1771, §1811, and §1815 for any work performed by his or her employees on the public works project.
2. The payroll records enumerated under paragraph (1) above shall be certified as correct by the CONSULTANT under penalty of perjury. The payroll records and all supporting documents shall be made available for inspection and copying by LOCAL AGENCY representatives at all reasonable hours at the principal office of the CONSULTANT. The CONSULTANT shall provide copies of certified payrolls or permit inspection of its records as follows:
a. A certified copy of an employee's payroll record shall be made available for inspection or furnished to the employee or the employee's authorized representative on request.
b. A certified copy of all payroll records enumerated in paragraph (1) above, shall be made available for inspection or furnished upon request to a representative of LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards of the Department of Industrial Relations. Certified payrolls submitted to LOCAL AGENCY, the Division of Labor Standards Enforcement and the Division of Apprenticeship Standards shall not be altered or obliterated by the CONSULTANT.
c. The public shall not be given access to certified payroll records by the CONSULTANT. The CONSULTANT is required to forward any requests for certified payrolls to the LOCAL AGENCY Contract Administrator by both email and regular mail on the business day fol lowing receipt of the request.
3. Each CONSULTANT shall submit a certified copy of the records enumerated in paragraph (1) above, to the entity that requested the records within ten (10) calendar days after receipt of a written request.
4. Any copy of records made available for inspection as copies and furnished upon request to the public or any public agency by LOCAL AGENCY shall be marked or obliterated in such a manner as to prevent disclosure of each individual's name, address, and social security number. The name and address of the CONSULTANT or Subconsultant performing the work shall not be marked or obliterated.
5. The CONSULTANT shall inform LOCAL AGENCY of the location of the records enumerated under paragraph (1) above, including the street address, city and county, and shall, within five (5) working days, provide a notice of a change of location and address.
6. The CONSULTANT or Subconsultant shall have ten (10) calendar days in
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which to comply subsequent to receipt of written notice requesting the records enumerated in paragraph (1) above. In the event the CONSULTANT or Subconsultant fails to comply within the ten (10) day period, he or she shall, as a penalty to LOCAL AGENCY, fo rfeit one hundred dollars ($100) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. Such penalties shall be withheld by LOCAL AGENCY from payments then due. CONSULTANT is not subject to a penalty assessment pursuant to this section due to the failure of a Subconsultant to comply with this section.
E. When prevailing wage rates apply, the CONSULTANT is responsible for verifying compliance with certified payroll requirements. Invoice payment will not be made until the invoice is approved by the LOCAL AGENCY Contract Administrator.
F. Penalty
1. The CONSULTANT and any of its Subconsultants shall comply with Labor Code §1774 and §1775. Pursuant to Labor Code §1775, the CONSULTANT and any Subconsultant shall forfeit to the LOCAL AGENCY a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of DIR for the work or craft in which the worker is employed for any public work done under the AGREEMENT by the CONSULTANT or by its Subconsultant in violation of the requirements of the Labor Code and in particular, Labor Code §§1770 to 1780, inclusive.
2. The amount of this forfeiture shall be determined by the Labor Commissioner and shall be based on consideration of mistake, inadvertence, or neglect of the CONSULTANT or Subconsultant in failing to pay the correct rate of prevailing wages, or the previous record of the CONSULTANT or Subconsultant in meeting their respective prevailing wage obligations, or the willful failure by the CONSULTANT or Subconsultant to pay the correct rates of prevailing wages. A mistake, inadvertence, or neglect in failing to pay the correct rates of prevailing wages is not excusable if the CONSULTANT or Subconsultant had knowledge of the obligations under the Labor Code. The CONSULTANT is responsible for paying the appropriate rate, including any escalations that take place during the term of the AGREEMENT.
3. In addition to the penalty and pursuant to Labor Code §1775, the difference between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the CONSULTANT or Subconsultant.
4. If a worker employed by a Subconsultant on a public works project is not
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paid the general prevailing per diem wages by the Subconsultant, the CONSULTANT of the project is not liable for the penalties described above unless the CONSULTANT had knowledge of that failure of the Subconsultant to pay the specified prevailing rate of wages to those workers or unless the CONSULTANT fails to comply with all of the following requirements:
a. The AGREEMENT executed between the CONSULTANT and the Subconsultant for the performance of work on public works projects shall include a copy of the requirements in Labor Code §§ 1771, 1775, 1776, 1777.5, 1813, and 1815.
b. The CONSULTANT shall monitor the payment of the specified general prevailing rate of per diem wages by the Subconsultant to the employees by periodic review of the certified payroll records of the Subconsultant.
c. Upon becoming aware of the Subconsultant’s failure to pay the specified prevailing rate of wages to the Subconsultant’s workers, the CONSULTANT shall diligently take corrective action to halt or rectify the failure, including but not limited to, retaining sufficient funds due the Subconsultant for work performed on the public works project.
d. Prior to making final payment to the Subconsultant for work performed on the public works project, the CONSULTANT shall obtain an affidavit signed under penalty of perjury from the Subconsultant that the Subconsultant had paid the specified general prevailing rate of per diem wages to the Subconsultant’s employees on the public works project and any amounts due pursuant to Labor Code §1813.
5. Pursuant to Labor Code §1775, LOCAL AGENCY shall notify the CONSULTANT on a public works project within fifteen (15) calendar days of receipt of a complaint that a Subconsultant has failed to pay workers the general prevailing rate of per diem wages.
6. If LOCAL AGENCY determines that employees of a Subconsultant were not paid the general prevailing rate of per diem wages and if LOCAL AGENCY did not retain sufficient money under the AGREEMENT to pay those employees the balance of wages owed under the general prevailing rate of per diem wages, the CONSULTANT shall withhold an amount of moneys due the Subconsultant sufficient to pay those employees the general prevailing rate of per diem wages if requested by LOCAL AGENCY.
G. Hours of Labor
Eight (8) hours labor constitutes a legal day's work. The CONSULTANT shall forfeit, as a penalty to the LOCAL AGENCY, twenty-five dollars ($25) for each
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worker employed in the execution of the AGREEMENT by the CONSULTANT or any of its Subconsultants for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of the provisions of the Labor Code, and in particular §§1810 to 1815 thereof, inclusive, except that work performed by employees in excess of eight (8) hours per day, and forty (40) hours during any one week, shall be permitted upon compensation for all hours worked in excess of eight (8) hours per day and forty (40) hours in any week, at not less than one and one -half (1.5) times the basic rate of pay, as provided in §1815.
H. Employment of Apprentices
1. Where either the prime AGREEMENT or the subagreement exceeds thirty thousand dollars ($30,000), the CONSULTANT and any subconsultants under him or her shall comply with all applicable requirements of Labor Code §§ 1777.5, 1777.6 and 1777.7 in the employment of apprentices.
2. CONSULTANTs and subconsultants are required to comply with all Labor Code requirements regarding the employment of apprentices, including mandatory ratios of journey level to apprentice workers. Prior to commencement of work, CONSULTANT and subconsultants are advised to contact the DIR Division of Apprenticeship Standards website at https://www.dir.ca.gov/das/, for additional information regarding the employment of apprentices and for the specific journey -to- apprentice ratios for the AGREEMENT work. The CONSULTANT is responsible for all subconsultants’ compliance with these requirements. Penalties are specified in Labor Code §1777.7.
ARTICLE XIII CONFLICT OF INTEREST
A. During the term of this AGREEMENT, the CONSULTANT shall disclose any financial, business, or other relationship with LOCAL AGENCY that may have an impact upon the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project. The CONSULTANT shall also list current clients who may have a financial interest in the outcome of this AGREEMENT or any ensuing LOCAL AGENCY construction project which will follow.
B. CONSULTANT certifies that it has disclosed to LOCAL AGENCY any actual, apparent, or potential conflicts of interest that may exist relative to the services to be provided pursuant to this AGREEMENT. CONSULTANT agrees to advise LOCAL AGENCY of any actual, apparent or potential conflicts of interest that may develop subsequent to the date of execution of this AGREEMENT.
CONSULTANT further agrees to complete any statements of economic interest if required by either LOCAL AGENCY ordinance or State law.
C. The CONSULTANT hereby certifies that it does not now have, nor shall it acquire any financial or business interest that would conflict with the
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performance of services under this AGREEMENT.
D. The CONSULTANT hereby certifies that the CONSULTANT or subconsultant and any firm affiliated with the CONSULTANT or subconsultant that bids on any construction contract or on any Agreement to provide construction inspection for any construction project res ulting from this AGREEMENT, has established necessary controls to ensure a conflict of interest does not exist.
An affiliated firm is one, which is subject to the control of the same persons, through joint ownership or otherwise.
ARTICLE XIV REBATES, KICKBACKS OR OTHER UNLAWFUL CONSIDERATION The CONSULTANT warrants that this AGREEMENT was not obtained or secured through rebates, kickbacks or other unlawful consideration either promised or paid to any LOCAL AGENCY employee. For breach or violation of this warranty, LOCAL AGENCY shall have the right, in its discretion, to terminate this AGREEMENT without liability, to pay only for the value of the work actually performed, or to deduct from this AGREEMENT price or otherwise recover the full amount of such rebate, kickback or other unlawful consideration.
ARTICLE XV PROHIBITION OF EXPENDING LOCAL AGENCY, STATE, OR
FEDERAL FUNDS FOR LOBBYING
A. The CONSULTANT certifies, to the best of his or her knowledge and belief, that:
1. No State, Federal, or LOCAL AGENCY appropriated funds have been paid or will be paid, by or on behalf of the CONSULTANT, to any person for influencing or attempting to influence an officer or employee of any local, State, or Federal agency, a Member of the State Legislature or United States Congress, an officer or employee of the Legislature or Congress, or any employee of a Member of the Legislature or Congress in connection with the awarding or making of this AGREEMENT, or with the extension, continuation, renewal, amendment, or modification of this AGREEMENT.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this AGREEMENT, the CONSULTANT shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
B. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. §135 2. Any person who fails to file the required certification shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than one hundred thousand dollars
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($100,000) for each such failure.
C. The CONSULTANT also agrees by signing this document that he or she shall require that the language of this certification be included in all lower tier subagreements, which exceed one hundred thousand dollars ($100,000), and that all such subrecipients shall certify and disclose accordingly.
ARTICLE XVI NON -DISCRIMINATION CLAUSE AND STATEMENT OF
COMPLIANCE
A. The CONSULTANT’s signature affixed herein and dated shall constitute a certification under penalty of perjury under the laws of the State of California that the CONSULTANT has, unless exempt, complied with the nondiscrimination program requirements of Gov. Code §12990 and 2 CCR § 8103.
B. During the performance of this AGREEMENT, CONSULTANT and its subconsultants shall not deny the AGREEMENT’s benefits to any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condi tion, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they unlawfully discriminate, harass, or allow harassment against any employee or applicant for e mployment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. CONSULTANT and subconsultants shall insure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment.
C. CONSULTANT and subconsultants shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12990 et seq.), the applicable regulations promulgated there under (2 CCR §11000 et seq.), the provisions of Gov. Code §§11135-11139.5, and the regulations or standards adopted by LOCAL AGENCY to implement such article. The applicable regulations of the Fair Employment and Housing Commission implementing Gov. Code §12990 (a-f), set forth 2 CCR §§8100 -8504, are incorporated into this AGREEMENT by reference and made a part hereof as if set forth in full.
D. CONSULTANT shall permit access by representatives of the Department of Fair Employment and Housing and the LOCAL AGENCY upon reasonable notice at any time during the normal business hours, but in no case less than twenty- four (24) hours’ notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or LOCAL AGENCY shall require to ascertain compliance with this clause.
E. CONSULTANT and its subconsultants shall give written notice of their
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obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement.
F. CONSULTANT shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this AGREEMENT.
G. The CONSULTANT, with regard to the work performed under this AGREEMENT, shall act in accordance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.). Title VI provides that the recipients of federal assistance will implement and maintain a policy of nondiscrimination in which no person in the United States shall, on the basis of race, color, national origin, religion, sex, age, disability, be excluded from participation in, denied the benefits of or subject to discrimination under any program or activity by the recipients of federal assistance or their assignees and successors in interest.
H. The CONSULTANT shall comply with regulations relative to non-discrimination in federally-assisted programs of the U.S. Department of Transportation (49 CFR 21 - Effectuation of Title VI of the Civil Rights Act of 1964). Specifically, the CONSULTANT shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR §21.5, including employment practices and the selection and retention of Subconsultants.
I. CONSULTANT, subrecipient or subconsultant will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the LOCAL AGENCY components of the DBE Program Plan, CONSULTANT, subrecipient or subconsultant will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
ARTICLE XVII DEBARMENT AND SUSPENSION CERTIFICATION
A. The CONSULTANT’s signature affixed herein shall constitute a certification under penalty of perjury under the laws of the State of California, that the CONSULTANT or any person associated therewith in the capacity of owner, partner, director, officer or manager:
1. Is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency;
2. Has not been suspended, debarred, voluntarily excluded, or determined ineligible by any federal agency within the past three (3) years;
3. Does not have a proposed debarment pending; and
4. Has not been indicted, convicted, or had a civil judgment rendered
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against it by a court of competent jurisdiction in any matter involving fraud or official misconduct within the past three (3) years.
B. Any exceptions to this certification must be disclosed to LOCAL AGENCY.
Exceptions will not necessarily result in denial of recommendation for award, but will be considered in determining responsibility. Disclosures must indicate the party to whom the exceptions apply, the initiating agency, and the dates of agency action.
C. Exceptions to the Federal Government excluded parties (https://sam.gov/content/home) maintained by the U.S. General Services Administration are to be determined by FHWA.
ARTICLE XVIII DISADVANTAGED BUSINESS ENTERPRISES (DBE)
PARTICIPATION
A. CONSULTANT, subrecipient (LOCAL AGENCY), or subconsultant shall take necessary and reasonable steps to ensure that DBEs have opportunities to participate in the contract (49 CFR 26). To ensure equal participation of DBEs provided in 49 CFR 26.5, the LOCAL AGENCY shows a contract goal for DBEs.
CONSULTANT shall make work available to DBEs and select work parts consistent with available DBE subconsultants and suppliers.
CONSULTANT shall meet the DBE goal shown elsewhere in these special provisions or demonstrate that they made adequate Good Faith Efforts (GFE) to meet this goal. It is CONSULTANT’s responsibility to verify at date of proposal opening that the DBE firm is certified as a DBE by using the California Unified Certification Program (CUCP) database and possesses the most specific available North American Industry Classification System (NAICS) codes and work code applicable to the type of work the firm will perform on the contract. Additionally, the CONSULTANT is responsible to document the verification record by printing out the CUCP data for each DBE firm. A list of DBEs certified by the CUCP can be found at https://dot.ca.gov/programs/civil- rights/dbe-search.
All DBE participation will count toward the California Department of Transportation’s federally mandated statewide overall DBE goal. Credit for materials or supplies CONSULTANT purchases from DBEs counts towards the goal in the following manner:
• 100 percent counts if the materials or supplies are obtained from a DBE manufacturer.
• 60 percent counts if the materials or supplies are purchased from a DBE regular dealer.
• Only fees, commissions, and charges for assistance in the procurement and delivery of materials or supplies count if obtained from a DBE that
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is neither a manufacturer nor regular dealer. 49 CFR 26.55 defines "manufacturer" and "regular dealer."
This AGREEMENT is subject to 49 CFR 26 entitled “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs”. CONSULTANTs who enter into a federally -funded agreement will assist the LOCAL AGENCY in a g ood faith effort to achieve California's statewide overall DBE goal.
B. The goal for DBE participation for this AGREEMENT is 22 %. Participation by DBE CONSULTANT or subconsultants shall be in accordance with information contained in Exhibit 10- O2: Consultant Contract DBE Commitment attached hereto and incorporated as part of the AGREEMENT. If a DBE subconsultant is unable to perform, CONSULTANT must make a good faith effort to replace him/her with another DBE subconsultant, if the goal is not otherwise met.
C. CONSULTANT can meet the DBE participation goal by either documenting commitments to DBEs to meet the AGREEMENT goal, or by documenting adequate good faith efforts to meet the AGREEMENT goal. An adequate good faith effort means that the CONSULTANT must show that it took all necessary and reasonable steps to achieve a DBE goal that, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to meet the DBE goal. If CONSULTANT has not met the DBE goal, complete and submit Exhibit 15-H: Proposer/Contractor Good Faith Efforts to document efforts to meet the goal. Refer to 49 CFR 26 for guidance regarding evaluation of good faith efforts to meet the DBE goal.
D. Contract Assurance
Under 49 CFR 26.13(b):
CONSULTANT, subrecipient or subconsultant shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract.
CONSULTANT shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts.
Failure by the CONSULTANT to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying CONSULTANT from future proposing as non-responsible
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E. Termination and Replacement of DBE Subconsultants
CONSULTANT shall utilize the specific DBEs listed to perform the work and supply the materials for which each is listed unless CONSULTANT or DBE subconsultant obtains the LOCAL AGENCY’s written consent. CONSULTANT shall not terminate or replace a listed DB E for convenience and perform the work with their own forces or obtain materials from other sources without authorization from the LOCAL AGENCY. Unless the LOCAL AGENCY’s consent is provided, the CONSULTANT shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE on the Exhibit 10-02: Consultant Contract DBE Commitment form.
Termination of DBE Subconsultants
After execution of the AGREEMENT, termination of a DBE may be allowed for the following, but not limited to, justifiable reasons with prior written authorization from the LOCAL AGENCY:
1. Listed DBE fails or refuses to execute a written contract based on plans and specifications for the project.
2. The LOCAL AGENCY stipulated that a bond is a condition of executing the subcontract and the listed DBE fails to meet the LOCAL AGENCY’s bond requirements.
3. Work requires a consultant's license and listed DBE does not have a valid license under Contractors License Law.
4. Listed DBE fails or refuses to perform the work or furnish the listed materials (failing or refusing to perform is not an allowable reason to remove a DBE if the failure or refusal is a result of bad faith or discrimination).
5. Listed DBE's work is unsatisfactory and not in compliance with the contract.
6. Listed DBE is ineligible to work on the project because of suspension or debarment.
7. Listed DBE becomes bankrupt or insolvent or exhibits credit unworthiness.
8. Listed DBE voluntarily withdraws with written notice from the Contract.
9. Listed DBE is ineligible to receive credit for the type of work required.
10. Listed DBE owner dies or becomes disabled resulting in the inability to perform the work on the Contract.
11. The LOCAL AGENCY determines other documented good cause.
CONSULTANT must use the following procedures to request the termination of a DBE or portion of a DBE’s work:
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1. Send a written notice to the DBE of the CONSULTANT’s intent to use other forces or material sources and include one or more justifiable reasons listed above. Simultaneously send a copy of this written notice to the LOCAL AGENCY. The written notice to the DBE must request they provide any response within five (5) business days to both the CONSULTANT and the LOCAL AGENCY by either acknowledging their agreement or documenting their reasoning as to why the use of other forces or sources of materials should not occur.
2. If the DBE does not respond within five (5) business days, CONSULTANT may move forward with the request as if the DBE had agreed to CONSULTANT’s written notice.
3. Submit CONSULTANT’s DBE termination request by written letter to the LOCAL AGENCY and include:
• One or more above listed justifiable reasons along with supporting documentation.
• CONSULTANT’s written notice to the DBE regarding the request, including proof of transmission and tracking documentation of CONSULTANT’s written notice
• The DBE's response to CONSULTANT’s written notice, if received.
If a written response was not provided, provide a statement to that effect.
The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE termination request within five (5) business days.
Replacement of DBE Subconsultants
After receiving the LOCAL AGENCY’s written authorization of DBE termination request, CONSULTANT must obtain the LOCAL AGENCY’s written agreement for DBE replacement. CONSULTANT must find or demonstrate GFEs to find qualified DBE replacement firms to perform the work to the extent needed to meet the DBE commitment.
The following procedures shall be followed to request authorization to replace a DBE firm:
1. Submit a request to replace a DBE with other forces or material sources in writing to the LOCAL AGENCY which must include:
a. Description of remaining uncommitted work item made available for replacement DBE solicitation and participation.
b. The proposed DBE replacement firm's business information, the work they have agreed to perform, and the following:
• Description of scope of work and cost proposal
• Proposed subcontract agreement and written confirmation
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of agreement to perform on the Contract
• Revised Exhibit 10-O2: Consultant Contract DBE Commitment
2. If CONSULTANT has not identified a DBE replacement firm, submits documentation of CONSULTANT’s GFEs to use DBE replacement firms within seven (7) days of LOCAL AGENCY's authorization to terminate the DBE. CONSULTANT may request the LOCAL AGENCY's approval to extend this submittal period to a total of 14 days. Submit documentation of actions taken to find a DBE replacement firm, such as:
• Search results of certified DBEs available to perform the original DBE work identified and or other work CONSULTANT had intended to self-perform, to the extent needed to meet DBE commitment
• Solicitations of DBEs for performance of work identified • Correspondence with interested DBEs that may have
included contract details and requirements
• Negotiation efforts with DBEs that reflect why an agreement was not reached
• If a DBE's quote was rejected, provide reasoning for the rejection, such as why the DBE was unqualified for the work, or why the price quote was unreasonable or excessive
• Copies of each DBE's and non- DBE's price quotes for work identified, as the LOCAL AGENCY may contact the firms to verify solicitation efforts and determine if the DBE quotes are substantially higher
• Additional documentation that supports CONSULTANT’s GFE The LOCAL AGENCY shall respond in writing to CONSULTANT’s DBE replacement request within five (5) business days.
F. Commitment and Utilization
The LOCAL AGENCY’s DBE program must include a monitoring and enforcement mechanism to ensure that DBE commitments reconcile to DBE utilization.
The LOCAL AGENCY shall request CONSULTANT to:
1. Notify the LOCAL AGENCY’s contract administrator or designated representative of any changes to its anticipated DBE participation
2. Provide this notification before starting the affected work
3. Maintain records including:
• Name and business address of each 1st-tier subconsultant • Name and business address of each DBE subconsultant, DBE vendor, and DBE trucking company, regardless of tier
• Date of payment and total amount paid to each business (see
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Exhibit 9-F: Monthly Disadvantaged Business Enterprise Payment) If CONSULTANT is a DBE CONSULTANT, they shall include the date of work performed by their own forces and the corresponding value of the work.
If a DBE is decertified before completing its work, the DBE must notify CONSULTANT in writing of the decertification date. If a business becomes a certified DBE before completing its work, the business must notify CONSULTANT in writing of the certification date. CONSULTANT shall submit the notifications to the LOCAL AGENCY. On work completion, CONSULTANT shall complete Exhibit 17-O: Disadvantaged Business Enterprises (DBE) Certification Status Change and submit the form to the LOCAL AGENCY within 30 days of contract acceptance.
Upon work completion, CONSULTANT shall complete Exhibit 17-F: Final Report – Utilization of Disadvantaged Business Enterprises (DBE), First -Tier Subcontractors and submit it to the LOCAL AGENCY within 90 days of contract acceptance. The LOCAL AGENCY will withhold $10,000 until the form is submitted. The LOCAL AGENCY will release the withhold upon submission of the completed form.
In the LOCAL AGENCY’s reports of DBE participation to Caltrans, the LOCAL AGENCY must display both commitments and attainments.
G. Commercially Useful Function
DBEs must perform a commercially useful function (CUF) under 49 CFR 26.55 when performing work or supplying materials listed on the DBE Commitment form. The DBE value of work will only count toward the DBE commitment if the DBE performs a CUF. A DBE performs a CUF when it is responsible for execution of the work of the AGREEMENT and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a CUF, the DBE must also be responsible, with respect to materials and supplies used on the AGREEMENT, for negotiating price, determining quality and quantity, ordering the material and installing (where applicable), and paying for the material itself.
CONSULTANT must perform CUF evaluation for each DBE working on a federal- aid contract, with or without a DBE goal. Perform a CUF evaluation at the beginning of the DBE’s work and continue to monitor the performance of CUF for the duration of the project.
CONSULTANT must provide written notification to the LOCAL AGENCY at least 15 days in advance of each DBE's initial performance of work or supplying materials for the Contract. The notification must include the DBE's name, work the DBE will perform on the contract, and the location, date, and time of where their work will take place.
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Within 10 days of a DBE initially performing work or supplying materials on the Contract, CONSULTANT shall submit to the LPA the initial evaluation and validation of DBE performance of a CUF using the LAPM 9 -J: Disadvantaged Business Enterprise Commerciall y Useful Function Evaluation. Include the following information with the submittal:
• Subcontract agreement with the DBE
• Purchase orders
• Bills of lading
• Invoices
• Proof of payment
CONSULTANT must monitor all DBE’s performance of CUF by conducting quarterly evaluations and validations throughout their duration of work on the Contract using the LAPM 9 -J: DBE Commercially Useful Function Evaluation.
CONSULTANT must submit to the LOCAL AGENCY these quarterly evaluations and validations by the 5th of the month for the previous three months of work.
CONSULTANT must notify the LOCAL AGENCY immediately if they believe the DBE may not be performing a CUF.
The LOCAL AGENCY will verify DBEs performance of CUF by reviewing the initial and quarterly submissions of LAPM 9 -J: DBE Commercially Useful Function Evaluation, submitted supporting information, field observations, and through any additional LOCAL AGENCY evaluations. The LOCAL AGENCY must evaluate DBEs and their CUF performance throughout the duration of a Contract. The LOCAL AGENCY will provide written notice to the CONSULTANT and the DBE at least two (2) business days prior to any evaluation. The CONSULTANT and the DBE must participate in the evaluation. Upon completing the evaluation, the LOCAL AGENCY must share the evaluation results with the CONSULTANT and the DBE. An evaluation could include items that must be remedied upon receipt.
If the LOCAL AGENCY determines the DBE is not performing a CUF, the CONSULTANT must suspend performance of the noncompliant work.
CONSULTANT and DBEs must submit any additional CUF related records and documents within five (5) business days of LOCAL AGENCY’s request such as:
• Proof of ownership or lease and rental agreements for equipment • Tax records
• Employee rosters
• Certified payroll records
• Inventory rosters
Failure to submit required DBE Commercially Useful Function Evaluation forms or requested records and documents can result in withholding of payment for the value of work completed by the DBE.
If CONSULTANT and/or the LOCAL AGENCY determine that a listed DBE is not performing a CUF in performance of their DBE committed work, CONSULTANT
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must immediately suspend performance of the noncompliant portion of the work. LOCAL AGENCY may deny payment for the noncompliant portion of the work. LOCAL AGENCY will ask the CONSULTANT to submit a corrective action plan (CAP) to the LOCAL AGENGY within five (5) days of the noncompliant CUF determination. The CAP must identify how the CONSULTANT will correct the noncompliance findings for the remaining portion of the DBE's work. LOCAL AGENCY has five (5) days to review the CAP in conjunction with the CONSULTANT’s review. The CONSULTANT must implement the CAP within five (5) days of the LOCAL AGENCY's approval. The LOCAL AGENCY will then authorize the prior noncompliant portion of work for the DBE's committed work.
If corrective actions cannot be accomplished to ensure the DBE performs a commercially useful function on the Contract, CONSULTANT may have good cause to request termination of the DBE.
H. A DBE does not perform a CUF if its role is limited to that of an extra participant in a transaction, AGREEMENT, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, examine similar transactions, particularly those in which DBEs do not participate.
I. If a DBE does not perform or exercise responsibility for at least thirty percent (30%) of the total cost of its AGREEMENT with its own work force, or the DBE subcontracts a greater portion of the work of the AGREEMENT than would be expected on the basis of normal industry practice for the type of work involved, it will be presumed that it is not performing a CUF.
J. CONSULTANT shall maintain records of materials purchased or supplied from all subcontracts entered into with certified DBEs. The records shall show the name and business address of each DBE or vendor and the total dollar amount actually paid each DBE or ve ndor, regardless of tier. The records shall show the date of payment and the total dollar figure paid to all firms. DBE CONSULTANT’s shall also show the date of work performed by their own forces along with the corresponding dollar value of the work.
K. If a DBE subconsultant is decertified during the life of the AGREEMENT, the decertified subconsultant shall notify CONSULTANT in writing with the date of decertification. If a subconsultant becomes a certified DBE during the life of the AGREEMENT, the subconsultant shall notify CONSULTANT in writing with the date of certification. Any changes should be reported to the LOCAL AGENCY’s Contract Administrator within thirty (30) calendar days.
L. For projects awarded on or after March 1, 2020, but before September 1, 2023: after submitting an invoice for reimbursement that includes a payment to a DBE, but no later than the 10th of the following month, the prime contractor/consultant must complete and email Exhibit 9 -F: Disadvantaged Business Enterprise Running Tally of Payments to
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[email protected] with a copy to local administering agencies.
For projects awarded on or after September 1, 2023: Exhibit 9-F is no longer required. Instead, by the 15th of the month following the month of any payment(s), the CONSULTANT must now submit Exhibit 9 -P to the LOCAL AGENCY administering the contract. If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
M. Any subcontract entered into as a result of this AGREEMENT shall contain all of the provisions of this section.
ARTICLE XIX INSURANCE – NOT USED
ARTICLE XX FUNDING REQUIREMENTS
A. It is mutually understood between the parties that this AGREEMENT may have been written before ascertaining the availability of funds or appropriation of funds, for the mutual benefit of both parties, in order to avoid program and fiscal delays that would occur if the AGREEMENT were executed after that determination was made.
B. This AGREEMENT is valid and enforceable only if sufficient funds are made available to LOCAL AGENCY for the purpose of this AGREEMENT. In addition, this AGREEMENT is subject to any additional restrictions, limitations, conditions, or any statute enacted by the Congress, State Legislature, or LOCAL AGENCY governing board that may affect the provisions, terms, or funding of this AGREEMENT in any manner.
C. It is mutually agreed that if sufficient funds are not appropriated, this AGREEMENT may be amended to reflect any reduction in funds.
D. LOCAL AGENCY has the option to terminate the AGREEMENT pursuant to Article VI Termination, or by mutual agreement to amend the AGREEMENT to reflect any reduction of funds.
ARTICLE XXI CHANGE IN TERMS
A. This AGREEMENT may be amended or modified only by mutual written agreement of the parties.
B. CONSULTANT shall only commence work covered by an amendment after the amendment is executed and notification to proceed has been provided by LOCAL AGENCY’s Contract Administrator.
C. There shall be no change in CONSULTANT’s Project Manager or members of the project team, as listed in the approved Cost Proposal, which is a part of this AGREEMENT without prior written approval by LOCAL AGENCY’s Contract
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Administrator.
ARTICLE XXII CONTINGENT FEE
CONSULTANT warrants, by execution of this AGREEMENT that no person or selling agency has been employed, or retained, to solicit or secure this AGREEMENT upon an agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepti ng bona fide employees, or bona fide established commercial or selling agencies maintained by CONSULTANT for the purpose of securing business. For breach or violation of this warranty, LOCAL AGENCY has the right to annul this AGREEMENT without liability; pay only for the value of the work actually performed, or in its discretion to deduct from the AGREEMENT price or consideration, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.
ARTICLE XXIII DISPUTES
Prior to either party commencing any legal action under this AGREEMENT, the parties agree to try in good faith, to settle any dispute amicably between them. If a dispute has not been settled after forty-five (45) days of good-faith negotiations and as may be otherwise provided herein, then either party may commence legal action against the other.
A. Any dispute, other than audit, concerning a question of fact arising under this AGREEMENT that is not disposed of by agreement shall be decided by a committee consisting of LOCAL AGENCY’s Contract Administrator and the Director of Public Works , who may consider written or verbal information submitted by CONSULTANT.
B. Not later than thirty (30) calendar days after completion of all deliverables necessary to complete the plans, specifications and estimate, CONSULTANT may request review by LOCAL AGENCY Governing Board of unresolved claims or disputes, other than audit. The request for review will be submitted in writing.
C. Neither the pendency of a dispute, nor its consideration by the committee will excuse CONSULTANT from full and timely performance in accordance with the terms of this AGREEMENT.
ARTICLE XXIV INSPECTION OF WORK
CONSULTANT and any subconsultant shall permit LOCAL AGENCY, the State, and the FHWA if federal participating funds are used in this AGREEMENT; to review and inspect the project activities and files at all reasonable times during the performance period of this AGREEMENT.
ARTICLE XXV SAFETY
A. CONSULTANT shall comply with OSHA regulations applicable to CONSULTANT regarding necessary safety equipment or procedures. CONSULTANT shall
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comply with safety instructions issued by LOCAL AGENCY Safety Officer and other LOCAL AGENCY representatives. CONSULTANT personnel shall wear hard hats and safety vests at all times while working on the construction project site.
B. Pursuant to the authority contained in Vehicle Code §591, LOCAL AGENCY has determined that such areas are within the limits of the project and are open to public traffic. CONSULTANT shall comply with all of the requirements set forth in Divisions 11, 12, 1 3, 14, and 15 of the Vehicle Code. CONSULTANT shall take all reasonably necessary precautions for safe operation of its vehicles and the protection of the traveling public from injury and damage from such vehicles.
C. Any subcontract entered into as a result of this contract, shall contain all of the provisions of this Article.
D. CONSULTANT must have a Division of Occupational Safety and Health (CAL- OSHA) permit(s), as outlined in Labor Code §6500 and §6705, prior to the initiation of any practices, work, method, operation, or process related to the construction or excavation of trenches which are five (5) feet or deeper.
ARTICLE XXVI OWNERSHIP OF DATA
A. It is mutually agreed that all materials prepared by CONSULTANT under this AGREEMENT shall become the property of City, and CONSULTANT shall have no property right therein whatsoever. Immediately upon termination, City shall be entitled to, and CONSULTANT shall deliver to City, reports, investigations, appraisals, inventories, studies, analyses, drawings and data estimates performed to that date, whether completed or not, and other such materials as may have been prepared or accumulated to date by CONSULTANT in performing this AGREEMENT which is not CONSULTANT’s privileged information, as defined by law, or CONSULTANT’s personnel information, along with all other property belonging exclusively to City which is in CONSULTANT’s possession. Publication of the i nformation derived from work performed or data obtained in connection with services rendered under this AGREEMENT must be approved in writing by City.
B. Additionally, it is agreed that the Parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by CONSULTANT hereunder to be work made for hire. CONSULTANT acknowledges and agrees that the work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City without restriction or limitation upon its use or dissemination by City.
C. Nothing herein shall constitute or be construed to be any representation by CONSULTANT that the work product is suitable in any way for any other project except the one detailed in this Contract. Any reuse by City for another
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project or project location shall be at City’s sole risk.
D. Applicable patent rights provisions regarding rights to inventions shall be included in the contracts as appropriate (48 CFR 27 Subpart 27.3 - Patent Rights under Government Contracts for federal- aid contracts).
E. LOCAL AGENCY may permit copyrighting reports or other agreement products. If copyrights are permitted; the AGREEMENT shall provide that the FHWA shall have the royalty -free nonexclusive and irrevocable right to reproduce, publish, or otherwise use; and to authorize others to use, the work for government purposes.
ARTICLE XXVII CLAIMS FILED BY LOCAL AGENCY’s CONSTRUCTION
CONTRACTOR
A. If claims are filed by LOCAL AGENCY’s construction contractor relating to work performed by CONSULTANT’s personnel, and additional information or assistance from CONSULTANT’s personnel is required in order to evaluate or defend against such claims; CONSULT ANT agrees to make its personnel available for consultation with LOCAL AGENCY’S construction contract administration and legal staff and for testimony, if necessary, at depositions and at trial or arbitration proceedings.
B. CONSULTANT’s personnel that LOCAL AGENCY considers essential to assist in defending against construction contractor claims will be made available on reasonable notice from LOCAL AGENCY. Consultation or testimony will be reimbursed at the same rates, including travel costs that are being paid for CONSULTANT’s personnel services under this AGREEMENT.
C. Services of CONSULTANT’s personnel in connection with LOCAL AGENCY’s construction contractor claims will be performed pursuant to a written contract amendment, if necessary, extending the termination date of this AGREEMENT in order to resolve the construction claims.
ARTICLE XXVIII CONFIDENTIALITY OF DATA
A. All financial, statistical, personal, technical, or other data and information relative to LOCAL AGENCY’s operations, which are designated confidential by LOCAL AGENCY and made available to CONSULTANT in order to carry out this AGREEMENT, shall be protected by CONSULTANT from unauthorized use and disclosure.
B. Permission to disclose information on one occasion, or public hearing held by LOCAL AGENCY relating to the AGREEMENT, shall not authorize CONSULTANT to further disclose such information, or disseminate the same on any other occasion.
C. CONSULTANT shall not comment publicly to the press or any other media regarding the AGREEMENT or LOCAL AGENCY’s actions on the same, except
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to LOCAL AGENCY’s staff, CONSULTANT’s own personnel involved in the performance of this AGREEMENT, at public hearings, or in response to questions from a Legislative committee.
D. CONSULTANT shall not issue any news release or public relations item of any nature, whatsoever, regarding work performed or to be performed under this AGREEMENT without prior review of the contents thereof by LOCAL AGENCY, and receipt of LOCAL AGENCY’S written permission.
E. Any subcontract entered into as a result of this contract shall contain all of the provisions of this Article.
F. All information related to the construction estimate is confidential, and shall not be disclosed by CONSULTANT to any entity, other than LOCAL AGENCY, Caltrans, and/or FHWA. All of the materials prepared or assembled by CONSULTANT pursuant to performance o f this Contract are confidential and CONSULTANT agrees that they shall not be made available to any individual or organization without the prior written approval of City or except by court order. If CONSULTANT or any of its officers, employees, or subcontractors does voluntarily provide information in violation of this Contract, City has the right to reimbursement and indemnity from CONSULTANT for any damages caused by CONSULTANT releasing the information, including, but not limited to, City’s attorney’s fe es and disbursements, including without limitation experts’ fees and disbursements.
ARTICLE XXIX NATIONAL LABOR RELATIONS BOARD CERTIFICATION In accordance with Public Contract Code §10296, CONSULTANT hereby states under penalty of perjury that no more than one final unappealable finding of contempt of court by a federal court has been issued against CONSULTANT within the immediately preceding two-year period, because of CONSULTANT’s failure to comply with an order of a federal court that orders CONSULTANT to comply with an order of the National Labor Relations Board.
ARTICLE XXX EVALUATION OF CONSULTANT
CONSULTANT’s performance will be evaluated by LOCAL AGENCY. A copy of the evaluation will be sent to CONSULTANT for comments. The evaluation together with the comments shall be retained as part of the AGREEMENT record.
ARTICLE XXXI PROMPT PAYMENT
A. PROMPT PAYMENT FROM LOCAL AGENCY TO CONSULTANT
he LOCAL AGENCY shall make all project progress payment within 30 days after receipt of an undisputed and properly submitted payment request from CONSULTANT on a professional service contract. If the LOCAL AGENCY fails to pay promptly, the LOCAL AGENCY shall pay interest to the CONSULTANT, which accrues at the rate of 10 percent per annum on the principal amount
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of a money judgment remaining unsatisfied and pro-rated as necessary. Upon receipt of the payment request, the LOCAL AGENCY shall act in accordance with both of the following:
(1) The LOCAL AGENCY shall review each payment request as soon as feasible after receipt to verify it is a proper payment request. (2) The LOCAL AGENCY must return any payment request deemed improper by the LOCAL AGENCY to the CONSULTANT as soon as feasible, but not later than seven (7) days, after receipt. A request returned pursuant to this paragraph shall include documentation setting forth in writing the reasons why it is an improper payment request.
B. PROMPT PAYMENT CERTIFICATION
For projects awarded on or after September 1, 2023: the CONSULTANT must now submit Exhibit 9-P to the LOCAL AGENCY administering the contract by the 15th of the month following the month of any payment(s). If the CONSULTANT does not make any payments to subconsultants, supplier(s), and/or manufacturers they must report “no payments were made to subs this month” and write this visibly and legibly on Exhibit 9-P.
The LOCAL AGENCY must verify all Exhibit 9-P information, monitor compliance with prompt payment requirements for DBE and non-DBE firms, and address any shortfalls to the DBE commitment and prompt payment issues until the end of the project. The LOCAL AGEN CY must email a copy of Exhibit 9 -P to [email protected] before the end of the month after receiving the Exhibit 9-P from the CONSULTANT.
ARTICLE XXXII TITLE VI ASSURANCES
APPENDIX A
During the performance of this Agreement, the contractor, for itself, its assignees and successors in interest (hereinafter collectively referred to as CONSULTANT) agrees as follows:
a. Compliance with Regulations : CONSULTANT shall comply with the regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation, Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the REGULATIONS), which are herein incorporated by reference and made a part of this agreement.
b. Nondiscrimination: CONSULTANT, with regard to the work performed by it during the AGREEMENT, shall not discriminate on the grounds of race, color, sex, national origin, religion, age, or disability in the selection and retention of sub-applicants, including procurements of materials and leases of equipment. CONSULTANT shall not participate either directly or indirectly
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in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the agreement covers a program set forth in Appendix B of the Regulations.
c. Solicitations for Sub-agreements, Including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by CONSULTANT for work to be performed under a Sub- agreement, including procurements of materials or leases of equipment, each potential sub-applicant or supplier shall be notified b y CONSULTANT of the CONSULTANT’S obligations under this Agreement and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin.
d. Information and Reports : CONSULTANT shall provide all information and reports required by the Regulations, or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the recipient or FHWA to be pertinent to ascertain compliance with such Regulations or directives. Where any information required of CONSULTANT is in the exclusive possession of another who fails or refuses to furnish this information, CONSULTANT shall so certify to the recipient or FHWA as appropriate, and shall set forth what efforts CONSULTANT has made to obtain the information.
e. Sanctions for Noncompliance: In the event of CONSULTANT’s noncompliance with the nondiscrimination provisions of this agreement, the recipient shall impose such agreement sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:
i. withholding of payments to CONSULTANT under the Agreement within a reasonable period of time, not to exceed 90 days; and/or ii. cancellation, termination or suspension of the Agreement, in whole or in part.
f. Incorporation of Provisions: CONSULTANT shall include the provisions of paragraphs (1) through (6) in every sub- agreement, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.
CONSULTANT shall take such action with respect to any sub- agreement or procurement as the recipient or FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance, provided, however, that, in the event CONSULTANT becomes involved in, or is threatened with, litigation with a sub-applicant or supplier as a result of such direction, CONSULTANT may request the recipient enter into such litigation to protect the interests of the State, and, in addition, CONSULTANT may request the United States to enter into such litigation to protect the interests of the United States.
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APPENDIX E
During the performance of this contract, the CONSULTANT, for itself, its assignees, and successors in interest (hereinafter referred to as the “CONSULTANT”) agrees to comply with the following non-discrimination statutes and authorities, including, but not limited to:
Pertinent Non-Discrimination Authorities:
• Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), prohibits discrimination on the basis of race, color, national origin); and 49 CFR Part 21.
• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42
• U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects);
• Federal-Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 CR Part 27;
• The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), prohibits discrimination on the basis of age);
• Airport and Airway Improvement Act of 1982, (49 U.S.C. § 471, Section 47123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex);
• The Civil Rights Restoration Act of 1987, (PL 100 -209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the def inition of the terms “programs or activities” to include all of the programs or activities of the Federal -aid recipients, sub -recipients and contractors, whether such programs or activities are Federally funded or not);
• Titles II and III of the Americans with Disabilities Act, which prohibit discrimination of the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 – 12189) as implemented by Department of Transportation regulations 49 C.F.R. parts 37 and 38;
• The Federal Aviation Administration’s Non- discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex);
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• Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low- Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of Limited English Proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100);
• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C.1681 et seq).
ARTICLE XXXIII NOTIFICATION – NOT USED
ARTICLE XXXIV CONTRACT – NOT USED
ARTICLE XXXV SIGNATURES – NOT USED
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ADDENDUM “3"
BONDS
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EXHIBIT “D”
CONFLICT OF INTEREST FORM
CONSULTANT FINANCIAL DISCLOSURES
Consultant will comply with all conflict of interest laws and regulations including, without limitations, City’s Conflict of Interest Code (on file in the City Clerk’s Office). It is incumbent upon the Consultant to notify the City of any staff changes relating to this Agreement. The City Manager has made the following determination and Consultant, by his/her signature, acknowledges said determination as set out in FPPC Regulation 18701(a) 02.
A. In accomplishing the scope of services of this Agreement, all officers, employees, and/or agents of Consultant will be performing a specialized function (subject to review and approval of the City Council), and therefore, is unlikely to have a conflict of interest arise. No disclosures are required of any officers, employees, and/or agents of Consultant. Consultants duties are as follows:
__________________________________________________________________ __________
________________________________
____________________________
Brian Montgomery, City Manager Consultant Signature and Title
B. In accomplishing the scope of services of this Agreement, Consultant will be performing a specialized service for the City, and there is substantial likelihood that the Consultant may make or participate in making, a governmental decision, which may have a foreseeable material effect on a financial interest. As a result, the Consultant shall be subject to the Disclosure Category “Consultant” of the City’s Conflict of Interest Code.
________________________________
____________________________
Brian Montgomery, City Manager Consultant Signature and Title
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EXHIBIT “E”
LEVINE ACT STATEMENT
California Government Code § 84308, commonly referred to as the “Levine Act,” precludes an officer of a local governmental agency from participating in the award of a contract if he or she receives any political contributions totaling more than $500 in the 12 months preceding the pendency of the contract award, and for three months following the final decision, from the person or company awarded the contract. This prohibition applies to contributions to the officer, or received by the officer on behalf of any other officer, or on behalf of any candidate for office or on behalf of any committee.
This statement must be provided for the company and for each consultant who will work with the City.
City of Indio Council Members as of the date of this document:
Glenn Miller
Elaine Holmes
Oscar Ortiz
Waymond Ferrmon
Ben Guitron IV
1. Have you or your company, or any agent on behalf of you or your company, made any political contributions of more than $500 to any City of Indio Council Member in the 12 months preceding the date of the issuance of this RFP?____ YES NO
If so, that Council member is: ___________________
2. Do you or your company, or any agent on behalf of you or your company, anticipate or plan to make any political contributions of more than $500 to any City of Indio Council Member in the three months following the award of the
contract?____ YES NO
If so, that Council member is: ___________________
Answering yes to either of the two questions above does not preclude the City of Indio from awarding a contract to your firm. It may, however, preclude the identified Council Member from participating in the contract award process for this contract.
DATE (SIGNATURE OF CONSULTANT)
(NAME)
( NAME OF COMPANY)
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4 | P a g e
Exhibits
EXHIBIT “F”
REQUEST FOR PROPOSAL
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Exhibits
EXHIBIT “G”
CONSULTANT’S PROPOSAL
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City Council
August 20, 2025
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Jonathan Nicks, Assistant City Manager
Subject: Professional services agreement with Fieldman, Rolapp & Associates for Municipal Financial Advisory Services for 2025 series Lease Revenue Bonds and of amount exceed to not District in Bonds Facility Community a $110,000
RECOMMENDATION:
Staff recommends that the City Council authorize the City Manager to execute Professional Services Agreement in a form approved by the City Attorney with Fieldman, Rolapp & Associates in the amount of $110,000.
BACKGROUND INFORMATION:
The City’s Finance Department previously issued a request for proposal for financial advisory services to thirty-one qualified firms specializing in municipal financing and conducted a thorough review of seven proposals that were received. After the review, the City Awarded a contract to Fieldman, Rolapp & Associates (FRA) to provide financial advisory services.
FRA has nearly 60 years of experience providing independent financial advice and services. During this long tenure, Fieldman has supported many client transactions including land-based, utility, school financings, water agencies, cities, and counties. FRA is a founding member of the National Association of Municipal Advisors (NAMA), the trade association that provides education and resources for municipal advisors. FRA is also a Registered Municipal Advisor with the Securities and Exchange Commission (SEC) and the Municipal Securities Rulemaking Board (MSRB).
FRA has had a long standing relationship with the City of Indio providing professional advisement and guidance on several bond issuances. FRA has assisted with bonds for the Indio Water Authority (IWA), Indio Electric Finance Authority (IEFA), and Lease Revenue Bonds (LRBs) for capital projects such as the 2022 series bonds used towards the construction of the Public Safety Campus, City Hall, and Library facilities.
Due to the consistent quality service provided by FRA to the City and to ensure continuity, staff recommend continuing to engage with FRA for municipal financial advisory services specifically for a 2025 Lease Revenue Bond Series issuance to fund the Police Department Head Quarters and for a possible Community Facilities District (CFD) for the Pulte Desert Retreat Specific Plan. The cost for FRA services would be part of the issuance cost of the respective bonds and paid out of the bond proceeds.
AGENDA ITEM #9.25
Professional services agreement with Fieldman, Rolapp & Associates for M... Page 854 of 1094 FINANCIAL SUMMARY:
Current FY Financial
Impact:
$110,000 In current year budget: N/A
Current FY General
Fund Impact:
$0 Budget adjustment: No
Next FY Financial
Impact:
Strategic Objective: Public Infrastructure
Source of funds: Fund-Org-Object
Reference:
Additional Financial Details:
The cost for FRA services would be part of the issuance cost of the respective bonds and paid out of the bond proceeds.
ATTACHMENTS:
FRA Agreement and Proposal Pulte CFD
FRA Proposal for 2025 LRB
APPROVAL(S):
Steven Graham Pacifico, City Attorney Approved - 07 Aug 2025 Ruby D. Walla, Director of Finance Approved - 07 Aug 2025 Bryan H. Montgomery, City Manager Approved - 08 Aug 2025
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July 18, 2025
Jonathan Nicks, Assistant City Manager
City of Indio
100 Civic Center Mall
Indio, CA 92201
Dear Jonathan:
Please find enclosed our Professional Services Agreement for Municip al Advisor related to financial advisory services for the City of Indio . If everything meets your approval, please sign and return one executed copy to us.
We look forward to assisting the City with your debt issuance and financial advisory needs.
Sincerely,
FIELDMAN, ROLAPP & ASSOCIATES, INC.
James V. Fabian, CIPMA
Principal
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Contract - City of Indio 4929-5196-2199 v.2
PROFESSIONAL SERVICES AGREEMENT
FOR FINANCIAL ADVISOR
This agreement has been entered into this ______ day of ___________ 2025 by and between the City of Indio (the "City") and Fieldman, Rolapp & Associates, Inc. (herein, the "Consultant").
WHEREAS, the City desires independent financial advisory services to be performed in connection with assisting the City with formation of the Pulte CFD No. 2025- 1 (“CFD”) and future debt issuance (herein, the "Project"); and
WHEREAS, the City desires to retain the professional and technical services of the Consultant for the purpose of formation of a CFD and debt issuance, (herein, the "Services");
WHEREAS, the Consultant is well qualified to provide professional financial advice to entities such as the City;
NOW, THEREFORE, in consideration of the above recitals and the mutual covenants and conditions hereinafter set forth, it is agreed as follows:
Section 1 Financial Advisory Services.
As directed by the City , Consultant will provide services in connection with the Project as such Services are fully described in Exhibit A attached to this Agreement. Consultant is engaged in an expert financial advisory capacity to the City only. It is expressly understood that the Services rendered hereunder are rendered solely to the City of Indio. Consultant does not undertake any responsibility to review disclosure documents on behalf of owners or beneficial owners of bonds or debt which may arise from the Consultant's work hereunder.
Section 2 Additional Requested Services.
The City may request that Consultant provide additional services beyond the scope of those referenced in Section 1 above and specifically listed in Exhibit A to this Agreement. Services performed for the City by Consultant that are not otherwise specifically identified in Exhibit A to this Agreement shall be Additional Services. Additional Services include, but are not limited to, the following:
2.01 Assisting the City in obtaining enabling legislation or conducting referendum elections.
2.02 Extraordinary services and extensive computer analysis in the structuring or planning of any debt issue or financing program.
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2.03 The repeat of any element of a service described in Exhibit A to this Agreement which is made necessary through no fault of Consultant.
2.04 Financial management services, including development of financial policies, capital improvement plans, economic development planning, credit analysis or review and such other services that are not ordinarily considered within the scope of services described in Exhibit A to this Agreement.
2.05 Services rendered in connection with any undertaking of the City relating to a continuing disclosure agreement entered in order to comply with Securities and Exchange Commission Rule 15c2-12 or other similar rules.
2.06 Services rendered to the City in connection with calculations or determination of any arbitrage rebate liability to the United States of America arising from investment activities associated with debt issued to fund the Project.
Section 3 Compensation
3.01 For Consultant's performance of Services as described in this Agreement, including Additional Services requested by the City, the Consultant's compensation will be as provided in of Exhibit B attached to this Agreement,
3.02 Payment of Consultant’s expenses shall be made at the time and in the form as provided for in Exhibit B to this Agreement.
3.03 Unless otherwise specified, payment of Consultant's compensation and expenses is due thirty (30) days after submission of Consultant's invoice for services.
3.04 In the event the Services of the Consultant are abandoned prior to completion of Consultant's work, Consultant shall be compensated for Services performed to the point of abandonment as if such Services were an additional service pursuant to Section 2 of this Agreement for CFD formation services . An act of abandonment shall be deemed to have occurred when no action has been taken by the City relative to the services of the Consultant for a period of three (3) months from the date of the initial performance of a service, and there has been a written notification to the Consultant of an abandonment of the Project by the City.
3.05 The schedule of Consultant fees set forth in this Agreement and Exhibits is guaranteed by Consultant for a period of twelve (12) months from the date of this Agreement.
Section 4 Personnel.
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Consultant has, or will secure, all personnel required to perform the services under this Agreement. Consultant shall make available other qualified personnel of the firm as may be required to complete Consultant's services. The City has the right to approve or disapprove any proposed changes in Consultant's staff providing service to the City.
The City and Consultant agree that such personnel are employees only of Consultant and shall not be considered to be employees of the City in any way whatsoever.
Section 5 Term of Agreement.
This Agreement shall continue in full force and effect until the last series of Bonds is sold for any of the Improvement Areas from the date hereof unless terminated by either party by not less than thirty (30) days written notice to the other party except that the Agreement shall continue in full force and effect until completion of Consultant's services or until an abandonment shall have occurred as described in Section 3.04 hereof.
This Agreement may be extended from time to time as agreed by the City and the Consultant.
Section 6 Modification.
This Agreement contains the entire agreement of the parties. It may be amended in whole or in part from time to time by mutual consent of the parties. This shall not prohibit the City and Consultant from entering into separate agreements for other services.
Section 7 Work Products.
All work products or any form of property developed by the Consultant in providing the Services shall be provided to the City on request. Work products developed by the Consultant shall be the property of the City, provided that Consultant may use such work products developed for the City and may employ those work products to develop refinements or additional work products in the course of its business.
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Section 8 Assignment.
The rights and obligations of the City under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the City . This agreement may not be assigned by the Consultant without the consent of the City except for compensation due Consultant.
Section 9 Disclosure.
Consultant does not assume the responsibilities of the City, nor the responsibilities of the other professionals and vendors representing the City, in the provision of services and the preparation of the financing documents, including initial and secondary market disclosure, for financings undertaken by the City . Information obtained by Consultant and included in any disclosure documents is, by reason of experience, believed to be accurate; however, such information is not guaranteed by Consultant.
Section 10 Confidentiality.
The Consultant agrees that all financial, statistical, personal, technical and other data and information designated by the City as confidential shall be protected by the Consultant from unauthorized use or disclosure. The City acknowledges that the Consultant is required to comply with applicable laws governing disclosure of public information.
Section 11 Indemnification.
The City and Consultant shall each indemnify and hold harmless the other from and against any and all losses, claims, damages, expenses, including legal fees for defense, or liabilities, collectively, damages, to which either may be subjected by reason of the other's acts, errors or omissions, except however, neither will indemnify the other from or against damages by reason of changed events and conditions beyond the control of either or errors of judgment reasonably made.
Section 12 Insurance.
12.01 Consultant shall maintain workers' compensation and employer’s liability insurance during the term of this Agreement.
12.02 Consultant, at its own expense, shall obtain and maintain insurance at all times during the prosecution of this contract. Such insurance must be written with a Best Guide "A"-rated or higher insurance carrier admitted to write insurance in the state where the work is located.
12.03 Insurance coverages shall not be less than the following:
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A. Workers' Compensation
1. State worker's compensation statutory benefits
2. Employer's Liability - policy limits of not less than $1,000,000.
B. Comprehensive General Liability coverage with policy limits of not less than $1,000,000 combined single limit for bodily injury and property damage and including coverage for the following:
1. Premises operations
2. Contractual liability
3. Products
4. Completed operation
C. Errors and omissions with policy limits of $2,000,000.
12.04 Certificates of insurance naming the City as an additional insured shall be submitted to the City evidencing the required coverages , limits and locations of operations to which the insurance applies, and the policies of insurance shall contain a 30 day notice of cancellation or non-renewal.
Section 13 Permits/Licenses.
The Consultant shall obtain any permits or licenses, as may be required for it to complete the services required under this Agreement.
Section 14 Binding Effect.
14.01 A waiver or indulgence by the City of a breach of any provision of this Agreement by the Consultant shall not operate or be construed as a waiver of any subsequent breach by the Consultant.
14.02 All agreements contained herein are severable and in the event any of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such invalid agreements or covenants were not contained herein, and the remaining prov isions of this Agreement shall not be affected by such determination and shall remain in full force and effect. This Agreement shall not fail because any part or any clause hereof shall be held indefinite or invalid.
14.03 Each party hereto represents and warrants that this Agreement has been duly authorized and executed by it and constitutes its valid and binding agreement, and that any governmental approvals necessary for the performance of this Agreement have been obtained.
Section 15 Conflict of Interest.
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15.01 Representations and Warranties:
A. Other than the compensation described in this Agreement, Consultant has no other interest, direct or indirect, that would interfere with or impair in any matter or degree the performance of Consultant’s obligations under this Agreement. During the term of this Agreement, Consultant will not acquire or obtain any such interest, direct or indirect. If any such interest is acquired or obtained, Consultant will immediately advise the City.
B. Consultant has not provided any gift or consideration to any officer, employee or agent of the City to obtain approval of the City to this Agreement. Neither Consultant, nor its officers or employees will provide any such gift or consideration to any officer, employee or agent of the City to influence decisions with regard the Project or Consultant’s obligations under this Agreement.
15.02 Compensation contingent on the completion of a financing or project is customary for municipal financial advisors. To the extent that compensation to the Consultant under this Agreement, specified in Exhibit B, is contingent on the issuance of debt or completion of a financing or project, a potential conflict of interest exists as Consultant would have an incentive to recommend to the City the completion of a transaction or project that might be unnecessary.
15.03 Any agreement with Applied Best Practices LLC, an affiliated entit y to Consultant, could result in a conflict of interest if the subject of such agreement conflicts with the duties of Consultant under this Agreement.
Section 16 Conflict of Interest and Other Required Disclosures.
Consultant covenants and agrees to provide to the City disclosures of material conflicts of interest and certain legal or disciplinary events required by Municipal Securities Rulemaking Board Rule G -42 (the “Disclosures”). The Disclosures, and each delivery thereof, as provided from time to time, shall be inc orporated by reference as of the date thereof into this Agreement to the same extent as if set forth herein.
The
initial Disclosures are as set forth in Exhibit C to this Agreement.
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Section 17 Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF A
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR
OTHERWISE, REGARDLESS OF WHETHER SUCH D AMAGES WERE
FORESEEABLE AND THE OTHER PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS MAY ARISE OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS, THE AGGREGATE
LIABILITY FOR EITHER PARTY TO THE OTHER FOR ANY AND ALL
CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THIS
AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY THE
CITY TO CONSULTANT HEREUNDER FOR THE SERVICES PROVIDED
UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
IN WITNESS Whereof, the parties have duly executed this Agreement as of the day and year first above set forth.
CITY OF INDIO
100 Civic Center Mall
Indio, California 92201
By: Title:
Date:
FIELDMAN, ROLAPP & ASSOCIATES, INC.
19900 MacArthur Boulevard, Suite 1100
Irvine, CA 92612
By: Title: Principal
James V. Fabian
Date: July 18, 2025
Docusign Envelope ID: FE003C73-B1E5-46BA-8FB6-62AD0882E8D1 Jonathan Nicks
Assistant City Manager
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CITY OF INDIO /FIELDMAN, ROLAPP & ASSOCIATES, INC.
Fieldman Project No. 25233 Exhibit A, Page 1
Contract - City of Indio 4929-5196-2199 v.2
EXHIBIT A
TO
PROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL ADVISOR
BY AND BETWEEN
THE CITY OF INDIO
AND
FIELDMAN, ROLAPP & ASSOCIATES, INC.
Scope of Services
A. CFD Formation Services.
1. Assist the City in the establishment of new, or review of existing Local Agency Goals and Policies to look beyond the minimum requirements of the state statute; address broader policy issues; and use the Goals and Policies as a tool to educate policymakers and stakeholders about CFDs. We often present these to the City Council at a regular meeting or study session.
2. After the Goals and Policies have been adopted or updated, we would assist City staff negotiate Development Agreement provisions related to any future CFD for services or facilities. Our experience in recent years is that Developers are trying to include into Development Agreements specific language to predetermine how the future services or facilities CFDs will be structured. In two cities recently, we found that the Development Agreements included specific CFD provisions such as:
• Total Effective Tax Rate
• Special Tax Escalator
• Use of Pay -Go special tax payments to reimburse the Developer for infrastructure
• Inclusion of Developer’s Consultant costs as eligible expenses • Developer determines who will be the lead agency to form the CFD
As the City’s Financial Advisor, we would review all CFD related terms included in a proposed Development Agreement to make sure they are consistent with the City’s Goals and Policies and do not predetermine how the CFD will be structured in the future. If no Development Agreement is required or if the Development Agreement has been signed, we will skip this step.
3. Facilitate a required discussion of the business deal with the Developer formalized in the Acquisition Agreement to determine how to structure the CFD.
It is our preference to develop a term sheet to outline the structuring issues for the CFD. The term sheet is then used to assist Bond Counsel in drafting the legal documents. We would assist in the development, review and finalization of a Deposit and Reimbursement Agreement to ensure all formation expenses are paid for by the Developer out of an up-front deposit.
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Contract - City of Indio 4929-5196-2199 v.2
4. We would develop a schedule to guide the City through the formation process to establish the CFD and to sell Bonds. We would need City staff, Bond Counsel, and the Developer’s input before the schedule could be finalized.
5. We would schedule a kick -off meeting with the financing team to review the project, term sheet, and draft schedule. It is our recommendation to conduct an in-person kick-off meeting and to schedule follow -up conference calls with the financing team on a s et day and time every three weeks. We would prepare conference call e -mail notices, conference call agendas and document follow - up action items.
6. In conjunction with City staff, and Bond Counsel we would review the Rate and Method of Apportionment (RMA) and Special Tax Pro- Forma prepared by the Special Tax Consultant for each Improvement Area. We would assist in the negotiations with the Developer to refine the RMA and Pro-forma into final form for Council approval and the vote of the property owner.
7. We would review all legal documents prepared by Bond Counsel related to the Resolutions of Intention to establish the CFD and the Resolutions of Formation to form the CFD and approve the CFD report for each Improvement Area . We would review the CFD Boundary Map, CFD ballots and Notice of Special Tax Liens for each Improvement Area.
B. Transaction Services.
The Consultant shall assume primary responsibility for assisting the City in coordinating the planning and execution of each debt issue relating to the Project. Insofar as the Consultant is providing Services which are rendered only to the City , the overall coordination of the financing shall be such as to minimize the costs of the transaction coincident with maximizing the City's financing flexibility and capital market access. The Consultant's proposed debt issuance Services may include, but shall not be limited to, the following:
• Develop the Financing Schedule
• Monitor the Transaction Process
• Review the Official Statement, both preliminary and final • Procure and Coordinate Additional Service Providers
• Provide Financial Advice to the City Related to Financing Documents • Compute Sizing and Design Structure of the Debt Issue • Conduct Market Analysis and Evaluate Timing of Market Entry • Recommend Award of Debt Issuance
• Provide Pre-Closing and Closing Assistance
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Contract - City of Indio 4929-5196-2199 v.2
Specifically, Consultant will:
1. Develop the Financing Timetable.
The Consultant shall take the lead role in preparing a schedule and detailed description of the interconnected responsibilities of each team member and update this schedule, with refinements, as necessary, as the work progresses.
2. Monitor the Transaction Process.
The Consultant shall have primary responsibility for the successful implementation of the financing strategy and timetable that is adopted for each debt issue relating to the Project. The Consultant shall coordinate (and assist, where appropriate) in the preparation of the legal and disclosure documents and shall monitor the progress of all activities leading to the sale of debt. The Consultant shall prepare the timetables and work schedules necessary to achieve this end in a timely, efficient and cost -effective manner and will coordinate and monitor the activities of all parties engaged in the financing transaction.
3. Review the Official Statement.
The Consultant shall review the official statement for each debt issue relating to the Project to insure that the City 's official statement is compiled in a manner consistent with industry standards.
4. Procure and Coordinate Additional Service Providers.
Should the City desire, the Consultant may act as City ’s representative in procuring the services of financial printers for the official statement and related documents, and for the printing of any securities. In addition, the Consultant may act as the City's representative in procuring the services of trustees, paying agents, fiscal agents, feasibility consultan ts, redevelopment consultants, or escrow verification agents or other professionals, if the City directs.
5. Provide Financial Advice to the City Relating to Financing Documents.
Simultaneous with the review of official statements for each debt issue relating to the Project, the Consultant shall assist the managing underwriters, bond counsel and/or other legal advisors in the drafting of the respective financing resolutions, notices and other legal documents. In this regard, the Consultant shall monitor document preparation for a consistent and accurate presentation of the recommended business terms and financing structure of each debt issue relating to the Project, it being specif ically understood however that the Consultant’s services shall in no manner be construed as the Consultant engaging in the practice of law.
6. Compute Sizing and Design Structure of Debt Issue.
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Fieldman Project No. 25233 Exhibit A, Page 4
Contract - City of Indio 4929-5196-2199 v.2
The Consultant shall work with the City's staff to design a financing structure for each debt issue relating to the Project that is consistent with the City's objectives, that coordinates each transaction with outstanding issues and that reflects current conditions in the capital markets.
7. Conduct Market Analysis and Evaluate Timing of Market Entry.
The Consultant shall provide regular summaries of current municipal market conditions, trends in the market and how these may favorably or unfavorably affect the City's proposed financing.
Negotiated Sales.
In the case of a negotiated sale of debt, the Consultant shall perform a thorough evaluation of market conditions preceding the negotiation of the terms of the sale of debt and will assist the City with the negotiation of final issue structure, interest rates, interest cost, reoffering terms and gross underwriting spread and provide a recommendation on acceptance or rejection of the offer to purchase the debt. This assistance and evaluation will focus on the following areas as determinants of interest cost:
• Size of financing
• Sources and uses of funds
• Terms and maturities of the debt issue
• Review of the rating in pricing of the debt issue
• Investment of debt issue proceeds
• Distribution mix among institutional and retail purchasers • Interest rate, reoffering terms and underwriting discount with comparable issues
• Redemption provisions
8. Recommend Award of Debt Issuance.
Based upon activities outlined in Task 9 above, the Consultant will recommend accepting or rejecting offers to purchase the debt issue. If the City elects to award the debt issue, the Consultant will instruct all parties and help facilitate the actions required to formally consummate the award.
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Fieldman Project No. 25233 Exhibit A, Page 5
Contract - City of Indio 4929-5196-2199 v.2
9. Provide Pre-Closing and Closing Activities.
The Consultant shall assist in arranging for the closing of each financing. The Consultant shall assist counsel in assuming responsibility for such arrangements as they are required, including arranging for or monitoring the progress of bond printing, qualification of issues for book -entry status, signing and final delivery of the securities and settlement of the costs of issuance.
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Fieldman Project No. 25233 Exhibit B, Page1
Contract - City of Indio 4929-5196-2199 v.2
EXHIBIT B
TO
PROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL ADVISOR
BY AND BETWEEN
THE CITY OF INDIO
AND
FIELDMAN, ROLAPP & ASSOCIATES, INC.
Compensation and Expenses
Transaction Based Compensation
For Services referenced in Section 1 of this Agreement, including Services performed after the ado ption by the City Council, the Consultant will be compensated as described in the table below:
Transaction Size Fees
Any Par size Per Improvement Area $50,000
Payment of compensation earned by Consultant pursuant to this Part 1 shall be contingent on, and payable at the closing of the debt issue(s) undertaken to finance the Project. The fee listed above shall increase each January 1 st beginning January 1, 2026,
by three percent (3.00%).
Hourly Compensation
For Services and Additional Services referenced in Section 1 and Section 2 of this Agreement, including Services performed prior to the adoption by City Council, the Consultant will be compensated at the then current hourly rates. The table below reflects the rates in effect as of the date of execution of this Agreement.
Personnel Hourly Rate
Executive Officer ....................................................... $427.00 Principal ..................................................................... $417.00 Executive / Senior Vice President ........................... $406.00 Vice President ........................................................... $346.00 Assistant Vice President ........................................... $319.00 Senior Associate ....................................................... $287.00 Associate .................................................................... $254.00 Analyst ........................................................................ $141.00 Administrative Assistant ........................................... $103.00
Hourly Compensation will be billed on a monthly. CFD formation services will be billed on an hourly basis. Consultant estimates a not to exceed cap of $40,000 based on CFD formation being completed by November of 2025. Invoices are due thirty (30) days from the invoice date. Invoices not paid within sixty (60) days are subject to a two percent (2.00%) late fee for every month payment is late.
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CITY OF INDIO/FIELDMAN, ROLAPP & ASSOCIATES, INC.
Fieldman Project No. 25233 Exhibit B, Page2
Contract - City of Indio 4929-5196-2199 v.2
Hourly Rates identified above shall increase by the Annual Inflation Adjustment and rounded to the nearest whole number.
Expenses
Expenses will be billed for separately and will cover, among other things, travel, lodging, subsistence, overnight courier, and conference calls . Advances made on behalf of the City for costs of preparing, printing or distributing disclosure materials or related matter whether by postal services or electronic means, may also be billed through to the City upon prior authorization. Out of pocket expenses will be capped at $4,500 per transaction.
Limiting Terms and Conditions
The fee shown above in Part 1 presumes attendance at up to 8 meetings in the City 's offices or such other location within a 25-mile radius of the City place of business as the City may designate. Preparation for, and attendance at City Council meetings on any basis other than "by appointment" may be charged at our normal hourly rates as shown in Part 2, above if the City has approved additional charges in advance.
Abandonment
If, once commenced, the services of the Consultant are terminated prior to completion of our final report for any reason, the Consultant will be compensated for professional services and reimbursed for expenses incurred through the time of receive notification of such termination at the stand ard hourly rates shown above , for CFD formation services.
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CITY OF INDIO /FIELDMAN, ROLAPP & ASSOCIATES, INC.
Exhibit C, Page 1
Fieldman Project No. 25233
Contract - City of Indio 4929-5196-2199 v.2
EXHIBIT C
TO
PROFESSIONAL SERVICES AGREEMENT FOR FINANCIAL ADVISOR
BY AND BETWEEN
THE CITY OF INDIO
AND
FIELDMAN, ROLAPP & ASSOCIATES, INC.
MSRB Rule G -42 requires that municipal advisors provide to their clients disclosures relating to all material conflicts of interest, including certain categories of potential conflicts of interest identified in Rule G -42, if applicable. With respect to all aspects of the relationship between Consultant and the City, Consultant adheres to its fiduciary duty to the City, which includes a duty of loyalty to the City in performing all municipal advisory activities for the City. The duty of loyalty obligates Consultant to deal honestly and with the utmost good faith with the City and to act in the City’s best interest without regard to any interest Consultant has or may have. Consultant has a wide range of clients so our success and profitability are not dependent on maximizing short -term revenue generated from individual recommendations to our clients but is instead dependent on long- term profitability based on a foundation of integrity, quality and adherence to our fiduciary duty. Furthermore, Consultant’s su pervisory structure provides strong safeguards against individual representatives of Consultant violating their duty due to personal interests.
Consultant makes the following representations to the City with regard to the Services:
A. Other than the compensation described in the Agreement, we have no other interest, direct or indirect, that would interfere with or impair in any matter or degree the performance of our obligations. During our work on the Services, we do not intend to acquire or obtain any such interest, direct or indirect. If any such interest is acquired or obtained, we will immediately advise the City.
B. We have not provided any gift or consideration to any officer, employee or agent of the City to either obtain the Agreement or any assignment from the City, including the Services. Neither our firm, nor its officers or employees will provide any such gift or consideration to any officer, employee or agent of the City to influence decisions with regard the Services or our obligations under the Agreement.
C. Our compensation for the Services and is contingent on the completion of the Project. While this form of compensation is customary in the market for financial services to municipal entities, this may present conflict of interest as we would have an incentive to recommend to the City the Project even if it is unnecessary or provides insufficient benefit or advise the City to increase the size of the Project. This potential conflict is mitigated by Consultant’s fiduciary duty to the City.
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CITY OF INDIO /FIELDMAN, ROLAPP & ASSOCIATES, INC.
Exhibit C, Page 2
Fieldman Project No. 25233
Contract - City of Indio 4929-5196-2199 v.2
D. The City has employed and may employ Consultant through its d/b/a Applied Best Practices (“ABP”), with regard to the performance of its continuing disclosure obligations. This relationship has the potential to result in a conflict of interest by creating an incen tive for Consultant to recommend to the City a course of action that would increase the City ’s business activity with ABP or conversely that would discourage a course of action that would decrease the City’s business activity with ABP. The conflic t is mitigated by Consultant’s fiduciary duty to the City. Moreover, if Consultant makes a recommendation that could influence the level of business with ABP, Consultant will consider alternatives to the recommendation, which will be disclosed to the City.
Information Regarding Legal Events and Disciplinary Actions
MSRB Rule G -42 requires that municipal advisors provide their clients disclosures of legal or disciplinary events material to the evaluation of the municipal advisor or the integrity of the municipal advisor’s management or advisory personnel. Consultant sets out required disclosures and related information below:
A. In 2023, the U.S. Securities and Exchange Commission (the “SEC”) accepted offers of settlement from Fieldman and a principal (the “Settlement”). Neither the firm nor the principal admitted or denied the findings described in the Settlement. For more information about the Settlement, please review the Regulatory Action Disclosure included in Fieldman’s Form MA and Form MA -I for the principal (which is cross -referenced in Form MA). There are no other legal or disciplinary events material to the Client’s evaluation of Fieldman or the integrity of Fieldman’s management or advisory personnel disclosed, or that should be disclosed, on any Form MA or Form MA -I with the SEC. There has been no other material change or addition to the legal or disciplinary event disclosures on any Form MA or MA-I filed with the SEC.
Consultant’s most recent Form MA and each most recent Form MA-I filed with the SEC are available on the SEC’s EDGAR system at:
http://www.sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0001612429
Contents of Client Brochure
The MSRB requires us to provide you with the following information: Consultant is registered as a “Municipal Advisor” pursuant to Section 15B of the Securities Exchange Act and rules and regulations adopted by the SEC and the MSRB.
The MSRB has made available on its website (www.msrb.org) a municipal advisory client brochure that describes the protections that may be provided by MSRB rules and how to file a complaint with the appropriate regulatory City.
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City Council
August 20, 2025
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Brian Tully, Chief of Police
Subject: Recognize Non-General Fund Budget Adjustment in Special Revenue Fund 245 for Fiscal Year 2026
RECOMMENDATION:
Staff recommends that the City Council approve a budget adjustment in Special Revenue Fund 245 and direct the Finance Department to make the necessary budget adjustment as reflected in the financial analysis section of the staff report.
SUMMARY:
Staff is requesting a budget adjustment in Fund 245 (National Opioid Settlements). This fund is non- General Fund and is managed by the Police Department. The Indio Police Department is proposing the adjustment to support newly-identified projects centered on encouraging well-being within the department and this adjustment is required to utilize this funding.
BACKGROUND INFORMATION:
In 2022, the City of Indio began receiving funds through California’s allocation of the National Opioid Settlement, part of a series of nationwide agreements with opioid manufacturers, distributors, and related entities. These settlements are recognized within Special Revenue Fund 245 and direct the majority and abatement opioid for governments California—to in proceeds—70% of local remediation efforts, with the intent of addressing the impacts of the opioid crisis in communities.
Indio’s share of the funding is designated for evidence-based strategies such as expanding harm- reduction programs, supporting substance use disorder treatment, increasing access to naloxone, and strengthening prevention and education initiatives. The settlement agreements also require that funds be spent in accordance with strict abatement guidelines and tracked through annual reporting to ensure transparency and measurable impact. This funding will continue for several years as several individual settlements span over 10 years.
FINANCIAL SUMMARY:
Current FY Financial
Impact:
$38,160.00 In current year budget: No
Current FY General
Fund Impact:
$0.00 Budget adjustment: Yes
Next FY Financial $0.00 Strategic Objective: Public Safety AGENDA ITEM #9.26
Recognize Non-General Fund Budget Adjustment in Special Revenue Fund 245... Page 881 of 1094 Impact:
Source of funds: Fund Balance Fund-Org-Object
Reference:
245-various
Additional Financial Details:
Staff is requesting a budget adjustment in Fund 245, a non-General Fund special revenue fund, as follows:
Increase appropriations:
Object: Description Amount
521064 Other Prof. & Tech.
Svs 20,160.00
524028 Travel & Training 18,000.00
Total $38,160.00
APPROVAL(S):
Brian Tully, Chief of Police Approved - 14 Aug 2025
Steven Graham Pacifico, City Attorney Approved - 15 Aug 2025 Ruby D. Walla, Director of Finance Approved - 15 Aug 2025 Jonathan Nicks, Assistant City Manager Approved - 15 Aug 2025
Recognize Non-General Fund Budget Adjustment in Special Revenue Fund 245... Page 882 of 1094 City of Indio
City Council
August 20, 2025
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Jonathan Nicks, Assistant City Manager
Subject: Staff and the City's municipal financial advisors will provide an overview of Community Facilities Districts and Assessment Districts
RECOMMENDATION:
Staff recommends that the City Council receive and file this report.
SUMMARY:
The purpose of this report is to provide the City Council with an overview of Community Facilities Districts (CFDs), their function, benefits, and considerations for use within our city. This information will assist the Council in making informed decisions regarding potential formation or expansion of CFDs as a mechanism for funding public services and infrastructure.
BACKGROUND INFORMATION:
Community Facilities Districts (CFDs), sometimes known as Mello-Roos districts, are special tax districts established under California Government Code Sections 53311-53368.3. CFDs allow local governments to finance the construction and maintenance of public facilities and services through special taxes levied on properties within the district. The City has formed various CFDs and issued CFD bonds in the past through consultation with Fieldman Rolapp & Associates for Municipal Advisory services and Stradling Yocca Carlson & Rauth LLP for Bond & Disclosure Counsel.
Key Features of CFDs
CFDs are formed after a public hearing and require approval by a two-thirds majority vote of property owners or registered voters within the proposed district. Once established, CFDs have the authority to issue bonds and levy special taxes to fund public improvements and services. Typical uses include public safety, parks and recreation facilities, street improvements, landscaping, street lighting, stormwater drainage, school facilities, and other infrastructure needs. Special taxes for facilities typically last for a defined term (often 20-30 years), after which they expire unless renewed through additional voter approval. Special taxes for services can be levied in perpetuity to provide a funding source for as long as services are needed. CFD revenues must be used only for the defined purposes outlined in the enabling documents, and annual reporting is required.
Benefits of CFDs
CFDs provide a reliable, ongoing source of funding to maintain and enhance public services and infrastructure. Property owners within the district pay special taxes proportional to the benefits they AGENDA ITEM #10.1
Staff and the City's municipal financial advisors will provide an overvi... Page 883 of 1094 receive. CFDs can finance a wide variety of public improvements and ongoing services. CFDs can enable new development projects by funding necessary infrastructure without impacting the general fund.
Considerations and Challenges
Special taxes increase the property tax burden on residents and developers within the district; this must be clearly communicated. The special taxes will be levied for multiple decades, which can affect property resale and owner satisfaction. Careful boundaries and benefit analysis are necessary to ensure fair distribution of costs.
Recommendations
Continue to explore CFDs as a tool for funding community infrastructure and services, particularly in new development areas. Engage in early public outreach and education to ensure transparency and community support. Conduct thorough financial and legal analysis before CFD formation. Develop clear criteria and policies guiding future CFD establishments.
Conclusion
Community Facilities Districts provide a valuable mechanism for financing critical public services and infrastructure while distributing costs equitably. With proper planning and community engagement, CFDs can support the City’s growth and service goals effectively.
APPROVAL(S):
Steven Graham Pacifico, City Attorney Approved - 07 Aug 2025 Ruby D. Walla, Director of Finance Approved - 07 Aug 2025 Bryan H. Montgomery, City Manager Approved - 08 Aug 2025
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City Council
August 20, 2025
STAFF REPORT
To: City Council
From: Steven Graham Pacifico, City Attorney
Prepared by: Steven Graham Pacifico, City Attorney
Subject: Resolution No. 10513, authorizing the Mayor to execute the Third Amendment to the City Manager Employment Agreement
RECOMMENDATION:
Approve the Third Amendment to City Manager Employment Agreement.
BACKGROUND INFORMATION:
On May 13, 2021 the City of Indio entered into an employment agreement with Bryan H.
Montgomery appointing him as City Manager. In accordance with Section 8 of the City Manager’s original agreement the City Council evaluates the City Manager’s performance on an annual basis.
On July 18, 2025, the City Council completed its most recent evaluation and determined that Mr.
Montgomery engagement, community including critical areas expectations exceeded has in leadership of city personnel, project execution, and fiscal management.
Following this positive evaluation, the City Council undertook an objective review of the City Manager’s compensation, considering multiple factors:
City Manager’s last compensation increase was two years ago in June 2023. Compensation increases provided to other city employees over the last two years, such as annual step increases, salary scale market adjustments, and COLA increases. Comparative compensation data of city managers in the Coachella Valley. An assessment of city manager salaries in comparable Inland Empire cities, considering population size, budget, organization size, and other relevant agency characteristics.
Reviewing these factors revealed that the current salary for the Indio City Manager was below nine of eleven other mid-to-large Inland Empire cities and total compensation was among the bottom third of cities in the Coachella Valley. Considering the City Manager’s performance and taking into account the unique nature of the City Manager position in Indio, an adjustment is warranted.
The proposed amendment to the City Manager’s employment agreement includes:
Extending the term of the agreement to May 12, 2027.
Salary increase of 9.83% to $335,000 effective May 13, 2025.
This increase is deemed reasonable and appropriate to retain experienced leadership, ensure continuity and stability in city management, and align compensation with market standards to maintain talent competitiveness.
AGENDA ITEM #10.2
Resolution No. 10513, authorizing the Mayor to execute the Third Amendme... Page 885 of 1094 BROWN ACT REPORT:
The Brown Act requires that before taking final action to approve changes to executive compensation, such as this amendment to the employment agreement for the City Manager, the City Council must publicly report a summary of the recommended compensation and benefits orally in open session. This ensures transparency around public salaries and executive compensation.
The following will be read aloud by the City Attorney before the City Council votes on this item:
“Before the Council considers final action on the proposed third amendment to the employment agreement for the City Manager, I am providing the required oral report and summary as mandated by Government Code Section 54953:
The term of the existing Employment Agreement is extended to May 12, 2027.
The compensation of the City Manager, last updated in 2023, shall be adjusted by 9.83% to an annual base salary of $335,000 retroactively effective May 13, 2025.”
FINANCIAL SUMMARY:
Current FY Financial
Impact:
$37,255 In current year budget: Yes
Current FY General
Fund Impact:
$20,490.25 Budget adjustment: No
Next FY Financial
Impact:
$32,835 Strategic Objective: Organizational
Excellence
Source of funds: General Fund (55%), IWA (35%),
IHA (5%), SA (5%)
Fund-Org-Object
Reference:
Various
ATTACHMENTS:
Third Amendment - City Manager Employment Agreement (ca 250806) Resolution for CM Employment Agreement Amendment (ca 250806)
APPROVAL(S):
Jonathan Nicks, Assistant City Manager Approved - 15 Aug 2025
Resolution No. 10513, authorizing the Mayor to execute the Third Amendme... Page 886 of 1094
THIRD AMENDMENT TO
CITY MANAGER EMPLOYMENT AGREEMENT
BY AND BETWEEN
THE CITY OF INDIO
AND
BRYAN MONTGOMERY
DATED: AUGUST 20, 2025
Resolution No. 10513, authorizing the Mayor to execute the Third Amendme... Page 887 of 1094 Third Amendment to City Manager Employment Agreement
THIRD AMENDMENT TO CITY MANAGER EMPLOYMENT AGREEMENT
This Third Amendment to the City Manager Employment Agreement is made and entered into as of this 20th day of August , 2025, by and between the City of Indio (“City”), a California municipal corporation and Bryan Montgomery (“City Manager”). City and City Manager are sometimes hereinafter referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City and City Manager entered into a City Manager Employment Agreement dated May 13, 2021 (“Agreement”) for the purpose of the City employing the City Manager.
B. Consistent with Section 8. of the Agreement, the City Council has evaluated the performance of the City Manager and, following the successful evaluation, the Parties desire to amend the Agreement as set forth in this Third Amendment.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the promises made and recited herein, the Parties do hereby enter into this Amendment which modifies and amends the Agreement as follows:
1. AMENDMENTS.
A. Section 2, “Term of Agreement” hereby is amended to extend the Term of the Agreement to May 12, 2027.
B. Section 6 (A), “Base Salary” of the Agreement is hereby modified and amended to increase the annual salary to $335,000, retroactively effective to May 13, 2025.
2. REMAINDER UNCHANGED. Except as specifically modified and amended in this Amendment, the Agreement remains in full force and effect and binding upon the Parties.
3. INTEGRATION. This Amendment consists of pages 1 through 3 inclusive, which constitute the entire understanding and agreement of the Parties and supersedes all negotiations or previous agreements, including written or verbal communications between the Parties with respect to all or any part of the transaction discussed in this Amendment.
4. SEVERABILITY. If any portion of this Amendment is declared invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
5. EFFECTIVE DATE. This Amendment shall not become effective until the date it has been executed by the appropriate authorities of the City and City Manager.
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6. APPLICABLE LAW. The laws of the State of California shall govern the interpretation and enforcement of this Amendment.
7. REFERENCES. All references to the Agreement include all their respective terms and provisions. All defined terms utilized in this Amendment have the same meaning as provided in the Agreement, unless expressly stated to the contrary in this Amendment. [SIGNATURE PAGE FOLLOWS]
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THIRD AMENDMENT TO CITY MANAGER EMPLOYMENT AGREEMENT
IN WITNESS WHEREOF, the Parties hereto have executed this Third Amendment to the Agreement on the date and year first written above.
CITY OF INDIO CITY MANAGER
___________________________ ___________________________ Glenn Miller, Mayor Bryan Montgomery
ATTEST:
CITY CLERK
By: ___________________________
Sabdi Sanchez, MMC
Director of City Clerk Services
APPROVED AS TO FORM:
CITY ATTORNEY
By: ____________________________
Steven Graham Pacifico
City Attorney
Resolution No. 10513, authorizing the Mayor to execute the Third Amendme... Page 890 of 1094 1 RESOLUTION NO. 10513
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO,
CALIFORNIA AUTHORIZING THE MAYOR TO EXECUTE THE THIRD
AMENDMENT TO THE CITY MANAGER EMPLOYMENT AGREEMENT
WHEREAS, effective May 13, 2021, Bryan Montgomery entered into an employment agreement with the City of Indio as its City Manager; and WHEREAS, pursuant to Section 8 of the employment agreement, the City Council evaluates the performance of the City Manager on an annual basis; and WHEREAS, Section 8 of the employment agreement further provides that following the City Council’s performance evaluation, the City Council may consider cost of living adjustments, market adjustments, merit increases, and other increases to the City Manager’s compensation; and
WHEREAS, the City Council has determined that the City Manager’s exceptional performance and the market for high quality executive leadership justify an increase to the City Manager’s compensation and an extension of his contract term.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS:
Section 1. Agreement Amendment
The Mayor is hereby authorized to execute the Third Amendment to the City Manager Employment Agreement attached hereto and incorporated herein.
Section 2. Amendment to Salary Schedule
The City-Wide Classification and Compensation Plan is hereby amended with respect to the position of “City Manager” only, retroactively effective May 13, 2025 as set forth below:
Title Current
Grade
Current
Status
Grade Status Monthly Min
$
Monthly
Max $
Unit
City
Manager
999 Active 529 Active $27,916.67* *Per
Contract
EXEC
Section 3.This resolution shall become effective immediately upon adoption.
Resolution No. 10513, authorizing the Mayor to execute the Third Amendme... Page 891 of 1094 2 Section 4.The City Clerk Shall certify to the adoption of this resolution PASSED, APPROVED AND ADOPTED on this 20th day of August, 2025.
CITY OF INDIO
________________________________
GLENN MILLER, MAYOR
ATTEST:
______________________________
SABDI SANCHEZ, MMC
DIR. OF CITY CLERK SERVICES
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City Council
August 20, 2025
STAFF REPORT
To: City Council
From: Bryan H. Montgomery, City Manager
Prepared by: Jonathan Nicks, Assistant City Manager
Subject: Introduction of Ordinance No. 1821, to approve a Development Agreement for the Pulte Desert Retreat housing development encompassing up to 1,500 homes.
RECOMMENDATION:
Staff recommends that the City Council introduce first reading of Ordinance No. 1821, approving the Development Agreement for the Pulte Desert Retreat project.
SUMMARY:
The Development Agreement sets a framework for the Desert Retreat Specific Plan to move forward with constructing up to 1,500 homes and necessary public infrastructure funded and built by Pulte Home Company, LLC. The agreement balances vested development rights with community benefits including significant public improvements and a new IID substation to support electrical needs.
Financing safeguards, fee structures, and public infrastructure milestones are outlined, providing predictability for both the Developer and the City over the 15 year term.
BACKGROUND INFORMATION:
On August 16, 2023 the City Council approved the Desert Retreat Specific Plan, approved and certified the project Environmental Impact Report (EIR), and tentative tract map 38470. The development is an active-adult residential community on approximately 378 acres allowing for the construction of up to 1,500 homes. The project includes a central community clubhouse with outdoor amenities such as pickle ball courts, bocce ball courts, tennis courts, and water features.
The proposed Development Agreement between the City of Indio and Pulte Home Company, LLC outlines the terms for the development of the homes, associated amenities and necessary infrastructure. The main points of the agreement are as follows:
Project Scope: Development includes housing, public infrastructure (roads, sewer, water, flood control), and a new electrical substation, guided by approved plans including the Desert Retreat Specific Plan and certified Environmental Impact Report (EIR).
Term: The agreement is effective for 15 years from its effective date, extendable by mutual consent.
Vesting Rights: Developer has vested rights to develop the project consistent with approved plans and zoning rules as of the effective date, protecting against conflicting future regulations unless they concern public health, safety, changes in state/federal law, or other specified exceptions.
AGENDA ITEM #11.1
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Public Improvements: Developer is responsible for designing, funding, and constructing all necessary public infrastructure and frontage improvements in phases, with specific milestones tied to issuance of certificates of occupancy, including:
Southern half of Avenue 38 along the property frontage, Full-width street improvements between Avenue 39 & Sun City Blvd Northern half of Avenue 40 along the property frontage Western half of Madison Street along the property frontage. Maintenance all of the frontage landscaping along Avenue 38, Avenue 40, Jefferson Street, and Madison Street.
Community Benefits: Developer is providing the following benefits to the City and area residents:
New IID Electric Substation. Developer provides land, a share (25%) of construction costs, and site preparation for a new IID substation essential for project electric power supply. The new City existing reliability and resiliency to additional provide will substation system residents, as well as provide additional capacity to serve future development within the City.
The estimated construction contribution is $5.5M, paid as follows:
o $2.5M Initial deposit due the effective date of Development Agreement. o $1.5M Payment due December 31, 2025.
o $1.5M Final Payment due within 15 days’ notice from the City Subject to adjustment upon completion and approval of final costs.
Avenue 40 Improvements and New Traffic Signal. Developer is installing a new traffic signal at the Project’s main entrance, as well as widening Avenue 40 with additional travel and turn lanes along the Project frontage, which will improve pedestrian, bicycle, golf cart and automobile travel safety in the project vicinity.
Avenue 40 Improvements from Western Project Boundary to Jefferson Street. In addition to the Avenue 40 improvements described above, Developer shall also widen the remaining segment of Avenue 40 and install improvements including, but not limited to, asphalt concrete pavement, curb, gutter and sidewalk improvements on the north side thereof, from the Project’s western boundary to Jefferson Street.
Financing: Developer shall fund all Public Improvements for the Project by means of its own funds and any other means of financing, subject to approval by the City. The City agrees to reasonably cooperate with Developer in the formation of a Mello-Roos Community Facilities District (CFD) or other assessment district or other financing mechanism to help implement the financing plan with the following stipulations:
Bond term of any financing mechanism shall not exceed thirty-five years. Bonds may be issued in one or more series.
Maximum property tax rate shall not exceed two percent (2%)
Fees: Development will contribute approximately $12.2M in fees towards public improvements as identified in the agreement, with a 5-year freeze on fee increases, except inflation adjustments adopted as part of the existing fees applicable citywide.
ATTACHMENTS:
Attachment 1 - Desert Retreat DA Ordinance
Introduction of Ordinance No. 1821, to approve a Development Agreement f... Page 894 of 1094 Attachment 2 - Draft Development Agreement Desert Retreat
APPROVAL(S):
Jennifer A. Mizrahi, Assistant City Attorney Approved - 07 Aug 2025 Ruby D. Walla, Director of Finance Approved - 07 Aug 2025 Bryan H. Montgomery, City Manager Approved - 08 Aug 2025
Introduction of Ordinance No. 1821, to approve a Development Agreement f... Page 895 of 1094
ORDINANCE NO. 1821
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF INDIO,
CALIFORNIA, APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF INDIO AND PULTE HOME COMPANY, LLC
FOR THE DESERT RETREAT PROJECT AND AUTHORIZING
EXECUTION AND RECORDATION
WHEREAS, the City of Indio (“City”) and Pulte Home Company, LLC, a Michigan limited liability company (“Developer”), have negotiated a proposed Development Agreement for the Desert Retreat project entitled “Development Agreement between the City of Indio and Pulte Home Company, LLC” (the “Development Agreement” or “Agreement”); and,
WHEREAS, the Desert Retreat project (the “Project”) is a master-planned, active-adult residential community on approximately 378 acres generally north of Avenue 40, south of Avenue 38, east of Jefferson Street, and west of Madison Street, with up to 1,500 homes and associated amenities and infrastructure; and, WHEREAS, on August 16, 2023, the City Council took all necessary land-use actions for the Project, including: (1) adoption of the Desert Retreat Specific Plan by Resolution No. 10386; (2) certification of the Project Environmental Impact Report by Resolution No. 10388; and (3) approval of Tentative Tract Map No. 38470 by Resolution No. 10387 (collectively, the “Project Approvals”); and, WHEREAS, the Development Agreement does not involve a “land use matter” within the meaning of Indio Unified Development Code (“UDC”) §
6.05.02(C)(2) and therefore proceeds directly to the City Council for review and decision as both planning agency and legislative body; it is largely administrative in nature, vesting previously approved entitlements and addressing (i) siting/financing/construction timing for an Imperial Irrigation District (“IID”) substation, (ii) frontage improvements and related traffic control/utility work (including along Avenue 40 and the segment to Jefferson Street), (iii) Community Facilities District (CFD) financing/revenue handling and related public safety funding, and (iv) expedited plan review and inspection. The Agreement does not modify density, height, permitted uses, or other traditional land-use standards previously approved; and,
WHEREAS, Government Code § 65867 requires that the planning agency hold a public hearing on a development agreement. Pursuant to Government Code § 65100, the City Council convened as the planning agency, duly noticed and held said public hearing, considered the Agreement and the administrative record, as planning agency hearing and legislative body; and,
WHEREAS, the Developer executed the Agreement prior to City Council consideration, consistent with UDC § 6.05.02(F)(1); and, WHEREAS, California Environmental Quality Act (CEQA). The City Council previously certified the Project EIR for the Desert Retreat Specific Plan on August
Introduction of Ordinance No. 1821, to approve a Development Agreement f... Page 896 of 1094
16, 2023. Approval of the Development Agreement is within the scope of the Project EIR and does not involve changes or new information triggering subsequent or supplemental review.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF INDIO DOES ORDAIN AS FOLLOWS:
Section 1. Findings (UDC § 6.05.02(G)).
Based on the staff report, the Development Agreement, the Project Approvals, the CEQA record, the public hearing, and all evidence in the administrative record, the City Council finds:
A. General Plan / Specific Plan Consistency. The Development Agreement and its provisions are consistent with the City’s General Plan and the Desert Retreat Specific Plan, and with the Project Approvals adopted on August 16, 2023.
B. Orderly Development / Property Values. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values.
C. Health, Safety, and Welfare. The Development Agreement will not be detrimental to the public health, safety, and general welfare.
D. Review Authority. The Development Agreement does not involve a land- use matter under UDC § 6.05.02(C)(2); therefore, the City Council is the review authority and may approve, modify, or deny the Agreement consistent with UDC § 6.05.02(F).
E. CEQA. The City Council finds that the proposed Development Agreement is exempt from further CEQA review under the "Common Sense Exemption" (CEQA Guidelines § 15061(b)(3)). This exemption applies when it can be clearly seen that a project will not have a significant environmental effect. The development agreement involves only an agreement, with no immediate construction or development proposed.
The proposed agreement aligns with the analysis of the Final Environmental Impact Report (FEIR) certified by the City Council and does not introduce any new environmental impacts beyond those already evaluated in the FEIR. There is no substantial evidence that any exceptions to exemptions apply to this project.
Section 2. Approval; Incorporation by Reference; Exhibit.
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A. The City Council approves the Development Agreement between the City of Indio and Pulte Home Company, LLC for the Desert Retreat project.
B. The Development Agreement is incorporated by reference into this ordinance as Exhibit A, on file with the City Clerk.
C. The City Council authorizes the City Manager to approve minor, non- substantive corrections and to permit operating memoranda consistent with the Agreement and this approval, provided they do not materially alter the rights or obligations of the parties.
Section 3. Procedure.
The City Council hereby confirms that it convened as the planning agency and legislative body for the City of Indio and held a duly noticed public hearing, considered all testimony and evidence, and then introduced and adopted this Ordinance.
Section 4. Authorization to Execute.
Within 10 days after this Ordinance takes effect, the City Manager or their designee is authorized and directed to execute the Development Agreement on behalf of the City. The City Clerk shall record the fully executed Development Agreement with the Riverside County Recorder.
Section 5. Severability.
The City Council declares that each section, subsection, paragraph, sentence, clause, phrase, term, condition, requirement, exhibit, and attachment of this Ordinance, and each of their applications to any person or circumstance, is severable; and if any portion of this Ordinance, or its application to any person or circumstance, is held invalid, unconstitutional, void, preempted, or otherwise unenforceable by a court of competent jurisdiction, such decision shall be limited to the specific portion or application so adjudged and shall not affect the validity or enforceability of the remainder or of other applications, which shall continue in full force and effect. To the extent permitted by law, any invalid or unenforceable portion shall be reformed, modified, or construed (“blue-penciled”) to the minimum extent necessary to render it valid and enforceable while effectuating the Council’s intent, and any non-enforcement due to conflict or preemption shall be limited to the extent of such conflict or preemption. The invalidity or non-enforcement of any procedural provision (including noticing, hearing format, or publication) shall not impair the validity or effectiveness of the substantive approval of the Development Agreement incorporated by this Ordinance, and vice versa. Any portion of this Ordinance stayed or enjoined shall automatically be reinstated, without further Council action, if the stay or injunction is vacated, dissolved, reversed, or otherwise terminated. The Council further declares that it would have adopted this Ordinance independently of any portion that may be declared invalid, unconstitutional, preempted, or unenforceable.
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Section 6. Publication; Effective Date; Certification.
The City Clerk shall certify to the passage of this Ordinance, including the vote thereon, and shall cause it to be posted or published in accordance with state law.
This Ordinance was introduced on [INTRODUCTION DATE] and adopted on [ADOPTION DATE]; except as otherwise provided by law, it shall take effect thirty (30) days after adoption. The Mayor or presiding officer shall sign this Ordinance and the City Clerk shall attest and certify the same.
PASSED, APPROVED AND ADOPTED this _____ of _________, 2025. _______________________________
GLENN MILLER, MAYOR
ATTEST:
CITY CLERK
________________________________
SABDI SANCHEZ, MMC
DIR. OF CITY CLERK SERVICES
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WHEN RECORDED MAIL TO:
(Space Above This Line Reserved for Recorder’s Use Only)
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF INDIO
AND
PULTE HOME COMPANY, LLC
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TABLE OF CONTENTS
Page
(i)
ARTICLE 1 GENERAL PROVISIONS ......................................................................................2
1.1 Incorporation of Preamble, Recitals and Exhibits ...................................................2
1.2 Definitions................................................................................................................3
1.3 Term.........................................................................................................................3 ARTICLE 2 APPLICABLE LAW ...............................................................................................3
2.1 Applicable Rules Regulations..................................................................................3
2.2 Future Changes to Applicable Rules........................................................................3
2.3 Applicability of Uniform Code Regulations............................................................4
2.4 Public Health and Safety Exception ........................................................................4
2.5 Changes in State or Federal Laws............................................................................6
2.6 CEQA.......................................................................................................................6
2.7 Subsequent Approvals .............................................................................................6
2.8 Regulatory Agency Approvals.................................................................................7
2.9 Changes to Development Agreement Statute ..........................................................8 ARTICLE 3 DEVELOPMENT OF THE PROJECT ...................................................................8
3.1 Development Rights.................................................................................................8
3.2 Vested Elements.......................................................................................................8
3.3 Life of Subdivision Maps and Other Project Approvals..........................................9
3.4 Compliance with CEQA ..........................................................................................9
3.5 Compliance with Project Approvals ......................................................................10
3.6 Development Timing .............................................................................................10
3.7 Final Subdivision Maps .........................................................................................14
3.8 Provision and Financing of Public Improvements.................................................10 ARTICLE 4 OBLIGATIONS OF DEVELOPER ......................................................................13
4.1 IID Substation Obligations ....................................................................................13
4.2 Payment of Fees and Costs ....................................................................................14
4.3 Hold Harmless and Indemnification of City..........................................................15
4.4 Provision of Community Benefits .........................................................................16
4.5 Developer Representations and Warranties...........................................................16
4.6 Release of Settlement Funds to City……………………………………………..17 ARTICLE 5 OBLIGATIONS OF CITY ....................................................................................17
5.1 Processing During Third Party Litigation..............................................................17
5.2 Fee Credits for Release of Settlement Funds.........................................................17
5.3 Expeditious Processing ..........................................................................................18 ARTICLE 6 MUTUAL OBLIGATIONS...................................................................................18
6.1 Notice of Completion or Revocation .....................................................................18
6.2 Estoppel..................................................................................................................18
6.3 Good Faith and Fair Dealing..................................................................................18
6.4 Other Necessary Acts.............................................................................................18
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(ii)
6.5 Compliance with Financing Plan...........................................................................18 ARTICLE 7 ANNUAL REVIEW OF DEVELOPER’S COMPLIANCE .................................19
7.1 Procedure ...............................................................................................................19
7.2 Noncompliance and Cure.......................................................................................19
7.3 Effect on Permitted Transferees.............................................................................19 ARTICLE 8 AMENDMENT; TERMINATION........................................................................20
8.1 Amendment or Termination of Agreement............................................................20
8.2 Expiration; Termination.........................................................................................20
8.3 Insubstantial Modifications and Operating Memoranda........................................20
8.4 Amendments to Project Approvals ........................................................................20 ARTICLE 9 TRANSFER AND ASSIGNMENT; RELEASE; RIGHTS OF
MORTGAGEES; CONSTRUCTIVE NOTICE................................................................21
9.1 Right to Assign ......................................................................................................21
9.2 Release upon Permitted Transfer...........................................................................21
9.3 Rights of Mortgagees; Not Obligated to Construct; Right to Cure Default ..........23
9.4 Constructive Notice ...............................................................................................24 ARTICLE 10 ENFORCEMENT OF AGREEMENT; REMEDIES FOR DEFAULT; DISPUTE RESOLUTION.................................................................................................24
10.1 Events of Default ...................................................................................................24
10.2 Meet and Confer ....................................................................................................24
10.3 Remedies and Termination ....................................................................................25
10.4 Legal Action by Parties..........................................................................................25
10.5 Attorneys’ Fees ......................................................................................................26
10.6 No Waiver..............................................................................................................26 ARTICLE 11 MISCELLANEOUS PROVISIONS......................................................................26
11.1 Entire Agreement...................................................................................................26
11.2 Binding Covenants; Run With the Land................................................................26
11.3 Applicable Law and Venue....................................................................................26
11.4 Construction of Agreement....................................................................................27
11.5 Project Is a Private Undertaking; No Joint Venture or Partnership.......................27
11.6 Force Majeure ........................................................................................................27
11.7 Recordation............................................................................................................27
11.8 Signature in Counterparts ......................................................................................27
11.9 Computation of Time; Time of the Essence ..........................................................27
11.10 Notices ...................................................................................................................27
11.11 No Third Party Beneficiaries .................................................................................27
11.12 Conflict of Interest .................................................................................................27
11.13 Severability ............................................................................................................27
11.14 Further City Actions ..............................................................................................27
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(iii)
Exhibits
Exhibit A Legal Description Of Pulte Property
Exhibit B Legal Description of Future Acquisition Property Exhibit C Construction Phasing
Exhibit D New Substation Payment Schedule
Exhibit E Existing Development Fees
Exhibit F Form: Assignment And Assumption Agreement
Appendix I Definitions
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DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF INDIO
AND
PULTE HOME COMPANY, LLC
THIS DEVELOPMENT AGREEMENT (“Agreement”) dated for reference purposes only as of August ____, 2025, and effective as of the Effective Date, is by and between the City of Indio, a California municipal corporation (“City”), and Pulte Home Company, LLC, a Michigan limited liability company (“Developer”) pursuant to the authority of Sections 65864 et seq. of the California Government Code. City and Developer are also sometimes referred to individually as a “Party” and together as the “Parties.” An index of all capitalized defined terms is included at the end of this document.
RECITALS
This Agreement is entered upon the basis of the following facts, understandings and intentions of City and Developer.
A. In order to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs and risk of development, the Legislature of the State of California enacted Section 65864 et seq. of the Government Code (the “Development Agreement Statute”), which authorizes the City and a developer having a legal or equitable interest in real property to enter into a binding development agreement, establishing certain development rights in the property.
B. Developer is the owner of that certain real property located in the City of Indio, County of Riverside, California and legally described on Exhibit A attached hereto and incorporated herein, and is under contract to purchase that certain real property located in the City of Indio, County of Riverside, California and legally described on Exhibit B attached hereto and incorporated herein (collectively, the “Property” or “Project Site”). The rights and obligations of Developer under this Agreement shall attach to all property owned by Developer, as and when Developer acquires fee title to such property, including attaching to the real property currently owned by Developer, as described on Exhibit A, upon recordation of this Agreement. The Project Site is generally located north of Avenue 40, south of Avenue 38, east of Jefferson Street, west of Madison Street, and consisting of approximately 378 acres.
C. Developer intends to develop the Property with a master-planned, active-adult residential community with up to 1,500 homes, along with a community clubhouse, open space, trails, and other recreational amenities, as well as a new electrical substation, roads, sewer, water, flood control and other improvements necessary to serve the community (the “Project”). The Project is more fully described in, and subject to, (i) this Agreement, (ii) the Desert Retreat Specific Plan approved by the City Council on August 16, 2023 by Resolution No. 10386, (iii) the Environmental Impact Report prepared for the Project, approved and certified by the City Council on August 16, 2023 by City Council Resolution No. 10388 (the “Project EIR”), (iv) Tentative Tract Map No. 38470 approved by the City Council on August 16, 2023 by City Council Resolution No. 10387, (v) any future discretionary or ministerial approvals and/or permits issued for the Project (collectively, the “Project Site Development Permits”), and (vi)
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the conditions of approval associated with each and all of the foregoing approvals (collectively, the “Conditions of Approval”). The documents, permits, approvals, and conditions described in the foregoing clauses (i) through (vi) are collectively referenced herein as the “Project Approvals.”
D. The complexity, magnitude and long-range nature of the Project would be difficult for Developer to undertake if the City had not determined, through this Development Agreement, to inject a sufficient degree of certainty in the land use regulatory process to justify the substantial financial investment associated with development of the Project. As a result of the execution of this Agreement, both Parties can be assured that the Project can proceed without disruption caused by a change in planning and development policies and requirements, which assurance will thereby reduce the actual or perceived risk of planning, financing, and proceeding with construction of the Project.
E. For the reasons recited herein, City and Developer have determined that the Project is a development for which this Development Agreement is appropriate. This Development Agreement will eliminate or reduce uncertainty regarding Project Approvals, thereby encouraging planning for, investment in, and commitment to the use and development of the Property as well as facilitate construction of a new electrical substation to serve the Project and the surrounding community. Development of the Project will in turn provide substantial employment and property tax benefits as well as other public benefits, thereby achieving the goals and purposes for which the Development Agreement Statute was enacted.
F. The City Council has determined that this Agreement is consistent with the City’s General Plan and the Desert Retreat Specific Plan, including the goals and objectives thereof.
G. All actions taken by the City in connection with approving this Agreement have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act (Public Resources Code Section 21000, et seq.) (“CEQA”), and all other requirements for notice, public hearings, findings, votes and procedural matters. In connection therewith, the City Council has found and determined that this Agreement is consistent with the Project Approvals and will not cause any new or substantially more severe environmental effects than previously analyzed, disclosed and mitigated as set forth in the Project EIR.
H. On ____________, 2024, the City Council adopted its Ordinance No.___ approving this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals of fact and the mutual covenants and promises set forth herein, the City and Developer hereby agree as follows:
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AGREEMENT
ARTICLE 1
GENERAL PROVISIONS
1.1Incorporation of Preamble, Recitals, and Exhibits. The preamble paragraph, Recitals, Exhibits, and any Appendices, and all defined terms contained therein, are hereby incorporated into this Agreement by this reference as if set forth in full.
1.2Definitions. The capitalized terms used in this Agreement shall have the meanings set forth in Appendix I attached hereto and otherwise as defined in the body of this Agreement.
1.3Term.
1.3.1Effective Date. This Agreement shall become effective upon the later of (i) the date of execution of this Agreement by both Parties, and (ii) the effective date of Ordinance No. ________ approving this Agreement (the “Effective Date”). Notwithstanding the foregoing or any provision of this Agreement to the contrary, if after all appeals or time to appeal have been exhausted, a court of competent jurisdiction enters a final judgment or issuance of a final order directed to the City to set aside, withdraw, or abrogate the approval of this Agreement, then this Agreement shall be deemed to have no force or effect upon either Party.
1.3.2Term of Agreement. The term of this Agreement shall commence upon the Effective Date and shall continue in full force and effect thereafter for a period of fifteen (15) years (“Initial Term”) unless extended pursuant to the mutual agreement of the Parties or earlier terminated as provided elsewhere in this Agreement (the term of this Agreement, as may be so extended or terminated, is herein referred to as the “Term”). The Initial Term has been established by the Parties in order to provide ample time to develop the Project and obtain the community benefits of the Project, including but not limited to completion of the new electrical substation proposed on a portion of the Project Site.
ARTICLE 2
APPLICABLE LAW
2.1Applicable Rules. Except as otherwise expressly provided in this Agreement, during the Term, the Project Approvals, including any future applications for discretionary or ministerial approvals and/or permits necessary or convenient for implementation of the Project (collectively, “Subsequent Approvals”) shall be processed, considered, reviewed, and acted upon in accordance with the rules, regulations, ordinances, and officially adopted policies of the City in full force and effect as of the Effective Date of this Agreement (collectively, the “Applicable Rules”).
2.2Future Changes to Applicable Rules.
2.2.1 To the extent any changes in the Applicable Rules, or any provisions of future general plans, specific plans, zoning ordinances, or other rules, regulations, ordinances or policies (whether adopted by means of ordinance, initiative, referenda, resolution, policy, order,
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moratorium, or other means) of the City (collectively, “Future Changes to the Applicable Rules”) are not in conflict with the Vested Elements (as defined in Section 3.2 below), such Future Changes to the Applicable Rules shall be applicable to the Project.
2.2.2 Future Changes to the Applicable Rules shall be deemed to be in “conflict” with the Vested Elements if any one of the following would occur:
2.2.2.1 Alter or change any land use, including permitted or conditional uses, of the Project Site from that permitted under this Agreement and the Applicable Rules. For the avoidance of doubt, any future Citywide restrictions or limitations on short-term rentals shall not be deemed to conflict with the Vested Elements and would be applicable to the Project.
2.2.2.2 Limit or reduce the height or bulk of the Project, or any portion thereof, or otherwise require any reduction in the height or bulk of individual proposed buildings or other improvements from that permitted under this Agreement and the Applicable Rules.
2.2.2.3 Limit or reduce the density or intensity of the Project, or any portion thereof, or otherwise require any reduction in the square footage or number of proposed buildings, residential dwelling units, parking or loading spaces, or other improvements from that permitted under this Agreement and the Applicable Rules.
2.2.2.4 Except as otherwise provided in this Agreement, in any manner unreasonably control, delay, or limit the rate, timing, phasing, or sequencing of the approval, development, or construction of all or part of the Project.
2.2.2.5 Increase any Development Fees, except as expressly permitted by this Agreement.
2.2.2.6 Except as otherwise provided in this Agreement, materially increase (by an amount greater than 15%) the cost of performance of, or preclude compliance with, any provision of the Project Approvals.
2.2.2.7 Conflict with or materially increase the obligations of Developer under this Agreement.
2.2.2.8 Adversely affect in any material respect the rights of Developer under this Agreement.
2.2.2.9 Limit or restrict the availability of public utilities, services, infrastructure, or facilities (for example, without limitation, water rights, water connection or sewage capacity rights, sewer connections, etc.) to the Project.
2.2.2.10 Except as expressly provided herein, impose limits or controls in the rate, timing, phasing, or sequencing of development of the Project beyond those existing on the Effective Date.
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2.2.2.11 Limit or control the location of buildings, structures, grading, or other improvements of the Project inconsistently with or more restrictively than limitations included in the Project Approvals.
2.2.2.12 Apply to the Project any Future Changes to the Applicable Rules otherwise allowed by this Agreement that are not uniformly applied to all substantially similar types of development projects and project sites under the City’s jurisdiction.
2.2.2.13 Require the issuance of additional permits or approvals by the City other than those required by the Applicable Rules.
2.2.2.14 Establish, enact, increase, or impose against the Project or Property any fees, assessments, or other monetary obligations other than those specifically permitted by this Agreement; provided, however, that the foregoing shall not prevent or limit the imposition or collection of any generally applicable real or personal property taxes with respect to the Property or any generally applicable sales, use, excise taxes, or business license fees with respect to any commercial uses within the Project.
2.2.2.15 Impose against the Project any condition, dedication, or other exaction not specifically authorized by the Project Approvals, the Applicable Rules, or this Agreement.
2.2.2.16 Subject to Section 2.7, limit the processing of applications and approvals of Subsequent Approvals, including without limitation Future Changes to the Applicable Rules that require additional processing of such applications and approvals of Subsequent Approvals.
2.2.3 To the extent that Future Changes to the Applicable Rules conflict with the Vested Elements, they shall not apply to the Project and the Vested Elements shall apply to the Project, except as provided in this Section 2.2.3 and in Sections 2.3 through 2.6, inclusive. A Future Change in the Applicable Rules that conflicts with the Vested Elements shall nonetheless apply to the Property and the Project if, and only if (i) consented to in writing by Developer in its sole and absolute discretion; (ii) it is determined by the City, and evidenced through express findings, that the change or provision is reasonably required in order to prevent a condition dangerous to the public health or safety as set forth in Section 2.4 below; (iii) required by changes in State or Federal law as set forth in Section 2.5 below; (iv) it consists of changes in, or new fees permitted by, Section 4.2.3.2; (v) it consists of revisions to, or new Uniform Code Regulations to the extent permitted by Section 2.3 below; or (vi) it is otherwise expressly permitted by this Agreement. In the event of any of the foregoing, the applicable Future Change to the Applicable Rules shall be deemed to be a part of the Applicable Rules.
2.2.4 Pursuant to Section 65865.4 of the Development Agreement Statute, unless this Agreement is terminated by mutual agreement of the Parties as provided for under Section 8.1, or terminated pursuant to Section 8.2, either Party may enforce this Agreement notwithstanding any Future Changes to the Applicable Rules.
2.3Applicability of Uniform Code Regulations. Notwithstanding any provision herein to the contrary, nothing in this Agreement shall preclude the City from applying to the
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Project any provisions, requirements, rules, or regulations applicable across the City’s jurisdiction that are contained at any time during the Term in the California Building Standards Code, as amended by the City in accordance with the California Health and Safety Code, including requirements of the applicable Building Code, Administrative Code, Energy Code, Residential Code, Mechanical Code, Electrical Code, Plumbing Code, Fire Code, or other applicable construction codes (collectively, “Uniform Code Regulations”).
2.4Public Health and Safety Exception. The City shall exercise its discretion under this Agreement and the Applicable Rules in a manner which is consistent with the public health, safety, and welfare. Notwithstanding any provision in this Agreement to the contrary, and in addition to application to the Project of Uniform Code Regulations, City shall retain, at all times, its authority to take any legally valid action necessary to protect persons or property from dangerous or hazardous conditions which create a threat to the public health or safety, including, without limitation, authority to condition or deny a permit, approval, or agreement or other entitlement or to change or adopt any new regulations applicable to the Project so long as such condition or denial or new law (i) is limited solely to addressing a specific and identifiable issue in each case required to protect the physical health and safety of the public, and (ii) is based on written findings by City and transmitted to Developer, specifically identifying, based on objective and quantifiable evidence in the official record, the precise nature and extent of the dangerous or hazardous conditions requiring such condition or denial or change in the Applicable Rules, why there are no reasonable alternatives to the imposition of such condition or denial or changes in the law, and how such condition or denial or new law would alleviate the dangerous or hazardous condition (“Public Health and Safety Exception”). Developer retains the right to dispute any City reliance on the Public Health and Safety Exception.
2.5Changes in State or Federal Laws. In accordance with Government Code Section 65869.5, in the event that state or federal laws or regulations enacted after the Effective Date (“State or Federal Law”) prevent or preclude compliance with one or more provisions of this Agreement, the Parties shall meet in good faith for a period not exceeding sixty (60) days (unless such period is extended by mutual written consent of the Parties) to determine the feasibility of any modification or suspension of this Agreement that may be necessary to comply with such State or Federal Law, to determine the effect such modification or suspension would have on the purposes and intent of this Agreement and the Vested Elements, and to prepare such modification. Following the meeting between the Parties, the provisions of this Development Agreement may, to the extent feasible, and upon mutual agreement of the Parties, be modified or suspended, but only to the minimum extent necessary to comply with such State or Federal Law.
In such an event, this Development Agreement together with any required modifications shall continue in full force and effect. In the event that the State or Federal Law operates to frustrate materially and irremediably (a) the Vested Elements, or (b) the City’s right to receive the community benefits as set forth in this Agreement, Developer, in the event of item (a), or the City, in the event of item (b), may terminate this Agreement. In addition, Developer shall have the right to challenge (by any method, including litigation), at its sole cost, the State or Federal Law preventing compliance with, or performance of, the terms of this Development Agreement and, in the event that such challenge is successful, this Development Agreement shall remain unmodified and in full force and effect, unless the Parties mutually agree otherwise, except that if the Term of this Development Agreement would otherwise terminate during the period of any such challenge and Developer has not commenced with the development of the Project in
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accordance with this Development Agreement as a result of such challenge, the Term shall be extended for the period of any such challenge. If Developer raises such a challenge, then City agrees, upon Developer’s written request and at Developer’s sole cost and expense, to cooperate with Developer concerning Developer’s challenge, which cooperation shall be subject to the provisions of Section 6.2; provided, however, that City shall not have any obligation to commence, prosecute, or defend any litigation with respect to any such challenge.
2.6CEQA. Nothing in this Agreement shall be deemed to limit the City’s ability to comply or compel Developer compliance with CEQA, including any mitigation measures in the EIR (“Mitigation Measures”).
2.7Subsequent Approvals.
2.7.1 Processing of Subsequent Approvals. To develop the Project as contemplated in this Agreement, the Project will require land use approvals, entitlements, development permits, and use and/or construction approvals other than the initial Project Approvals identified in subsections (i) though (iv) of Recital C above, which may include, without limitation: development plans, conditional and administrative use permits, plot plans, tentative and final subdivision maps, street abandonments, design plan approvals, certificates of compliance, demolition permits, improvement agreements, infrastructure agreements, grading permits, building permits, right of way permits, site plans, sewer and water connection permits, certificates of occupancy, parcel maps, encroachment permits, and amendments thereto and to the Project Approvals (collectively, “Subsequent Approvals”). City, provided Developer submits all legally required material, reports, and requisite data in order to deem any subsequent approvals complete, will accept, make completeness determinations, and process, promptly and diligently to completion, all applications for Subsequent Approvals in accordance with Applicable Rules and the terms of this Agreement. At such time as any Subsequent Approval is approved by the City, then such Subsequent Approval shall become subject to all the terms and conditions of this Development Agreement applicable to Project Approvals and shall be treated as a Project Approval under this Development Agreement.
2.7.2 Scope of Review of Subsequent Approvals. By approving the Initial Approvals and this Agreement, City has made a final policy decision that the Project is in the best interests of the public health, safety, and general welfare. Accordingly, City shall not use its authority in considering any application for a discretionary Subsequent Approval to change the policy decisions reflected by the Initial Approvals or otherwise to prevent or delay development of the Project as set forth in the Initial Approvals. Instead, the Subsequent Approvals shall be deemed to be tools to implement those final policy decisions. The scope of the review of applications for Subsequent Approvals shall be limited to a review of substantial conformity with the Vested Elements as set forth and subject to Section 3.2 (and except as otherwise provided by Sections 2.2 through 2.6, inclusive, and other Applicable Rules). Where such conformity/compliance exists, City shall not deny an application for a Subsequent Approval.
2.7.3 Conditions of Subsequent Approvals.
2.7.3.1 City shall have the right to impose reasonable conditions upon Subsequent Approvals including, without limitation, normal and customary dedications for rights
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of way or easements for public access, utilities, water, sewers, and drainage necessary for the Project; provided, however, such conditions and dedications shall not be inconsistent with the Applicable Rules, nor inconsistent with the development of the Project as contemplated by this Agreement except to the extent required by the Applicable Rules. Developer may protest any conditions, dedications, or fees while continuing to develop the Property. In the event of a protest by Developer, the City retains the right to pause any Subsequent Approval processes until the protest is resolved, to ensure that the Project proceeds in a manner consistent with the City's interests and regulations, but the City shall not withhold or delay any permit or other approval for any aspect of the Project not directly subject to the Subsequent Approval that is the subject of the protest.
2.7.3.2 Conditions imposed on Subsequent Approvals may only require dedications or reservations for, or construction or funding of, Public Improvements beyond those already included or referenced in the Specific Plan, the TTM or other Initial Approvals, the Mitigation Measures (except to the extent required by CEQA in connection with any Subsequent Approvals) or Section 3.8.1, in the event of a Public Health and Safety Exception, as defined in Section 2.4 of this Agreement. In addition, any and all conditions imposed on Subsequent Approvals for the Project must comply with Section 4.2 (Payment of Fees and Costs).
2.8Regulatory Agency Approvals. The Parties acknowledge and agree that, in addition to the Initial Approvals and any Subsequent Approvals, the Project, including the provision of some of the community benefits, may require Developer to obtain approvals or clearances from various Regulatory Agencies, other third-party public agencies and utilities (collectively, the “Third-Party Agency Approvals”). Without limitation, the Third-Party Agency Approvals may include approvals or clearances from the Coachella Valley Water District (“CVWD”), the Imperial Irrigation District (“IID”), the U.S. Army Corps of Engineers, the California Department of Fish & Wildlife, the State Lands Commission, and the Regional Water Quality Control Board. Developer agrees to use diligent and commercially reasonable efforts to procure the Third-Party Agency Approvals. If requested by Developer, the City shall cooperate with Developer, at Developer’s sole cost, in Developer’s efforts to obtain the Third- Party Agency Approvals. If after using all reasonable efforts, Developer is unable to obtain any Third-Party Agency Approval needed in order for Developer to develop the Project or meet its obligations under this Agreement, including providing the public benefits described in this Agreement, such inability shall constitute a Permitted Delay subject to the provisions of Section 11.6.
2.9Changes to Development Agreement Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute as those provisions existed at the Effective Date. No amendment or addition to those provisions, which would materially affect the interpretation or enforceability of this Agreement, shall be applicable to this Agreement unless such amendment or addition is specifically required by the California Legislature, or is mandated by a court of competent jurisdiction. In the event of the application of such a change in the Development Agreement Statute, the Parties shall meet in good faith to determine the feasibility of any modification or suspension of this Agreement that may be necessary to comply with such change in law and to determine the effect such modification or suspension would have on the purposes and intent of this Agreement and the Vested Elements.
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Following the meeting between the Parties, the provisions of this Agreement may, to the extent feasible and upon mutual agreement of the Parties, be modified or suspended but only to the minimum extent necessary to comply with such change in law. If such amendment or change is permissive rather than mandatory, this Agreement shall not be affected by the same unless the Parties mutually agree in writing to amend this Agreement to permit such applicability.
ARTICLE 3
DEVELOPMENT OF THE PROJECT
3.1Development Rights. Developer shall have a vested right to develop the Project on the Property, in accordance with the Vested Elements.
3.2Vested Elements. The overall design, development, construction, and use of the Project and all improvements in connection therewith, including without limitation, permitted uses of the Property, the maximum density of development, the intensity of use, the maximum height and size of the proposed buildings, provisions for reservation or dedication of land for public purposes, the conditions, terms, restrictions, and requirements for subsequent discretionary actions, the provisions for and financing for public improvements, and the other terms and conditions of development applicable to the Property are as set forth in the Project Approvals, and are hereby vested in Developer, subject to, and as provided in, the provisions of this Development Agreement (the “Vested Elements”). The intent of this Section 3.2 is to cause all development rights which may be required to develop the Project in accordance with this Agreement and the Project Approvals to be deemed to be “vested rights” as that term is defined under California law applicable to the development of land or property and the right of a public agency to regulate or control such development of land or property. City hereby agrees to be bound with respect to the Vested Elements, subject to Developer’s full and timely compliance with the terms and conditions of this Agreement, the Project Approvals, and all Applicable Rules. By stating that the terms and conditions of this Agreement and the Project Approvals control the overall design, development and construction of the Project, this Agreement is consistent with the requirements of California Government Code Section 65865.2 (requiring a development agreement to state permitted uses of the property, the density or intensity of use, the maximum height and size of proposed buildings and provisions for reservation or dedication of land for public purposes). Notwithstanding the preceding provisions of this Section 3.2 or any other provision in this Agreement to the contrary, in the event of any conflict between the terms and conditions of any Project Approvals (including Developer’s rights and obligations thereunder) other than this Agreement, including without limitation any Subsequent Approvals, and the terms and conditions of this Agreement (including Developer’s rights and obligations hereunder), the terms and conditions of this Agreement shall control.
3.3Life of Subdivision Maps and Other Project Approvals.
3.3.1 Life of Subdivision Maps. The terms (lifespan) of the TTM and any other Subdivision Maps approved by the City for the Project shall be automatically extended such that the TTM and all such other Subdivision Maps remain in effect for a period of time coterminous with the Term of this Agreement.
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3.3.2 Life of Other Project Approvals. The term of all other Project Approvals shall be automatically extended such that the Project Approvals remain in effect for a period of time at least as long as the Term of this Agreement, with the exception of construction plan approvals, which shall be valid for the period of time identified within the applicable California Building Standards Code.
3.3.3 Termination of Agreement. In the event that this Agreement is terminated prior to the expiration of the Term of the Agreement for any reason other than a Developer Event of Default, the term of any Subdivision Map approved by the City for the Project or any other Project Approval, as well as the vesting period for any vesting Subdivision Map approved as a Project Approval, shall be the term otherwise applicable to such approval in accordance with the California Subdivision Map Act, which term shall commence to run on the date that such termination of this Agreement takes effect. In the event of any termination of this Agreement for a Developer Event of Default, the provisions of Section 8.2.3 shall govern with respect to the term of the Project Approvals.
3.4Compliance with CEQA. Developer acknowledges that the development of the Project and the Project Site is subject to compliance with CEQA, including but not limited to any applicable Mitigation Measures as may be amended from time to time. The EIR, which has been certified by the City as being in compliance with CEQA, addresses the potential environmental impacts of the Project as it is described in the Initial Approvals. To the extent that the Project will require the issuance of Subsequent Approvals that are discretionary in nature, such Subsequent Approval shall be subject to review by the City during public hearings to the extent required by CEQA or other Applicable Rules. The City will rely on the previously-certified EIR to satisfy the requirements of CEQA to the fullest extent permissible by CEQA, and City will not require a new initial study, negative declaration, EIR addendum, or subsequent or supplemental EIR unless required by CEQA and will not impose on the Project any additional mitigation measures other than specifically required by CEQA. Nothing in this Agreement shall limit the ability of the City to impose conditions on any Subsequent Approvals resulting from Material Changes as such conditions are determined by the City to be necessary to mitigate significant environmental impacts identified through the CEQA process and associated with the Material Changes or otherwise to address significant environmental impacts as defined by CEQA created by a Subsequent Approval; provided, however, any such conditions must be in accordance with CEQA. As used herein, “Material Changes” means the circumstances described in subparts (a), (b), and (c) of Public Resources Code Section 21166.
3.5Compliance with Project Approvals. In developing the Project, Developer shall at all times comply with the Project Approvals and Applicable Rules, and Developer further agrees that all Improvements required to be constructed by Developer for the Project (including all Site Improvements and Offsite Improvements) shall be constructed in accordance with this Agreement, the Project Approvals, and Applicable Law.
3.6Development Timing.
3.6.1Pardee Finding. Development of the Project Site is permitted to occur in phases as described and contemplated in Exhibit C (“Construction Phasing”). The Parties wish to avoid the result of Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984),
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where the failure of the parties there to expressly provide for the timing of development resulted in the court’s determination that a later-adopted initiative restricting the timing of development prevailed over the parties’ agreement. Accordingly, the Parties acknowledge and agree that Developer shall have the right, subject to the provisions of the Project Approvals and the requirements of Sections 4.1 and 4.2 of this Agreement, to develop the Project at such time and in such phases as Developer deems appropriate in the exercise of its subjective business judgment.
3.7Final Subdivision Maps. Developer may from time to time file applications for Subsequent Approvals of final subdivision maps (including phased final subdivision maps) with respect to some or all of the Project Site in accordance with the provisions of the Subdivision Map Act.
3.8Provision and Financing of Public Improvements.
3.8.1 Construction and Dedication. Developer shall be responsible, at its sole cost and expense (except to the extent as may otherwise be provided in this Agreement, including any Financing Mechanism established pursuant to Section 3.8.2), for the design, engineering, and construction of all roads, parks, drainage, sewer, water, and utility improvements, and all other infrastructure and improvements for the Project, including any onsite improvements or offsite improvements, that may or are to be dedicated or otherwise made available for public use pursuant to this Agreement or the Project Approvals (“Public Improvements”). Except as set forth in this Section 3.8.1 or otherwise agreed to in writing by the City, in its reasonable discretion, all Public Improvements serving any particular phase of the Project shall be completed prior to the City’s issuance of the first Certificate of Occupancy for any development within that phase or any earlier date specified in the Project Approvals.
3.8.1.1 Avenue 40 Frontage Improvements. The Project’s frontage improvements along Avenue 40, including but not limited to roadway improvements, curb and gutter, sidewalks, storm drain system, walls, streetlights, landscaping, and irrigation (collectively, “Frontage Improvements”) and required undergrounding of overhead utilities and installation of the new traffic signal at the Project’s main entrance shall be completed prior to issuance of the first certificate-of-occupancy for the Project, subject to any Permitted Delays, including but not limited to improvement plan approvals, coordinating the undergrounding of required IID distribution facilities, and procuring all necessary traffic signal components.
3.8.1.2 Madison Street Frontage Improvements. The Project’s Frontage Improvements on and along Madison Street, as well as required undergrounding of overhead utilities and installation of the all-way stop sign-controlled intersection improvements at the Project entrance on Madison Street, shall be completed prior to issuance of the first certificate-of-occupancy in the Project, subject to any Permitted Delays.
3.8.1.3 Jefferson Street Frontage Improvements. The Project’s Frontage Improvements along Jefferson Street shall be completed prior to issuance of the 876 th certificate-of-occupancy for the Project (Phase 4) (or such earlier time as may be required by the Fire Department). Developer also has the option to pay the fair share to the City of Indio for the Project’s Frontage Improvements along Jefferson Street to be completed as part of a Capital
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Improvement Project. Notwithstanding any language in any conditions of approval or other Project documents, Developer shall have no obligation to fund or complete any other improvements to Jefferson Street except as specified in this subsection.
3.8.1.4 Avenue 38 Frontage Improvements. The Project’s Frontage Improvements along Avenue 38 shall be completed prior to issuance of the 1,181 st certificate-of- occupancy for the Project (Phase 5) (or such earlier time as may be required by the Fire Department).
Developer shall maintain and be liable for all Public Improvements unless and until formally accepted by City, or when finally accepted by another authority if another authority has jurisdiction over the Public Improvements, and/or when finally accepted by a public utility if a public utility has jurisdiction over the Public Improvements. Maintenance and repair of sidewalk areas shall be per Municipal Code Section 97.072 REPAIRS OF SIDEWALKS, CURBS AND DRIVEWAYS, AND THE LIKE (Ordinance No. 1060). Upon completion of required Public Improvements hereunder in conformance with the approved plans, Developer shall offer for dedication to City, from time to time as such Public Improvements are completed, those Public Improvements for which the Project Approvals require such offer of dedication, and, City shall promptly accept from Developer such completed Public Improvements in accordance with Applicable Rules (the “Dedicated Public Improvements”). Developer may offer dedication of Dedicated Public Improvements in phases and City shall not refuse to accept such phased dedications or refuse phased releases of bonds or other security so long as all other conditions and requirements for acceptance have been satisfied by Developer, and subject to any such conditions to the Project Approvals pertaining to maintenance of the Public Improvements following acceptance. Upon Developer’s request, and at Developer’s sole cost, City shall reasonably cooperate with Developer (a) to locate any new easements required for the Project so as to minimize interference with development of the Project, and (b) in Developer’s efforts to relocate or remove easements to facilitate development of the Project, provided that such cooperation does not entail any financial or legal liability for the City.
3.8.2 Financing. Developer shall fund all Public Improvements for the Project by means of its own funds and any other means of financing, subject to approval by the City, as generally described in this Section 3.8.2 (the “Financing Plan”). The City agrees to reasonably cooperate with Developer in the formation of a Mello-Roos Community Facilities District (CFD) or other assessment district or other financing mechanism, as deemed appropriate by City and Developer to help implement the Financing Plan, provided that such cooperation does not entail any financial or legal liability for the City., including but not limited to entering into Joint Community Facility Agreements with CVWD, IID, Indio Electric Financing Authority (“IEFA”), and/or other public agencies to fund public facilities, including capital facilities fees (each, a “Financing Mechanism”) that Developer in its sole discretion may elect to initiate related to the Project as and when so requested by Developer, provided that such Financing Mechanisms shall be subject to the following:
3.8.2.1 Developer shall, without need for a written request from the City, advance amounts necessary to pay all actual costs and expenses of City to evaluate and structure any Financing Mechanism, to the end that City will not be obligated to pay any costs related to the formation or implementation of any Financing Mechanism.
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3.8.2.2 Any Financing Mechanism will provide for the reimbursement to Developer of any advances by Developer described in Section 3.8.2.1.
3.8.2.3 Developer shall submit to City Developer’s phasing plan for any Public Improvements to be financed, including the priority and financing needs, as well as proposed improvement areas and/or tax zones. City shall act as the lead agency in forming the Financing Mechanism. Issuance of CFD Bonds shall be in the sole and reasonable discretion of the City Council and shall comply with the City’s Local Goals and Policies for Land Secured Financing in place at the time of issuance.
3.8.2.4 City and Developer will determine, following consultation with any other participating public agencies, the means by which any Public Improvements may be acquired by City or other public agency, as applicable.
3.8.2.5 In addition, any financing may include amounts necessary to discharge any assessment, special tax, or other liens on the Property.
3.8.2.6 Any public financing shall be secured solely by assessments or special taxes levied within the respective district, proceeds of the bonds issued that are placed in a bond fund, reserve fund, or other such fund for the financing and investment earnings thereon.
3.8.2.7 The payment of actual initial and annual administrative costs of City to be incurred in connection with any Financing Mechanism shall be adequately assured, through the inclusion in any assessment or special tax methodology of appropriate provision for such costs as estimated by City, to the end that City shall not be called upon to provide for any initial or annual administrative costs related to any Financing Mechanism.
3.8.2.8 The bond term of any Financing Mechanism shall not exceed thirty-five (35) years, and bonds may be issued in one or more series; the maximum tax rate shall not exceed two percent (2.00%), and special taxes shall be authorized to escalate by two percent (2.00%) annually. Phases 1-4 of the Project have previously annexed to CFD No. _____ (the “Services CFD”). All remaining Phases of the Project shall annex to the Services CFD or such other public safety and maintenance CFD then in effect for development within the City at the time of recordation of a final map encompassing such future Phases ARTICLE 43.8.2.9 The bond term of any Financing Mechanism shall not exceed thirty-five (35) years, and bonds may be issued in one or more series; the maximum tax rate shall not exceed two percent (2.00%), and special taxes shall be authorized to escalate by two percent (2.00%) annually.
OBLIGATIONS OF DEVELOPER
4.1IID Substation Obligations.
4.1.1 Developer to Contribute Land for Substation. In consultation with IID, the IEFA, and City, Developer has selected and acquired an approximately 315-foot x 315-foot site for a new electrical substation, which is located in the southwestern corner of the Project site
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(the “Substation Site”). The Project EIR includes the proposed substation in the Project description and fully analyzes the potentially significant adverse environmental effects of constructing and operating the substation on the Substation Site, including feasible measures to mitigate any such effects. Upon the request of City, IEFA, or IID, Developer shall complete any grading and other site development work required on the Substation Site to IID standards, including but not limited to a 10 foot high block perimeter wall, access gates, and any required drainage improvements, and upon completion of same, shall convey the Substation Site to IEFA free and clear of all liens and encumbrances. In addition, Developer shall acquire all necessary rights-of-way and construct access to the Substation Site in accordance with plans approved by IID to be in accordance with applicable IID standards and design requirements. The secondary access located within the Project shall be maintained in perpetuity by Developer or its successor homeowners association, and the primary access located off-site along Burr Street shall be dedicated to IID or permanently maintained as agreed by IID, the City and Developer, and in compliance with all applicable laws. Any landscaping, irrigation or other improvements to be installed in any easements associated with the Substation Site (i.e., access or utility easement areas) shall require prior IID review and approval, which shall not be unreasonably withheld, and shall be maintained by the Developer or its successor homeowners association.
4.1.2 Developer Contribution to Substation Construction Costs. Developer shall contribute twenty-five percent (25%) of the City and IEFA’s final cost of constructing a new, two 28-MVA transformer bank substation on the Substation Site (the “New Substation”), which amount shall be paid as the substation is constructed according to the payment schedule attached hereto as Exhibit D, as such schedule may be modified by mutual agreement of the parties as the substation costs are actually incurred. . Exhibit D is based on the current total estimated cost of the New Substation, and the final payment amount shall be subject to reconciliation with the final costs incurred prior Developer making such final payment. Notwithstanding the foregoing, Developer’s obligation under this Agreement shall not increase by more than a maximum of ten percent (10%) above the amount shown on Exhibit D.
4.1.3 New Substation Construction. The City and IEFA shall use their good faith and commercially reasonable efforts to cause the New Substation construction to be completed within 12 months following the Effective Date of this Agreement, subject, however, to IID’s authority and responsibility to construct, operate, and maintain the New Substation, as more fully set forth in that certain Project Agreement between IID and IEFA dated November 1, 2023 (the “Project Agreement”). Other than the payments by Developer required pursuant to Section 4.1.2 of this Agreement, and the costs incurred by Developer to acquire, entitle, and improve the Substation Site and access as provided under Section 4.1.1 of this Agreement, City and IEFA shall be responsible for funding all costs associated with construction of the New Substation, including but not limited to all IID and third-party costs for design and engineering work, procurement of materials, construction of the New Substation, and interconnection to the IID electric system, as further defined in the Project Agreement, and the Project shall not be subject to any additional fees or costs imposed by the City or IEFA on new development relating to electrical distribution infrastructure (other than any surcharge or other fees imposed on IID ratepayers/customers on their utility bills).
4.1.4 Electrical Service to the Project. Developer shall be solely responsible for all costs associated with connecting the Project to the New Substation and obtaining electrical
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service to all homes and other improvements in the Project, including but not limited to all construction costs and all fees and other charges imposed by IID.
4.1.5 Reservation of New Substation Capacity. City, IEFA, and Developer shall cooperate, which includes but is not limited to sharing necessary information, providing timely responses, and making reasonable efforts to overcome obstacles, to take all steps required to ensure that the New Substation will, at all times, have sufficient capacity to serve the Project.
Subject to the foregoing, Developer shall have no right to reserve, sell, or assign capacity in the New Substation to any third parties or to serve other properties or development projects, and Developer acknowledges that City, IEFA, and IID shall have the authority to determine what other properties and projects may be served by the New Substation.
4.2Payment of Fees and Costs.
4.2.1 General. All fees, exactions, dedications, reservations, or other impositions to which the Project would be subject, but for this Development Agreement, are referred to in this Development Agreement either as “Administrative Fees” or “Development Fees”. Developer shall timely pay or perform, as applicable, all Administrative Fees and Development Fees applicable to the Project or the Project Site in accordance with the terms of this Agreement.
4.2.2 Administrative Fees. As used in this Agreement, “Administrative Fees” means fees charged by the City, on a City-wide basis in effect at the time to cover the costs of City’s review of applications for any permit or other approval or review or inspection by City.
Administrative Fees are not Development Fees. Applications for Subsequent Approvals shall be charged, and Developer shall timely pay to the City, Administrative Fees to allow City to recover its actual and reasonable costs of processing Subsequent Approvals. Administrative Fees shall be paid in accordance with the City’s ordinances or requirements, as applicable, and the provisions of this Section. Without limiting the foregoing, Developer shall reimburse City or pay directly all reasonable and actual costs relating to the hiring of consultants and the performing of studies as may be necessary to review or process any applications for Project Approvals or perform any related environmental review and City shall provide Developer with detailed invoices relating thereto as part of any reimbursement request. Prior to engaging the services of any such consultant, or authorizing the expenditure of any funds for such consultant, the City shall consult with Developer in an effort to mutually agree to terms regarding (i) the scope of work to be performed, (ii) the projected costs associated with the work, and (iii) the particular consultant that would be engaged to perform the work.
4.2.3 Development Fees.
4.2.3.1 Definition. As used in this Agreement, “Development Fees” means all fees, contributions, exactions, dedications, reservations, or impositions, other than taxes or assessments, whether established for or imposed upon the Project individually or as part of a class of projects, that are imposed by City on the Project in connection with any Project Approval for any purpose, including, without limitation, defraying all or a portion of the cost of public services and/or facilities construction, improvement, operation, and maintenance attributable to the burden created by the Project. Development Fees do not include: (a) any
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Administrative Fee; (b) any Mitigation Measure (unless the Mitigation Measure consists of payment of a Development Fee); (c) any community benefits to be provided by Developer hereunder; (d) taxes or special assessments; (e) any utility connection fees in effect from time to time generally applicable on a City-wide basis to similar land uses as the Project; or (f) any fees, taxes, assessments, or impositions imposed by other entities that the City collects on behalf of such other entities, all of which shall be due and payable by Developer as and when due in accordance with applicable law.
4.2.3.2 Applicability and Payment.
(a) Generally. No Development Fees shall be applicable to the Project except as provided in this Agreement. The Project shall be subject only to the Development Fees as set forth in Exhibit E (“Existing Development Fees”), except as otherwise expressly permitted by this Section 4.2.3.2. Developer shall pay all applicable Development Fees at the time that Developer applies for or obtains, as applicable, a building permit for the Project.
(b) Categories of Development Fees. During the Term no new categories of Development Fees (i.e., categories other than those set forth in the Existing Development Fees) shall apply to development of the Project. (c) Amounts of Development Fees. There shall be no
increase in the amounts of the Existing Development Fees during the first five (5) years of the Term, other than any automatic Construction Cost Index or other inflation-based increase adopted as part of the Existing Development Fees and applicable Citywide.
4.2.3.3 Fee Credits. Developer shall receive the benefit of any credits against Development Fees (“Fee Credits”) if and only to the extent any Fee Credits are specifically set forth in Exhibit E.
4.2.3.4 Quimby and Park Improvement Impact Fee Reductions. In recognition of the reduced persons per household in the Project due to the recorded restriction permitting only senior households (1.8 persons per household vs. 3.0 persons per household assumed in City’s fee study) and the substantial private recreational amenities included in the Project (thus reducing demand on other City parks), and consistent with the Quimby and Park Improvement fees paid for the adjacent Shadow Hills active adult community, Developer shall pay reduced Quimby and Park Improvement Impact Fees as shown on Exhibit E, which includes 60% of the City’s current Park Improvements fee of $2,772/unit, less a 25% credit for the private amenities included in the Project, for a total fee of ($1,337/unit).
4.3Hold Harmless and Indemnification of City. To the fullest extent permitted by law, Developer shall defend with counsel of Developer’s choosing, subject to approval by City, and hold harmless the City and its elected and other officials, officers, agents, and employees (“Indemnified Parties”) from and against any third party Claims brought against the Indemnified Parties: (a) to attack, set aside, void, or annul this Agreement; or (b) resulting or arising from death or injury to any person or for any damage to or loss of property resulting directly or indirectly from Developer’s performance of this Agreement, except to the extent such
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Claims for death, injury, damage, or loss are ultimately determined by a court to be the result of the gross negligence or willful misconduct of the City. If Developer is required to defend the City as set forth above, Developer shall be entitled to select legal counsel to defend the City, subject to the City's approval, at Developer’s cost. In the event of a court order issued as a result of a successful legal challenge as described in item (a) above, the City shall, to the extent permitted by law or court order, in good faith seek to comply with the court order in such a manner as will maintain the integrity of the Project Approvals and avoid or minimize to the greatest extent possible (i) any impact to the development of the Project as provided for in, and contemplated by, the Vested Elements, or (ii) any conflict with the Vested Elements or frustration of the intent or purpose of the Vested Elements.
4.4Provision of Community Benefits. In connection with the Project, Developer is providing the following benefits to the City and area residents (collectively, “Community Benefits”):
4.4.1 New IID Substation. Pursuant to Section 4.1 above, Developer is providing the improved site for the New Substation, which will be located north of Avenue 40 and provide additional system resiliency and reliability to existing City residents, as well as provide additional capacity to serve future development within the City. In addition, Developer is funding a substantial portion of the New Substation cost, and is providing the majority of that funding in advance of constructing and selling homes in the Project.
4.4.2 Avenue 40 Improvements and New Traffic Signal. As set forth in Section
3.8.1 above, Developer is installing a new traffic signal at the Project’s main entrance, as well as widening Avenue 40 with additional travel and turn lanes along the Project frontage, which will improve pedestrian, bicycle, golf cart and automobile travel safety in the project vicinity.
Developer also agrees to cooperate fully with the City in widening or otherwise improving the remaining segment of Avenue 40 between the western boundary of the Project frontage and Jefferson Street, subject to (i) the City’s successful acquisition of any necessary right-of-way, and (ii) City issuing fee credit to Developer for costs incurred by Developer in constructing this portion of Avenue 40 improvements, as stipulated in Section 4.4.3 below.
4.4.3 Avenue 40 Improvements from Western Project Boundary to Jefferson Street. In addition to the Avenue 40 improvements described above, Developer shall also widen the remaining segment of Avenue 40 and install improvements including, but not limited to, asphalt concrete pavement, curb, gutter and sidewalk improvements on the north side thereof, from the Project’s western boundary to Jefferson Street, pursuant to the modified 82’ right-of- way cross-section, or such right-of-way cross section as determined by the City Public Works Director or his/her designee based on available right-of-way, and improvement plans approved by the City Public Works director or his designee, (the “Off-Site Avenue 40 Improvements”).
Upon completion and City's satisfactory inspection of the Off-Site Avenue 40 Improvements, City shall accept the improvements and release to Developer all remaining funds being held by the City pursuant to that certain First Amendment to Settlement and Mutual Release Agreement made and entered into on June 26, 2017, and by and between the City of Indio and SALAMMBO, LLC, which are currently estimated to be
_______________________________________________________ ($__________) (the “Settlement Funds”). By executing the acknowledgment of this agreement included on the
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signature page(s) below, SALAMMBO, LLC, by and through its duly authorized representative, hereby consents to the release of all remaining funds held by the City under the Settlement Agreement, to Developer, pursuant to the terms set forth herein. In addition, upon acceptance of the Off-Site Avenue 40 Improvements, the City shall issue to Developer credits against the Roads and Bridges component of the City’s Development Impact Fee equal to fifty percent (50%) of the Settlement Funds plus any costs reasonably incurred by Developer in completing the Off-Site Avenue 40 Improvements in excess of the Settlement Funds. The Parties and SALAMMBO agree to reasonably cooperate in executing such additional documents and taking such further actions as may be reasonably required to carry out the provisions of this subsection.
The parties acknowledge that IID has expressed an intention to replace and potentially relocate its existing above-ground transmission lines adjacent to the Off-Site Avenue 40 Improvements (the “IID Transmission Line Work”). To the extent the final scope and design of the Off-Site Avenue 40 Improvements are modified in connection with the IID Transmission Work, the parties may document any agreed upon revisions to the Off-Site Avenue 40 Improvements by a signed Operating Memorandum, which shall not require an amendment to this Agreement.
4.5Developer Representations and Warranties. Developer represents, warrants, and covenants to the City, as of the Effective Date and thereafter during the Term, as follows:
4.5.1 Authority. Developer is a Michigan limited liability company duly organized and validly existing, and is authorized to own property and do business in the State of California. Developer has the capacity and full right, power, and lawful authority to own its property and perform the terms and covenants of this Agreement, and the execution, delivery, and performance of this Agreement by Developer has been fully authorized by all requisite action on the part of Developer. The person(s) executing this Agreement on behalf of Developer has all requisite power, right, and authority to do so and to bind Developer to this Agreement.
4.5.2 Valid Binding Agreement. This Agreement and all other documents and instruments which have been executed and delivered by or on behalf of Developer pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute legal, valid, and binding obligations of Developer, enforceable against Developer in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, arrangement, and other laws affecting creditors’ rights, or by application of equitable principles. Developer has no knowledge of any inability to perform its obligations under this Agreement. The execution and delivery of this Agreement by Developer have been duly and validly authorized by all necessary action. No consent, authorization, or approval of, or other action by, and no notice to or filing with any governmental authority, regulatory body, or any other person is required for the execution, delivery, and performance by Developer of this Agreement or any of the terms and covenants herein or therein.
4.5.3 No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any provision, condition, covenant, or other term hereof or thereof, will conflict with or result in a breach of or default under any agreement to which Developer is a party or will result in the creation or
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imposition of any lien upon any assets or property of Developer, other than liens established in accordance with this Agreement.
4.5.4 Pending Proceedings. Developer has no knowledge of any default under any law or regulation or under any order of any court, arbitrator, board, commission or agency, and there are no known claims, actions, suits, or proceeding pending or, to the knowledge of Developer, threatened against or affecting developer, at law of in equity, before any court, arbitrator, board, commission, or agency which might, if determined adversely to Developer, materially affect Developer’s ability to perform its obligations under this Agreement.
4.5.5 Development Experience. Developer has significant expertise and a proven track record in the development of other projects similar in nature and scale to the Project, and possesses robust financial resources, skilled personnel, and all necessary resources, in order to successfully develop the Project and fulfill all of its obligations under this Agreement and the Project Approvals in a timely and efficient manner.
4.6 Public Safety CFD Annexation.
4.6.1 Annexation Requirement. Developer shall cause all of the Property (and any additional territory later made subject to this Agreement through purchase by Developer or by amendment) to be (i) annexed into the City of Indio Community Facilities District No. 2004‑1 (Public Safety) (“CFD 2004‑1”), or (ii) annexed into a newly formed and designated improvement area or tax zone within CFD 2004‑1, or (iii) annexed into or included within a newly formed public safety community facilities district (any of (i)– (iii), the “Public Safety CFD”). The City shall have the sole discretion to select which of the foregoing structures, or combination thereof, will be pursued and may change its election prior to the completion of any formation/annexation proceedings if advisable to accomplish public safety funding objectives, provided the change does not materially delay previously scheduled tentative tract map or final map approvals without a reasonable opportunity for Developer to meet revised scheduling.
4.6.2 Scope of Services/Facilities. The Public Safety CFD may finance (through special taxes, bonds, pay‑as‑you‑go collections, or a combination thereof) any public safety services and/or facilities authorized under the applicable formation and annexation proceedings, including but not limited to police, fire protection, emergency medical/response, related capital improvements, equipment, and administrative costs, to the extent permitted by the Mello‑Roos Community Facilities Act and described in the applicable resolutions.
4.6.3 Cooperation; Costs. Developer shall (i) execute boundary maps, annexation petitions (including unanimous approval, landowner consents and waivers of election timing where permitted), disclosure documents, and any joint community facilities agreements or other instruments reasonably required by the City; (ii) promptly provide title, appraisal, absorption, phasing, and other data reasonably requested to support the annexation/formation; and (iii) advance (subject to reimbursement if and to the extent allowed through the Public Safety CFD) the City’s actual third‑party costs of formation or annexation proceedings (including legal counsel, special tax consultant, fiscal
Introduction of Ordinance No. 1821, to approve a Development Agreement f... Page 922 of 1094 -20-
consultant, appraisal/absorption consultant, election costs, and administrative expenses) on the same basis as other Financing Mechanism cost advances to ensure no financial, legal or administrative burden to the City.
4.6.4 Timing; Condition to Approvals. Developer shall submit any required petitions or consents within thirty (30) days after receipt of written direction from the City and shall use diligent, good faith, and commercially reasonable efforts to effect annexation or formation so that (i) annexation proceedings are completed prior to issuance of any building permit (or such later milestone as the City Manager may approve in writing) and, in any event, (ii) prior to recordation of any final subdivision map creating residential lots unless earlier completed. The Parties may refine milestones via an memorandum without a formal amendment provided no substantive change to obligations occurs.
4.6.5 Disclosure. Developer shall, prior to close of escrow for any lot or unit, provide statutory and contractual disclosures regarding the Public Safety CFD special tax obligations in all purchase contracts and public reports, in a form approved by the City (approval not to be unreasonably withheld).
4.6.6 No Limitation on Other Financing Mechanisms. Formation or annexation into the Public Safety CFD is in addition to (and not in lieu of) any other Financing Mechanism authorized under this Agreement, including without limitation Section 3.8.2, and shall not reduce or offset Developer’s obligations with respect to Public Improvements financed through other mechanisms unless expressly agreed in writing by the City Council.
4.6.7 Failure to Annex. Failure by Developer to timely execute required petitions, consents, or documents, or otherwise to diligently prosecute annexation/formation after written City notice specifying deficiencies and a thirty (30) day cure period (extended as reasonably necessary to obtain third‑party signatures not within Developer’s control provided Developer is diligently pursuing them), shall constitute a Developer Event of Default, subject to the notice and cure provisions of Article 10, and may result in withholding of Subsequent Approvals until cured, to the extent permitted by law.
4.6.8 Adjustments. If state law changes or judicial rulings impose new procedural or substantive requirements affecting the Public Safety CFD, the Parties shall cooperate in good faith to implement functionally equivalent financing (consistent with the purpose of securing sustainable public safety funding for the Project) under any amended statutory authority, without materially increasing Developer’s net special tax burden beyond what would have applied absent such change, unless mutually agreed.
4.6.9 Interpretation. This Section is intended to create a binding covenant running with the land to assure sustainable public safety funding supporting the Project and surrounding community, and shall be construed harmoniously with, and not as limiting, the Financing Plan provisions of Section 3.8.2.